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The Law of Nations or the Principles of Natural Law (1758)

Emmerich de Vattel

BOOK 3, CHAPTER 8
Of the Rights of Nations in War: And, First, of What We Have a Right to Do, and What We Are Allowed to Do to the Enemy’s Person, in a Just War

§ 136. General principles of the rights against an enemy in a just war.1
WHAT we have hitherto said, concerns the right of making war: — let us now proceed to those rights which are to be respected during the war itself, and to the rules which nations should reciprocally observe, even when deciding their differences by arms. Let us begin by laying down the rights of a nation engaged in a just war; let us see what she is allowed to do to her enemy. The whole is to be deduced from one single principle, — from the object of a just war: for, when the end is lawful, he who has a right to pursue that end, has of course, a right to employ all the means which are necessary for its attainment. The end of a just war is to avenge or prevent injury (§ 28) — that is to say, to obtain justice by force, when not obtainable by any other method, — to compel an unjust adversary to repair an injury already done, or give us securities against any wrong with which we are threatened by him. As soon, therefore, as we have declared war, we have a right to do against the enemy whatever we find necessary for the attainment of that end, — for the purpose of bringing him to reason, and obtaining justice and security from him.

§ 137. Difference between what we have a right to do and what is barely allowed to be done with impunity between enemies.
The lawfulness of the end does not give us a real right to any thing further than barely the means necessary for the attainment of that end. Whatever we do beyond that, is reprobated by the law of nature, is faulty, and condemnable at the tribunal of conscience. Hence it is that the right to such or such acts of hostility varies according to circumstances. What is just and perfectly innocent in war, in one particular situation, is not always so on other occasions. Right goes hand in hand with necessity and the exigency of the case, but never exceeds them.

But as it is very difficult always to form a precise judgment of what the present case requires, and as, moreover, it belongs to each nation to judge of what her own particular situation authorizes her to do (Prelim. § 16) — it becomes absolutely necessary that nations should reciprocally conform to general rules on this subject. Accordingly, whenever it is certain and evident that such a measure, such an act of hostility, is necessary, in general, for overpowering the enemy’s resistance, 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 consistent with propriety, although he who unnecessarily adopts it, when he might attain his end by gentler methods, is not innocent before God and his own conscience. In this lies the difference between what is just, equitable, irreprehensible in war, and what is only allowed between nations, and suffered to pass with impunity. The sovereign who would preserve a pure conscience, and punctually discharge the duties of humanity, ought never to lose sight of what we already have more than once observed, — that nature gives him no right to make war on his fellow-men, except in cases of necessity, and as a remedy, ever disagreeable, though often necessary, against obstinate injustice or violence. If his mind is duly impressed 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 harsh in its operation, and more fatal to mankind, than is requisite for his own security and the defense of his rights.

§ 138. The right to weaken an enemy by every justifiable method.
Since the object of a just war is to repress injustice and violence, and forcibly to compel him who is deaf to the voice of justice, we have a right to put in practice, against the enemy, every measure that is necessary in order to weaken him, and disable him from resisting us and supporting his injustice; and we 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.

§ 139. The right over the enemy’s person.
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 aggressor by his unjust resistance: he is the first author of the violence, and obliges me to employ forcible means in order to secure myself against the wrong which he intends to do me either in my person or my property. If the forcible means I employ produce such effect as even to take away his life, he alone must bear the whole blame of that misfortune: for, if I were obliged to submit to the wrong rather than hurt him, good men would soon become the prey of the wicked. Such is the origin of the right to kill our enemies in a just war. When we find gentler methods insufficient 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 shown, are to be comprehended, not only the first author of the war, but likewise all those who join him, and who fight in support of his cause.

§ 140. Limits of this right. An enemy not to be killed after ceasing to resist.
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 submitting and laying down his arms, we cannot with justice take away his life. Thus, in a battle, quarter is to be given to those who lay down their arms; and, in a siege, a garrison offering to capitulate are never to be refused their lives. The humanity with which most nations in Europe carry on their wars at present cannot be too much commended. If, sometimes, in the heat of action, the soldier refuses to give quarter, it is always contrary to the inclination of the officers, who eagerly interpose to save the lives of such enemies as have laid down their arms.2

§ 141. A particular case, in which quarter may be refused.
There is, however, one case in which we may refuse to spare the life of an enemy who surrenders, or to allow any capitulation to a town reduced to the last extremity. It is, when that enemy has been guilty of some enormous breach of the law of nations, and particularly when he has violated the laws of war. This refusal of quarter is no natural consequence 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 must fall on the guilty. When we are at war with a savage nation, who observe no rules, and never give quarter, we may punish them in the persons of any of their people whom we take, (these belonging to the number of the guilty.) and endeavor, by this rigorous proceeding, to force them to respect the laws of humanity. But, wherever severity is not absolutely necessary, clemency becomes a duty. Corinth was utterly destroyed for having violated the law of nations in the person of the Roman ambassadors. That severity, however, was reprobated by Cicero and other great men. He who has even the most just cause to punish a sovereign with whom he is in enmity, will ever incur the reproach of cruelty, if he causes the punishment to fall on his innocent subjects. There are other methods of chastising the sovereign, — such as depriving him of some of his rights, taking from him towns and provinces. The evil which thence results to the nation at large, is the consequence of that participation which cannot possibly be avoided by those who unite in political society.

§ 142. Reprisals3
This leads us to speak of a kind of retaliation sometimes practiced in war, under the name of reprisals. If the hostile general has, without any just reason, caused some prisoners to be hanged, we hang an equal number of his people, and of the same rank, — notifying to him that we will continue thus to retaliate, for the purpose of obliging him to observe the laws of war. It is a dreadful extremity thus to condemn a prisoner to atone, by a miserable death, for his general’s crime; and if we had previously promised to spare the life of that prisoner, we cannot, without injustice, make him the subject of our reprisals.4 Nevertheless, as a prince, or his general, has a right to sacrifice his enemy’s lives to his own safety and that of his men, — it appears that, if he has to do with an inhuman enemy, who frequently commits such enormities, he is authorized to refuse quarter to some of the prisoners he takes, and to treat them as his people have been treated.5 But Scipio’s generosity is rather to be imitated; — that great man, having reduced some Spanish princes, who had revolted against the Romans, declared to them that, on a breach of their faith, he would not call the innocent hostages 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.6 Alexander the Great, having cause of complaint against Darius for some malpractices, sent him word, that if he continued to make war in such a manner, he would proceed to every extremity against him, and give him no quarter.7 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. Whether a governor of a town can be punished with death for an obstinate defense.
How could it be conceived, in an enlightened age, that it is lawful to punish with death a governor who has defended his town to the last extremity, or who, in a weak place, has had the courage to hold out against a royal army? In the last century, this notion still prevailed; it was looked upon as one of the laws of war, and is not, even at present, totally exploded. What an idea! to punish a brave man for having performed his duty! Very different were the principles or Alexander the Great, when he gave orders for sparing some Milesians, on account of their courage and fidelity.8 “As Phyton was led to execution, by order of Dionysius the tyrant, for having obstinately defended the town of Rhegium, of which he was governor, he cried out, that he was unjustly condemned to die for having refused to betray the town, and that heaven would soon avenge his death.” Diodorus Siculus terms this “an unjust punishment.”9 It is vain to object, that an obstinate defense, especially in a weak place, against a royal army, only causes a fruitless effusion of blood. Such a defense may save the state, by delaying the enemy some days longer; and besides, courage supplies the defects of the fortifications.10 The chevalier Bayard having thrown himself into Mezieres, defended it with his usual intrepidity,11 and proved that a brave man is sometimes capable of saving a place which another would not think tenable. The history of the famous siege of Malta is another instance how far men of spirit may defend themselves, when thoroughly determined. How many places have surrendered, which might still have arrested the enemy’s progress for a considerable time, obliged him to consume his strength and waste the remainder of the campaign, and even finally saved themselves, by a better-supported and more vigorous defense! In the last war, whilst the strongest places in the Netherlands opened their gates in a few days, the valiant general Leutrum was seen to defend Coni against the utmost efforts of two powerful armies, — to hold out, in so indifferent a post, forty days from the opening of the trenches, — and, finally, to save the town, and, together with it, all Piemont. If it be urged, that, by threatening a commandant with death, you may shorten a bloody siege, spare your troops, and make a valuable saving of time, — my answer is, that a brave man will despise your menace, or, incensed by such ignominious treatment, will sell his life as dearly as he can, — will bury himself under the ruins of his fort, and make you pay for your injustice. But, whatever advantage you might promise 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 insult and an injury. But, above all, it would be horrible and barbarous to put it in execution; and, if you allow that the threatened consequences must not be realized, the threat is vain and ridiculous. Just and honorable means may be employed to dissuade a governor from ineffectually persevering to the last extremity; and such is the present practice of all prudent and humane generals. At a proper stage of the business, they summon a governor to surrender; they offer him honorable and advantageous terms of capitulation, — accompanied by a threat, that, if he delays too long, he will only be admitted to surrender as a prisoner of war, and at discretion. If he persists, and is at length forced to surrender at discretion, — they may then treat both himself and his troops with all the severity 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 some crime against the conqueror (§ 141).

Resistance carried to extremity does not become punishable in a subaltern, except on those occasions only when it is evidently fruitless. It is then obstinacy, and not firmness or valor: — true valor has always a reasonable object in view. Let us, for, instance, suppose that a state has entirely submitted to the conqueror’s arms, except one single fortress, — that no succor is to be expected from without, — no neighbor, no ally, concerns himself about saving the remainder of that conquered state: — on such an occasion, the governor is to be made acquainted with the situation of affairs, and summoned to surrender; and he may be threatened with death in case of his persisting in a defense which is absolutely fruitless, and which can only lend to the effusion of human blood.12 Should this make no impression on him, he deserves to suffer the punishment with which he has been justly threatened. I suppose the justice of the war to be problematical, and that it is not an insupportable oppression which he opposes: for if this governor maintains a cause that is evidently just, — if he fights to save his country from slavery, — his misfortune will be pitied; and every man of spirit will applaud him for gallantly persevering to the last extremity, and determining to die free.

§ 144. Fugitives and deserters.
Fugitives and deserters, found by the victor among his enemies, are guilty of a crime against him; and he has undoubtedly a right to put them to death. But they are not properly considered as enemies: they are rather perfidious citizens traitors to their country; and their enlistment with the enemy cannot obliterate that character, or exempt them from the punishment they have deserved. At present, however, desertion being unhappily too common, the number of the delinquents renders it in some measure necessary to show clemency; and, in capitulations, it is usual to indulge the evacuating garrison with a certain number of covered wagons, in which they save the deserters.

§ 145. Women, children, the aged, and sick.
Women, children, feeble old men, and sick persons, come under the description of enemies (§§ 70-72); and we have certain rights over them, inasmuch as they belong to the nation with whom we are at war, and as, between nation and nation, all rights and pretensions affect the body of the society, together with all its members (Book II. §§ s81, 82-344). But these are enemies who make no resistance; and consequently we have no right to maltreat their persons or use any violence against them, much less to take away their lives (§ 140). This is so plain a maxim of justice and humanity, that at present every nation in the least degree civilized, acquiesces in it. If, sometimes, the furious and ungovernable soldier carries his brutality so far as to violate female chastity, or to massacre women, children, and old men, the officers lament those excesses; they exert their utmost 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 spared altogether, they must confine themselves to the occupations peculiar to their own sex, and not meddle with those of men, by taking up arms. Accordingly, the military law of the Switzers, which forbids the soldier to maltreat women, formally excepts those females who have committed any acts of hostility.13

§ 146. Clergy, men of letters, etc.
The like may be said of the public ministers of religion, of men of letters, and other persons whose mode of life is very remote from military affairs: — not that these people, nor even the ministers of the altar, are, necessarily, and by virtue of their functions, invested with any character of inviolability, or that the civil law can confer it on them with respect to the enemy: but, as they do not use force or violence to oppose him, they do not give him a right to use it against them. Among the ancient Romans, the priests carried arms: Julius Cæsar himself was sovereign pontiff: — and among the Christians, it has been no rare thing to see prelates, bishops, and cardinals buckle on their armor, and take the command of armies. From the instant of their doing so, 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 presumed, lay claim to inviolability.

§ 147. Peasants, and, in general, all who do not carry arms.
Formerly, every one capable of carrying arms became a soldier when his nation was at war, and especially when it was attacked. Grotius, however,14 produces instances of several nations and eminent commanders,15 who spared the peasantry, in consideration of the immediate usefulness of their labors.16 At present, 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 sword of the enemy. Provided the inhabitants submit to him who is master of the country, pay the contributions imposed, and refrain from all hostilities, they live in as perfect safety as if they were friends: they even continue in possession of what belongs to them: the country people come freely to the camp to sell their provisions, and are protected, as far as possible, from the calamities of war. A laudable custom, truly worthy of those nations who value themselves on their humanity, and advantageous even to the enemy who acts with such moderation. By protecting the unarmed inhabitants, keeping the soldiery under strict discipline, and preserving the country, a general procures an easy subsistence for his army, and avoids many evils and dangers. If he has any reason to mistrust the peasantry and the inhabitants of the towns, he has a right to disarm them, and to require hostages from them: and those who wish to avoid the calamities of war, must submit to the laws which the enemy thinks proper to impose on them.

§ 148. The right of making prisoners of war.
But all those enemies thus subdued or disarmed, whom the principles of humanity oblige him to spare, — all those persons belonging to the opposite party, (even the women and children,) he may lawfully secure and make prisoners, either with a view to 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 some woman or child for whom the sovereign has an affection, he may induce him to accede to equitable conditions of peace, for the sake of redeeming those valuable pledges. At present, indeed, this last mentioned expedient is seldom put in practice by the polished nations of Europe: women and children are suffered to enjoy perfect security, and allowed permission to withdraw wherever they please. But this moderation, this politeness, though undoubtedly commendable, is not in itself absolutely obligatory; and if a general thinks fit to supersede it, he cannot be justly accused of violating the laws of war. He is at liberty to adopt such measures, in this respect, as he thinks most conducive to the success of his affairs. If without reason, and from mere caprice, he refuses to indulge women with this liberty, he will be taxed with harshness and brutality, — he will be censured for not conforming to a custom established by humanity: but he may have good reasons for disregarding, in this particular, the rules of politeness, and even the suggestions of pity. If there are hopes of reducing by famine a strong place, of which it is very important to gain possession, the useless mouths are not permitted to come out. And in this there is nothing which is not authorized by the laws of war. Some great men, however, have, on occasions of this nature, carried their compassion so far as to postpone their interests to the motions of humanity. We have already mentioned, in another place, how Henry the Great acted during the siege of Paris. To such a noble example let us add that of Titus at the siege of Jerusalem: 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 compassion which such a sight raised in him; and he suffered the sentiments of humanity and generosity to prevail over the maxims of war.

§ 149. A prisoner of war not to be put to death.
As soon as your enemy has laid down his arms and surrendered his person, you have no longer any right over his life (§ 140), unless he should give you such right by some new attempt, or had before committed against you a crime deserving death (§ 141). It was therefore a dreadful error of antiquity, a most unjust and savage claim, to assume a right of putting prisoners of war to death, and even by the hand of the executioner. More just and humane principles, however, have long since been adopted. Charles I., king of Naples, having defeated and taken prisoner Conradin, his competitor, caused him to be publicly beheaded at Naples, together with Frederic of Austria, his fellow-prisoner. This barbarity raised a universal horror; and Peter III., king of Arragon, reproached Charles with it as a detestable crime, and till then unheard of among Christian princes.17 The case, however, was that of a dangerous rival, who contended with him for the throne. But supposing even the claims of that rival were unjust, Charles might have kept him in prison till he had renounced them, and given security for his future behavior.

§ 150. How prisoners of war are to be treated.
Prisoners may be secured; and for this purpose they may be put into confinement, and even fettered, if there be reason to apprehend that they will rise on their captors, or make their escape. But they are not to be treated harshly, unless personally guilty of some crime against him who has them in his power. In this case, he is at liberty to punish them: otherwise, he should remember that they are men, and unfortunate.18 A man of exalted soul no longer feels any emotions but those of compassion towards a conquered enemy who has submitted to his arms. Let us, in this particular, bestow on the European nations the praise to which they are justly entitled. Prisoners of war are seldom ill-treated among them. We extol the English and French; we feel our bosoms glow with love for them, when we hear the accounts of the treatment which prisoners of war, on both sides, have experienced from those generous nations. And what is more, by a custom which equally displays the honor and humanity of the Europeans, an officer, taken prisoner in war, is released on his parole, and enjoys the comfort of passing the time of his captivity in his own country, in the midst of his family; and the party who have thus released him rest as perfectly sure of him as if they had him confined in irons.

§ 151. Whether prisoners, who cannot be kept or fed, may be put to death.
Formerly, a question of an embarrassing nature might have been proposed. When we have so great a number of prisoners that we find it impossible to feed them, or to keep them with safety, have we a right to put them to death? or shall we send them back to the enemy, — thus increasing his strength, and exposing ourselves to the hazard of being overpowered by him on a subsequent occasion? At present, the case is attended with no difficulty. Such prisoners are dismissed 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 necessarily has a power of agreeing to the conditions on which the enemy admits his surrender, the engagements entered into by him for saving his life or his liberty, with that of his men, are valid, as being made within the limits of his powers (§§ 19, etc.); and his sovereign cannot annul them. Of this, many instances occurred during the last war: — several Dutch garrisons submitted to the condition of not serving against France or her allies for one or two years: a body of French troops being invested in Lintz, were by capitulation sent back across the Rhine, under a restriction not to carry arms against the queen of Hungary for a stated time; and the sovereigns of those troops respected the engagements formed by them. But conventions of this kind have their limits, which consist in not infringing the rights of the sovereign over his subjects. Thus the enemy, in releasing prisoners, may impose on them the condition of not carrying arms against him till the conclusion of the war; since he might justly keep them in confinement till that period: but he cannot require that they shall for ever renounce the liberty of fighting for their country; because, 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 absolutely inconsistent with their character of citizens or subjects. If their country abandons them, they become free in that respect, and have in their turn a right to renounce their country.

But if we have to do with a nation that is at once savage, perfidious, and formidable, shall we send her back a number of soldiers who will perhaps enable her to destroy us? — When our own safety is incompatible with that of an enemy — even of an enemy who has submitted — the question admits not of a doubt. But to justify us in coolly and deliberately putting to death a great number of prisoners, the following conditions are indispensably necessary: — 1. That no promise have been made to spare their lives; and, 2. That we be perfectly assured that our own safety demands such a sacrifice. If it is at all consistent with prudence either to trust to their parole, or to disregard their perfidy, a generous enemy will rather listen to the voice of humanity than to that of a timid circumspection. Charles XII., being encumbered with his prisoners after the battle of Narva, only disarmed them and set them at liberty: but his enemy, still impressed with the apprehensions which his warlike and formidable opponents had excited in his mind, sent into Siberia all the prisoners he took at Pultowa, The Swedish hero confided too much in his own generosity; the sagacious monarch of Russia united, perhaps, too great a degree of severity with his prudence; but necessity furnishes an apology for severity, or rather throws a veil over it altogether. When Admiral Anson look the rich Acapulco galleon, near Manilla, he found that the prisoners outnumbered his whole ship’s company: he was therefore under a necessity of confining them in the hold, where they suffered cruel distress.19 But had he exposed himself to the risk of being carried away a prisoner, with his prize and his own ship 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 himself reduced, to the cruel necessity of sacrificing the prisoners to his own safety. “In this universal rout,” says Father Daniel, “a fresh misfortune happened, which cost the lives of a great number of French. A remainder of their van was retreating in some order, and many of the stragglers was retreating in some order, and many of the stragglers rallied and joined it. The king of England, observing their motions from an eminence, supposed it was their intention to return to the charge. At the same moment, he received information of an attack being made on his camp, where the baggage was deposited. In fact, some noblemen of Picardy, having armed about six hundred peasants, had fallen upon the English camp. Thus circumstanced, that prince, apprehensive of some disastrous reverse, despatched his aides-de-camp to the different divisions of the army, with orders for putting all the prisoners to the sword, lest, in case of a renewal of the battle, the care of guarding them should prove an impediment to his soldiers, or the prisoners should escape and join their countrymen. The order was immediately carried into execution, and all the prisoners were put to the sword.”20 Nothing short of the greatest necessity can justify so terrible an execution; and the general whose situation requires it, is greatly to be pitied.

§ 152. Whether prisoners of war may be made slaves.
Is it lawful to condemn prisoners of war to slavery? Yes, in cases which give a right to kill them, — when they have rendered themselves personally guilty of some crime deserving of death. The ancients used to sell their prisoners of war for slaves. They, indeed, thought they had a right to put them to death. In every circumstance, when I cannot innocently take away my prisoner’s life, I have no right to make him a slave. If I spare his life, and condemn him to a state so contrary to the nature of man, I still continue with him the state of war. He lies under no obligation to me: for, what is life without freedom? If any one counts life a favor when the grant of it is attended with chains, — be it so: let him accept the kindness, submit to the destiny which awaits him, and fulfill the duties annexed to it. But he must apply to some other writer to teach him those duties: there have been authors enough who have amply treated of them. I shall dwell no longer on the subject; and, indeed, that disgrace to humanity is happily banished from Europe.

§ 153. Exchange and ransom of prisoners.
Prisoners of war, then, are detained, either to prevent their returning to join the enemy again, or with a view to obtain from their sovereign a just satisfaction, as the price of their liberty. There is no obligation to release those who are detained with the latter view, till after satisfaction is obtained. As to the former, whoever makes a just 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 ransom, either as a compensation at the conclusion of a peace, or, if during the continuance of the war, for the purpose of at least weakening his enemy’s finances at the same time that he restores him a number of soldiers. The European nations, who are ever to be commended for their care in alleviating the evils of war, have, with regard to prisoners, introduced humane and salutary customs. They are exchanged or ransomed, even during the war: and this point is generally settled beforehand by cartel. However, if a nation finds a considerable advantage in leaving her soldiers prisoners with the enemy during the war rather than exchanging them, she may certainly, unless bound by cartel, act in that respect as is most conducive to her interest. Such would be the case of a state abounding in men, and at war with a nation more formidable by the courage than the number of her soldiers. It would have ill suited the interests of the czar, Peter the Great, to restore his prisoners to the Swedes for an equal number of Russians.

§ 154. The state is bound to procure their release.
But the state is bound to procure, at her own expense, the release other citizens and soldiers who are prisoners of war, as soon as she has the means of accomplishing it, and can do it without danger. It was only by acting in her service and supporting her cause that they were involved in their present misfortune. For the same reason, it is her duty to provide for their support during the time of their captivity. Formerly, prisoners of war were obliged to redeem themselves: but then the ransom of all those whom the officers or soldiers might take, was the perquisite of the individual captors. The modern custom is more agreeable to reason and justice. If prisoners cannot be delivered during the course of the war, at least their liberty must, if possible, make an article in the treaty of peace. This is a care which the state owes to those who have exposed themselves in her defense. It must, nevertheless, be allowed, that a nation may, after the example of the Romans, and for the purpose of stimulating her soldiers to the most vigorous resistance, enact a law to prohibit prisoners of war from ever being ransomed. When this is agreed to by the whole society, nobody can complain. But such a law is very severe, and could scarce suit any but those ambitious heroes who were determined on sacrificing every thing in order to make themselves master of the world.

§ 155. Whether an enemy may lawfully be assassinated or poisoned.
Since the present chapter treats of the rights which war gives us over the person of the enemy, this is the proper place to discuss a celebrated question, on which authors have been much divided, — and that is, whether we may lawfully employ all sorts of means to take away an enemy’s life? whether we be justifiable in procuring his death by assassination or poison? Some writers have asserted, that, where we have a right to take away life, the manner is indifferent. A strange maxim! but happily exploded by the bare ideas of honor, confused and indefinite as they are. In civil society, I have a right to punish a slanderer, — to cause my property to be restored by him who unjustly detains it: but shall the manner be indifferent? Nations may do themselves justice sword in hand, when otherwise refused to them: shall it be indifferent to human society that they employ odious means capable of spreading desolation over the whole face of the earth, and against which the most just and equitable of sovereigns, even though supported by the majority of other princes, cannot guard himself?

But, in order to discuss this question on solid grounds, assassination is by all means to be distinguished from surprises, which are, doubtless, very allowable in war. Should a resolute soldier steal into the enemy’s camp by night, — should he penetrate to the general’s tent, and stab him, — in such conduct there is nothing contrary to the natural laws of war, — nothing even but what is perfectly commendable in a just and necessary war. Mutius Scævola has been praised by all the great men of antiquity; and Persenna himself, whom he intended to kill, could not but commend his courage.21 Pepin, father of Charlemagne, having crossed the Rhine with one of his guards, went and killed his enemy in his chamber.22 If any one has absolutely condemned such bold strokes, his censure only proceeded from a desire to flatter those among the great, who would wish to leave all the dangerous part of war to the soldiery and inferior officers. It is true, indeed, that the agents in such attempts are usually punished with some painful death, But that is, because the prince or general who is thus attacked exercises his own rights in turn, — has an eye to his own safety, and endeavors, by the dread of a cruel punishment, to deter his enemies from attacking him otherwise than by open force. He may proportion his severity towards an enemy according as his own safety requires. Indeed, it would be more commendable on both sides to renounce every kind of hostility which lays the enemy under a necessity of employing cruel punishments, in order to secure himself against it. This might be made an established custom, — a conventional law of war. The generous warriors of the present age dislike such attempts, and would never willingly undertake them, except on those extraordinary occasions, when they become necessary to the very safety and being of their country. As to the six hundred Lacedæmonians, who, under the conduct of Leonidas, broke into the enemy’s camp, and made their way directly to the Persian monarch’s tent,23 their expedition was justifiable by the common rules of war, and did not authorize the king to treat them more rigorously than any other enemies. In order to defeat all such attempts, it is sufficient to keep a strict watch; and it would be unjust to have recourse to cruel punishments for that purpose: accordingly, such punishments are reserved for those only who gain admittance by stealth alone, or in very small number, and especially if under cover of a disguise.

I give, then, the name of assassination to a treacherous murder, whether the perpetrators of the deed be subjects of the party whom we cause to be assassinated, or of our own sovereign, — or that it be executed by the hand of any other emissary, introducing himself as a supplicant, a refugee, a deserter, or, in fine, as a stranger; and such an attempt I say, 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 because such act is pernicious to human society, 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 assassinate our enemy? Besides, were such a liberty once introduced, the purest virtue, the friendship of the majority of the reigning sovereigns, would no longer be sufficient to insure a prince’s safety. Had Titus lived in the time of the old man of the mountain, —; though the happiness of mankind centered in him, — though punctual in the observance of peace and equity, he was respected and adored by all potentates, — yet, the very first time that the prince of Assassins might have thought proper to quarrel with him, that universal affection would have proved insufficient to save him; and mankind would have lost their “darling.” Let it not here be replied, that it is only in favor of the cause of justice that such extraordinary measures are allowable: for all parties, in their wars, maintain that they have justice on their side. Whoever, by setting the example, contributes to the introduction of so destructive a practice, declares himself the enemy of mankind, and deserves the execration of all ages.24 The assassination of William, prince of Orange, was regarded with universal detestation, though the Spaniards had declared that prince a rebel. And the same 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 shaken their monarchy to its very foundations.

In treacherously administering poison there is something still more odious than in assassination: it would be more difficult to guard against the consequences of such an attempt; and the practice would be more dreadful; accordingly, it has been more generally detested. Of this Grotius has accumulated many instances.25 The consuls Caius Fabricius and Quintus æmilius rejected with horror the proposal of Pyrrhus’s physician, who made an offer of poisoning his master; 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 information, but to avoid the obloquy to which your death would expose us.”26 And they justly observe, in the same letter, that it is for the common interest of all nations not to set such examples.27 It was a maxim of the Roman Senate, that war was to be carried on with arms, and not with poison.28 Even under Tiberius, the proposal of the prince of the Catti was rejected, who offered to destroy Arminius, if poison were sent him for that purpose: and he received for answer, that “it was the practice of the Romans to take vengeance on their enemies by open force, and not by treachery and secret machinations;”29

Tiberius thus making it his glory to imitate the virtue of the ancient Roman commanders. This instance is the more remarkable, as Arminius had treacherously cut off Varus, together with three Roman legions. The senate, and even Tiberius himself, thought it unlawful to adopt the use of poison, even against a perfidious enemy, and as a kind of retaliation or reprisals.

Assassination and poisoning are therefore contrary to the laws of war, and equally condemned by the law of nature and the consent of all civilized nations. The sovereign who has recourse to such execrable means should be regarded as the enemy of the human race; and the common safety of mankind calls on all nations to unite against him and join their forces to punish him. His conduct particularly authorizes the enemy, whom he has attacked by such odious means, to refuse him any quarter. Alexander declared, that “he was determined to proceed to the utmost extremities against Darius, and no longer to consider him as a fair enemy, but as a poisoner and an assassin.”30

The interest and safety of men in high command require, that, so far from countenancing the introduction of such practices, they should use all possible care to prevent it, It was wisely said by Eumenes, that “he did not think any general wished to obtain a victory in such manner as should set a pernicious example which might recoil on himself.”31 And it was on the same principle that Alexander formed his judgment of Bessus, who had assassinated Darius.32

§ 156. Whether poisoned weapons may be used in war.
The use of poisoned weapons may be excused or defended with a little more plausibility. At least, there is no treachery in the case, no clandestine machination. But the practice is nevertheless prohibited by the law of nature, which does not allow us to multiply the evils of war beyond all bounds. You must of course strike your enemy in order to get the better of his efforts: but if he is once disabled, is it necessary that he should inevitably die of his wounds? Besides, if you poison your weapons, the enemy will follow your example; and thus, without gaining any advantage on your side for the decision of the contest, you have only added to the cruelty and calamities of war. It is necessity alone that can at all justify nations in making war: they ought universally to abstain 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 civilized nations have classed among the laws of war the maxim which prohibits the poisoning of weapons;33 and they are all warranted by their common safety to repress and punish the first who should offer to break through that law.

§ 157. Whether springs may be poisoned.
A still more general unanimity prevails in condemning the practice of poisoning waters, wells, and springs, because (say some authors) we may thereby destroy innocent persons, — we may destroy other people as well as our enemies. This is indeed an additional reason: but it is not the only nor even the true one; for we do not scruple to fire on an enemy’s ship, although there be neutral passengers on board. But though poison 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 surrender.34 This is a milder way than that of arms.35

§ 158. Dispositions to be preserved towards an enemy.
I cannot conclude this subject, of what we have a right to do against the person of the enemy, without speaking a few words concerning the dispositions we ought to preserve towards him. They may already be deduced from what I have hitherto said, and especially in the first chapter of the second book. Let us never forget that our enemies are men. Though reduced to the disagreeable necessity of prosecuting our right by force of arms, let us not divest ourselves of that charity which connects us with all mankind. Thus shall we courageously defend our country’s rights without violating those of human nature.36 Let our valor preserve itself from every stain of cruelty, and the luster of victory will not be tarnished by inhuman and brutal actions. Marius and Attila are now detested; whereas we cannot forbear admiring and loving Cæsar; his generosity and clemency almost tempt us to overlook the injustice of his undertaking. Moderation and generosity redound more to the glory of a victor than his courage; they are more certain marks of an exalted soul. Besides the honor which infallibly accompanies those virtues, humanity towards an enemy has been often attended with immediate and real advantages. Leopold, duke of Austria, besieging 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 swell of its waters, carried away the bridge together with those who were stationed on it, — the besieged hastened to the relief of those unfortunate men, and saved the greatest part of them. Leopold, relenting at this act of generosity, raised the siege and made peace with the city.37 The duke of Cumberland, after his victory at Dettingen,38 appears to me still greater than in the heat of battle. As he was under the surgeon’s hands, a French officer, much more dangerously wounded than himself, being brought that way, the duke immediately ordered his surgeon to quit him, and assist that wounded enemy. If men in exalted stations did but conceive how great a degree of affection and respect attends such actions, they would study to imitate them, even when not prompted to the practice by native elevation of sentiment. At present, the European nations generally carry on their wars with great moderation and generosity. These dispositions have given rise to several customs which are highly commendable, and frequently carried to the extreme of politeness.39 Sometimes refreshments are sent to the governor of a besieged town; and it is usual to avoid firing on the king’s or the general’s quarters. We are sure to gain by this moderation, when we have to do with a generous enemy; but we are not bound to observe it any further than can be done without injuring the cause we defend; and it is clear that a prudent general will, in this respect, regulate his conduct by the circumstances of the case, by an attention to the safety of the army and of the state, by the magnitude of the danger, and by the character and behavior of the enemy. Should a weak nation or town be attacked by a furious conqueror who threatens to destroy it, are the defenders to forbear firing on his quarters: Far from it: that is the very place to which, if possible, every shot should be directed.

§ 159. Tenderness for the person of a king who is in arms against us.
Formerly, he who killed the king or general of the enemy was commended and greatly rewarded: the honors annexed the spoila opima are well known. Nothing was more natural: in former times, the belligerent nations had, almost in every instance, their safety and very existence at stake; and the death of the leader often put an end to the war. In our days, a soldier would not dare to boast of having killed the enemy’s king. Thus sovereigns tacitly agree to secure their own persons. It must be owned, that, in a war which is carried on with no great animosity, and where the safety and regard for regal majesty is perfectly commendable, and even consonant to the reciprocal duties of nations. In such a war, to take away the life of the enemy’s sovereign, when it might be spared, is perhaps doing that nation a greater degree of harm than is necessary for bringing the contest to a happy issue. But it is not one of the laws of war that we should on every occasion spare the person of the hostile king: we are not bound to observe that moderation except where we have a fair opportunity of making him prisoner.40


NOTES

     1.    See, in general, the Rights of War; Grotius, ch. vi.; and 1 Chitty’s Commercial Law, 377 to 437; and Chitty’s Law of Nations, per tot. — C.
     2.    From several passages of 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 sea, although the parties had agreed to observe the usual rules of moderation on land. Intelligence being received by the confederate states, that the Spaniards had, by the advice of Spinola, embarked at Lisbon a body of troops destined for Flanders, they dispatched a squadron to wait for them in the strait of Calais, with orders to drown without mercy every soldier that was taken; and the order was punctually executed. — Book xiv. p. 550. — Edit A.D. 1797.
     3.    As to reprisals and letters of marque in general, see ante b??ri. ch. xviii. § 334. — C. [Yes, b??ri is in the original.]      4.    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 — Edit. A.D. 1797.
     5.    Lysander, having captured the Athenian fleet, put the prisoners to death, on account of various cruelties practiced by the Athenians during the course of the war, but principally on account of the barbarous resolution which they were known to have adopted, of cutting off the right hand or every prisoner, in case of victory declaring on their side. He spared Adeimantus alone, who had opposed that infamous resolution. Xenoph. Hist. Græc. lib. ii. cap. i. — Edit. A.D. 1797.
     6.    Neque se in obsides innoxios, sed in ipsos, si defecerint, sæviturum; nec ab inermi, sed ab armato hoste, pœnas expetiturum. — Tit. Liv. lib. xxviii.
     7.    Quint. Curt. lib. iv. cap. i. and ii.
     8.    Arrian. de Exped. Alexand. lib. i. cap. xx.
     9.    Lib. xiv. cap. cxiii., quoted by Grotius, lib. iii. cap. ii. § xvi. n. v.
     10.    The false maxim which formerly prevailed on this subject, is noticed in the relation of the battle of Musselburgh (De Thou, vol. i. p. 287). “The general (the duke of Somerset), the regent of England, was on this occasion much admired for his clemency, which induced him to spare the lives of the besieged (the garrison of a castle in Scotland.) notwithstanding that ancient maxim in war, which declares that a weak garrison forfeit all claim to mercy on the part of the conqueror, when, with more courage than prudence, they obstinately persevere in defending an ill-fortified place against a royal army and when, refusing to accept of reasonable conditions offered to them, they undertake to arrest the progress of a power which they are unable to resist.” — Pursuant to that maxim, Cæsar answered the Aduatici that he would spare their town, if they surrendered before the battering-ram touched their walls; and the duke of Alva strongly blamed prosper Colonna for having granted terms of capitulation to the garrison of a castle, who had refused to treat of a surrender until the cannon had been employed against them. — Edit. A.D. 1797.
     11.    See his life.
     12.    But it is not lawful to employ menaces of every kind in order to induce the governor or commandant of a town to surrender. There are some, against which nature revolts with horror. Louis the Eleventh, being engaged in the siege of St. Omer, and incensed at the long resistance he experienced, informed the governor, Philip, son of Antony, the Bastard of Burgundy, that if he did not surrender the place, his father (who was a prisoner in Louis’s hands) should be put to death in his sight. Philip replied that he would feel the most poignant regret to lose his father, but that his honor was still dearer to him, and that he was too well acquainted with the king’s disposition, to apprehend that he would disgrace himself by the perpetration of so barbarous a deed. — Hist. of Louis XI. book viii — Edit. A.D. 1797.
     13.    See Simler, de Repub. Helvet.
     14.    Book iii. ch. xi. § xi.
     15.    Cyrus, Belisarius, etc.
     16.    Cyrus proposed to the king of Assyria, that both parties should reciprocally spare the cultivators of the soil, and make war only against those who appeared in arms: — and the proposal was agreed to. Xenoph. Cyrop. lib. v. cap. 4.
     17.    Epist. Pet. Arrag. apud Petr. de Vineis.
     18.    In 1593, the council of the Netherlands, at the persuasion of the count de Fuentes, resolved no longer to observe towards the United Provinces that moderation which humanity renders so necessary in war. They gave orders for putting to death every man who should be made prisoner, and, under the same penalty, prohibited the payment of any contributions to the enemy. But the complaints of the nobility and clergy, and still more the murmurs of the military, who saw themselves exposed to an infamous death in case of falling into the enemy’s hands, obliged the Spaniards to re-establish those indispensable usages, which in the words of Virgil {Ain. x. 532}, are called belli commercia, — the ransom or exchange of prisoners, and the payment of contributions to avert pillage and devastation. The ransom of each prisoner was then settled at a month’s pay. — Grotius, Hist. of Netherlands, book iii.
     19.    See Anson’s Voyage round the World. {P. 382, 383. Lond, Ed. 4 to 1756.}
     20.    Hist. of France, Reign of Charles VI.
     21.    See Livy, lib, ii. cap. xii, — Cicero, pro P. Sextio. Valer, Max. lib. iii. cap. iii. — Plutarch, in Poplicol.
     22.    Grotius, lib. iii. cap. 4, § xv ii. n. i.
     23.    Justin, lib. ii. cap, xi.
     24.    See the dialogue between Julius Cæsar and Cicero, in the Mélanges de Litérature et Poésies. — Farrudge, sultan of Egypt, sent to Timur-bec an ambassador, accompanied by two villains, who were to assassinate that conqueror during the audience. This infamous plot being discovered, “It is not,” said Timur, “the maxim of kings to put ambassadors to death: but as to this wretch, who under the sacred barb of religion, is a monster of perfidy and corruption, it would be a crime to suffer him and his accomplices to live.” Pursuant, therefore, to that passage of the Koran which says that “treachery falls on the traitor’s own head,” he ordered him to be dispatched with the same poniard 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 assassins were only condemned to suffer the amputation of their noses and ears; Timur contenting himself with this punishment, and forbearing to put them to death, because he wished to send them back with a letter to the sultan. — {Petis de la Croix.} Hist, of Timur-bec, book v. chap. xxiv. {p. 313 Ed. Edif. 1723}
     25.    Book iii. chap. iv. § xv.
     26.    Oude gar tauta sh cariti mhnuomen, all d pvV mh to son paqoV hmin diabolhn enegkh — Plut. in Pyrr.
     27.    Sed communis exempli et fidei ergo visum est, uti te salvum velimus; ut esset, quem armis vincere possemus. — Aun Gell. Noct Attic lib. iii. cap. viii.
     28.    Armis belia, non venenis, geri debere. — Valer. Maxim. lib. vi. ch. v. num. i.
     29.    Non fraude, neque occultis, sed palam, et armatum, — populum Romanum hostes suos ulcisci. — Tacit. Annal. lib. ii. cap. lxxxviii.
     30.    Quint. Curt. lib, iv. cap. xi. num. xviii.
     31.    Nec Antigonum, nec quemquam ducum, sic velle vincere, ut ipse in se exemplum pessimum statuat. — Justin. lib. xiv. cap. i. num. xii.
     32.    Quem quidem [Bessum] cruci adfixum videre festino, omnibus regibus gentibusque fidel, quam violavit, meritas pœnas solventum. — Q. Curt. lib. vi. ch. iii. num. xiv.
     33.    Grotius, book iii. ch. iv. § xvi.
     34.    Grotius, ibid. § xvii.
     35.    But, in modern warfare, whatever may be the necessary practice in starving the besieged fortress into a surrender, we have instanced the English supplying the French army with medicine, to prevent the progress of a destructive disorder, although, If a petty policy were allowed to prevail, such an indulgence of humane feeling might appear injudicious (ante). — C.
     36.    The laws of justice and equity are not to be less respected even in time of war. The following I quote as a remarkable instance; — Alcibiades, at the head of an Athenian army, was engaged in the siege of Byzantium, then occupied by a Lacedæmonian garrison; and finding that he could not reduce the city by force, he gained over some of the inhabitants, who put him in possession of it. One of the persons concerned in this transaction was Anaxilaus, a citizen of Byzantium, who, being afterwards brought to trial for it at Lacedæmon, pleaded in his defense, that, in surrendering the city, he had not acted through ill-will to the Lacedæmonians, or under the influence of a bribe, but with a view to save the women and children, whom he saw perishing with famine; for Clearchus, who commanded the garrison, had given to the soldiers all the corn that was found in the city. The Lacedæmonians, with a noble regard to justice, and such as seldom prevails on similar occasions, acquitted the culprit, observing that he had not betrayed, but saved the city, and particularly attending to the circumstance of his being a Byzantine, not a Lacedæmonian. — Xenoph. His. Græc. lib. i. cap. iii. — Edit. A.D. 1797.
     37.    Watteville’s Hist. of the Helvetic Confederacy, vol. i. p. 126.
     38.    In the year 1743.
     39.    Timur-bec made war on Joseph Sofy, king of Carezem, and subdued his kingdom. During the course of the war, that great man proved himself to be possessed of all that moderation and politeness which is thought peculiar to our modern warriors. Some melons being brought to him whilst he was besieging Joseph in the city of Eskiskus, he resolved to send a part of them to his enemy, thinking it would be a breach of civility not to share those new fruits with that prince when so near him: and accordingly he ordered them to be put into a gold basin, and carried to him. The king of Carezem received this instance of politeness in a brutal manner; He ordered the melons to be thrown into the fossé, and gave the basin to the city gate-keeper. — La Croix. His. of Timur-bec, book v. ch. xxvii. — Edit. A.D. 1797.
     40.    On this subject, let us notice a trait of Charles XII. of Sweden, in which sound reason and the most exalted courage are equally conspicuous. That prince, being engaged in the siege of Thorn in Poland, and frequently walking round the city, was easily distinguished by the cannoneers, who regularly fired upon him as soon as they saw him make his appearance. The principal officers of his army, greatly alarmed at their sovereign’s danger, wished to have information sent to the governor, that, if the practice was continued, no quarter should be granted either to him or to the garrison. But the Swedish monarch would never permit such a step 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. — Histoire du Nord, p. 26. Edit. A.D. 1797.