The Principles of Natural and Politic Law (1748)
Jean Jacques Burlamaqui
Of the rights, which war gives over the persons of the enemy, and of their extent and bounds.
I. WE shall now enter into the particulars of the different rights, which war gives over the enemy’s person and goods; and to begin with the former.
1. It is certain, that we may lawfully kill an enemy; I say lawfully, not only according to the terms of external justice, which passes for such among all nations, but also according to internal justice, and the laws of conscience. Indeed the end of war necessarily requires, that we should have this power, otherwise it would be in vain to take up arms, and the law of nature would permit it to no purpose.
II. If we consulted only the custom of countries, and what Grotius calls the law of nations, this liberty of killing an enemy would extend very far; we might say that it had no bounds, and might even be exercised on innocent persons. However, though it be certain, that war is attended with numberless evils, which in themselves are acts of injustice, and real cruelty, but, under particular circumstances, ought rather to be considered as unavoidable misfortunes; it is nevertheless true, that the right, which war gives over the person and life of an enemy, has its bounds; and that there are measures to be observed, which cannot be innocently neglected.
III. In general we ought to be directed by the principles, established in the preceding chapter, in judging of the degress, to which the liberties of war may be carried. The power we have of taking away the life of an enemy, is not therefore unlimited; for, if we can attain the legitimate end of war, that is, if we can defend our lives and properties, assert our rights, and recover satisfaction for damages sustained, and good sureties for the future, without taking away the life of the enemy, it is certain that justice and humanity directs us to forbear it, and not to shed human blood unnecessarily.
IV. It is true, in the application of these rules to particular cases, it is sometimes very difficult, not to say impossible, to fix precisely their proper extent and bounds; but it is certain at least, that we ought to come as near to them as possible, without prejudicing our real interests. Let us apply these principles to particular cases.
V. 1. It is often disputed, whether the right of killing an enemy regards only those, who are actually in arms; or whether it extends indifferently to all those in the enemy’s country, subjects or foreigners? My answer is, that with respect to those, who are subjects, the point is incontestable. These are the principal enemies, and we may exercise all acts of hostility against them, by virtue of the state of war.
VI. As to strangers, those, who settle in the enemy’s country after a war is begun, of which they had previous notice, may justly be looked upon as enemies, and treated as such. But in regard to such as went thither before the war, justice and humanity require that we should give them a reasonable time to retire; and if they neglect that opportunity, they are accounted enemies.
VII. 2. With regard to old men, women, and children, it is certain, that the right of war does not of itself require, that we should push hostilities so far, as to kill them; it is therefore a barbarous cruelty to do so. I say, that the end of war does not require this of itself; but if women for instance exercise acts of hostility, if, forgetting the weakness of their sex, they usurp the offices of men, and take up arms against us, then we are certainly excused in availing ourselves of the rights of war against them. It may also be said, that when the heat of action hurries the soldiers, as it were in spite of themselves, and against the order of their superiors, to commit acts of inhumanity, as, for example, at the siege of a town, vhich, by an obstinate resistance, has irritated the troops; we ought to look upon those evils rather as misfortunes, and the unavoidable consequences of war, than as crimes, that deserve to be punished.
VIII. 3. We must reason almost in the same manner, with, respect to prisoners of war. We cannot, generally speaking, put them to death, without being guilty of cruelty. I say generally speaking, for there may be cases of necessity so pressing, that the care of our own preservation obliges us to proceed to extremities, which in any other circumstances would be absolutely criminal.
IX. In general even the laws of war require, that we should abstain from slaughter as much as possible, and not shed human blood without necessity. We ought not therefore directly and deliberately to kill prisoners of war, nor those, who ask quarter, or surrender themselves, much less old men, women, and children; in general we should spare all those, whose age and profession render them unfit to carry arms, and who have no other share in the war, than being in the enemy’s country. It is easy also to conceive, that the rights of war do not extend so far, as to authorise the outrages, committed upon the honor and chastity of women; for this contributes nothing either to our defence or safety, or to the support of our rights; but only serves to satisfy the brutality of the soldiers.1
X. Again a question is here started, whether in cases, where it is lawful to kill the enemy, we may not, for that purpose, use all kinds of means indifferently? I answer, that to consider the thing in itself, and in an abstract manner, it is no matter which way we kill an enemy, whether by open force, or by fraud and stratagem; by the sword or by poison.
XI. It is however certain, that according to the idea and custom of civilized nations, it is looked upon as a base act of cowardice, not only to cause any poisonous draught to be given to the enemy, but also to poison wells, fountains, springs, rivers, arrows, darts, bullets, or other weapons used against him. Now it is sufficient, that this custom of looking on the use of poison as criminal is received among the nations at variance with us, to suppose we comply with it, when, in the beginning of the war, we do not declare, that we are at liberty to act otherwise, and leave it to our enemy’s option to do the same.
XII. We may so much the more suppose this tacit agreement, as humanity and the interest of both parties equally require it; especially since wars are become so frequent, and are often undertaken on such slight occasions; and since the human mind, ingenious in inventing the means to hurt, has so greatly multiplied those, which are authorized by custom, and looked upon as honest. Besides it is beyond all doubt, that, when we can obtain the same end by milder and more humane measures, which preserve the lives of many, and particularly of those, in whose preservation human society is interested, humanity directs, that we should take this course.
XIII. These are therefore just precautions, which men ought to follow for their own advantage. It is for the common benefit of mankind, that dangers should not be augmented without end. In particular the public is interested in the preservation of the lives of kings, generals of armies, and other persons of the first rank, on whose safety that of societies generally depends. For if the lives of these persons are in greater safety, than those of others, when attacked only by arms; they are, on the other hand, more in danger of poison, etc. and they would be every day exposed to perish in this manner, if they were not protected by a regard to some sort of law, or established custom.
XIV. Let us add in fine, that all nations, that ever pretended to justice and generosity, have followed these maxims. The Roman consuls, in a letter they wrote to Pyrrhus, informing him, that one of his people had offered to poison him, said, that it was the interest of all nations not to set such examples.
XV. It is likewise disputed, whether we may lawfully send a person to assassinate an enemy? I answer, 1. that he, who for this purpose employs only some of his own people may do it justly. When it is lawful to kill an enemy, it is no matter whether those employed are many or few in number. Six hundred Lacedæmonians., with Leonidas, entered the enemy’s camp, and went directly to the Persian king (Xerxes’s) pavilion; and a smaller number might certainly have done the same. The famous attempt of Mucius Scevola is commended by all antiquity; and Porsenna himself, whose life was aimed at, acknowledged this to be an act of great valor.
XVI. But it is not so easy to determine whether we may for this purpose employ assassins, who, by undertaking this task, must be guilty of falsehood and treason; such as subjects with regard to their sovereign, and soldiers to their general. In this respect there are, in my opinion, two points to be distinguished. First whether we do any wrong, even to the enemy himself, against whom we employ traitors; and secondly whether, supposing we do him no wrong, we commit nevertheless a bad action.
XVII. 3. With regard to the first question, to consider the thing itself, and according to the rigorous law of war, it seems, that, admitting the war to be just, no wrong is done to the enemy, whether we take advantage of the opportunity of a traitor, who freely offers himself, or whether we seek for it, and bring it about ourselves.
XVIII. The state of war, into which the enemy has put himself, and which it was in his own power to prevent, permits of itself every method, that can be used against him; so that he has no reason to complain, whatever we do. Besides, we are no more obliged, strictly speaking, to respect the right he has over his subjects, and the fidelity they owe him as such, than their lives and fortunes, of which we may certainly deprive them by the right of war.
XIX. 4. And yet I believe, that this is not sufficient to render an assassination, under such circumstances, entirely innocent. A sovereign, who has the least tenderness of conscience, and is convinced of the justice of his cause, will not endeavour to find out perfidious methods to subdue his enemy, nor be so ready to embrace those, which may present themselves to him. The just confidence he has in the protection of heaven, the horror he conceives at the traitor’s perfidy, the dread of becoming his accomplice, and of setting an example, which may fall again on himself and others, will make him despise and reject all the advantage, he might propose to himself from such means.
XX. 5. Let us also add, that such means cannot always be looked upon as entirely innocent, even with respect to the person, who employs the assassin. The state of hostility, which supersedes the intercourse of good offices, and authorizes to hurt, does not therefore dissolve all ties of humanity, nor remove our obligation to avoid, as much as possible, the giving room for some bad actions of the enemy, or his people; especially those, who of themselves have had no part in the occasion of the war. Now every traitor certainly commits an action equally shameful and criminal.
XXI. 6. We must therefore conclude with Grotius, that we can never in conscience seduce or solicit the subjects of an enemy to commit treason, because that is positively and directly inducing them to perpetrate a heinous crime, which otherwise would, in all probability, have been very remote from their thoughts.
XXII. 7. It is quite another thing, when we only take advantage of the occasion and the dispositions, we find in a person, who has no need to be solicited to commit treason. Here I think the infamy of the perfidy does not fall on him, who finds it entirely formed in the heart of the traitor; especially if we consider, that, in this case between enemies, the thing, with respect to which we take advantage of the bad disposition of another, is of such a nature, that we may innocently and lawfully do it ourselves.
XXIII. 8. Be that as it may, for the reasons above alledged, we ought not to take advantage of a treason, which offered itself, except in an extraordinary case, and from a kind of necessity. And though the custom of several nations has nothing obligatory in itself, yet as the people, with whom we are at variance, look upon the very acceptance of a certain kind of perfidy to be unlawful, as that of assassinating one’s prince or general, we are reasonably supposed to comply with it by a tacit consent.
XXIV. 9. Let us observe however, that the law of nations allows some difference between a fair and legitimate enemy, and rebels, pirates, or highwaymen. The most religious princes make no difficulty to propose even rewards to those, who will betray such persons; and the public odium of all, which men of this stamp lie under, is the cause, that nobody thinks the measure hard, or blames the conduct of the prince in using every method to destroy them.
XXV. Lastly it is permitted to kill an enemy wherever we find him, except in a neutral country; for violent means are not suffered in a civilized society, where we ought to implore the assistance of the magistrate. In the time of the second Punic war,2 seven Carthaginian galleys rode in a harbor, belonging to Syphax, who was then in peace both with the Romans and Carthaginians, and Scipio came that way with two galleys only. The Carthaginians immediately prepared to attack the Roman galleys, which they might easily have taken before they had entered the port; but, being forced by a strong wind into the harbor, before the Carthaginians had time to weigh anchor, they durst not attack them, because it was in a neutral prince’s haven.
XXVI. Here it may be proper to say something concerning prisoners of war. In former times it was a custom, almost universally established, that those, who were made prisoners in a just and solemn war, whether they had surrendered themselves, or been taken by main force, became slaves the moment they were conducted into some place, dependant on the conqueror. And this right was exercised on all persons whatsoever, even on those, who happened unfortunately to be in the enemy’s country, at the time the war suddenly broke out.
XXVII. Further, not only the prisoners themselves, but their posterity were reduced to the same condition; that is to say, those born of a woman after she had been made a slave.
XXVIII. The effects of such a slavery had no bounds; every thing was permitted to a master with respect to his slave, he had the power of life and death over him, and all, that the slave possessed, or could afterwards acquire, belonged of right to the master.
XXIX. There is some probability, that the reason and end, for which nations had established this custom of making slaves in war, was principally to induce the captors to abstain from from slaughter, from a view of the advantages they reaped from their slaves. Thus historians observe, that civil wars were more cruel than others, the general practice in that case being to put the prisoners to the sword, because they could not make slaves of them.
XXX. But Christian nations have generally agreed among themselves to abolish the custom of making their prisoners yield perpetual service to the conqueror. At present it is thought sufficient to keep those, that are taken in war, till their ransom is paid, the estimation of which depends on the will of the conqueror, unless there be a cartel, or agreement, by which it is fixed.
1. Grotius, lib. iii. cap. iv. sect. 19.
2. Livy, lib. xxviii. cap. xvii. numb. 12, & seq.