ON THE RIGHT OF KILLING AN ENEMY IN LAWFUL WAR, AND COMMITTING OTHER
ACTS OF HOSTILITY.
General explanation of the effects of formal war--Distinction between
lawful and innocent impunity--Merit of the latter--Examples
added to explain it--General effects of former war considered
with respect to lawful impunity--The reason of their
introduction--Historical testimonies--By this right all persons,
found within an enemy's territory, objects of hostility--Also all
going thither before the war--The subjects of an enemy liable to
be seized everywhere, except protected by the laws of a neutral
territory--Case of women and children--Case of prisoners--Of those
whose voluntary offer of surrender is rejected--Unconditional
surrender--Retaliation--Obstinate defence--Hostages.
I. Servius in his comment on the passage of Virgil, where that poet
says that war "will authorise mutual acts of destruction and rapine,"
in tracing the fecial or herald's law to Ancus Martius, and even beyond
him to a still more remote period, remarks that, "if ever the persons
or property of subjects, belonging to the Roman state, were seized
and carried off by any other nation, the principal Herald, or King at
arms went out with the sacred ministers, who presided at the making of
solemn treaties, and proceeding to the verge of the territories of the
offending nation, declared with a loud voice the cause of the war, and
the refusal of that nation either to restore what had been seized, or
to deliver up the aggressors to justice. After this he threw a spear to
indicate that war and all its consequences were from that moment begun."
The commentator had previously observed that the ancients gave the name
of rapine to every act of hostility even where there was no act of
plunder committed; and they likewise called every kind of restitution a
satisfaction.
By this explanation we learn that whenever war is proclaimed between
two states or sovereigns, it is accompanied with certain rights or
consequences, which do not NECESSARILY belong to war itself. And this
is perfectly conformable to the examples from the Roman Lawyers, which
have been before produced.
II. But it will be proper to consider how far the lawfulness, which
Virgil speaks of, extends. For the term lawful sometimes implies
whatever is just and pious in all respects, although the pursuit of
a different course may perhaps be more laudable: according to the
expression of St. Paul, who says, "all things are lawful to me, but
all things are not expedient." Ulpian is speaking of a seller, who, at
the expiration of a certain period, is not answerable for the safety
of goods, which a buyer has neglected to take away, says he, will yet
think himself bound in EQUITY to preserve them with all imaginable
care. On some occasions when it is said, that men may LAWFULLY do a
thing, the expression only means that doing such act will not subject
them to human and legal penalties, but it by no means indicates
that the action is strictly conformable to the rule of religion and
morality. Thus among the Lacedaemonians and Egyptians stealing was
allowed: an indulgence that by no means took away the GUILT of theft.
Cicero in the fifth of his Tusculan questions, speaking of Cinna,
beautifully and justly points out this abuse of the word, LAWFUL. "He
seems to me, _says he_, a wretched man indeed for having done those
acts, and for having been in a situation, where they might be thought
lawful. It can never be lawful for any man to do wrong: but we fall
into a great mistake in the use of that word: for we consider a thing
to be lawful, which any one may do with impunity." This is the meaning,
in which the term is generally understood, as the same orator, in
addressing the judges in behalf of Rabirius Posthumus, observes, "it
behoves you to consider, what is becoming your character, and not what
the rigour of the law allows you to inflict. For if you consult the
full extent of your authority, you may make away with any citizen you
please."
In the same manner legislators, as it was proved in a former book of
this treatise, are not accountable, in their legislative capacity, to
any human tribunal, for the laws, which they make, yet they cannot, in
a moral point of view, avail themselves of this transcendent power to
enact a thing that is evidently unjust. In this sense we often meet
with a distinction made between what is proper or right, and what is
lawful. Thus Cicero, in his speech for Milo, makes the LAW OF NATURE
the standard of what is RIGHT, and LEGAL AUTHORITY, the standard of
what is lawful.
III. Thus qualified, the annoyance of an enemy, either in his person or
property, is lawful. This right extends not only to the power engaged
in a just war, and who in her hostilities confines herself within
the practice established by the law of nature, but each side without
distinction has a right to employ the same means of annoyance. So that
any one taken in arms, even in another's territory, cannot be treated
as a robber, malefactor, or murderer, nor can even that neutral power,
in whose territory he is taken, treat him as an enemy, for being found
in arms.
IV. This principle was established by nations to prevent others from
interfering in their disputes, or giving the law to them respecting the
rights of war. Besides, if this were not the case, neutral powers would
frequently be involved in the wars of others. A reason which the people
of Marseilles urged in the dispute between Caesar and Pompey. They
alleged that they had neither sufficient judgment to determine on which
side justice lay, nor, if they could determine, had they strength to
give effect to their decisions.
A spectator indeed is but ill qualified to judge, how far, even in
the most just war, self-defence, the attainment of indemnity, or the
punishment of an aggressor, may be carried. These are points, which,
on many, if not most, occasions must be left to the conscience and
discretion of the belligerents themselves: a mode far preferable to
that of appealing to the mediation, and decision of disinterested
and neutral powers. Livy has given an address of the Achaeans to the
senate, in which they ask, "how their availing themselves of the rights
of war can ever be fairly called in question, or made a subject of
discussion?"
Besides the impunity attending certain actions done in war, the
acquisition of territory by the right of conquest is another topic of
consideration, which will hereafter be examined.
V. The lawfulness of injuring or destroying the person of a public
enemy is supported by the testimony of many of the best writers, both
poets, moralists, and historians. In one of the tragedies of Euripides,
there is a proverb, which says, that "to kill a public enemy, or an
enemy in war is no murder." Therefore the custom of the ancient
Greeks, which rendered it unlawful and impious to use the same bath,
or to partake of the same festivities and sacred rites with a person
who had killed another in time of peace, did not extend to any one who
had killed a public enemy in war. Killing an enemy is indeed everywhere
called a right of war. "The rights of war, _says Marcellus in Livy_,
support me in all that I have done against the enemy." And the same
historian gives the address of Alcon to the Saguntines, where he says,
"You ought to bear these hardships, rather than suffer your own bodies
to be mangled, and your wives and children to be seized and dragged
away before your eyes." Cicero in his speech in defence of Marcellus
passes a high encomium upon the clemency of Caesar, who, "by the laws
of war and the rights of victory, might have put to death all, whom
he had spared and protected." And Caesar observes to the Eduans, that
"it was an act of kindness in HIM, to spare those whom the laws of war
would have authorised him to put to death."
But the rights of war, for which these writers plead, could not
PERFECTLY JUSTIFY the putting prisoners to death, but could only grant
IMPUNITY to those who availed themselves of the barbarous custom. There
is a wide difference however between actions like these, and destroying
an enemy by proper means of hostility. For, as Tacitus says, "in the
leisure hours of peace the merits and demerits of every case may be
examined and weighed, but, in the tumult and confusion of war, the
innocent must fall with the guilty": and the same writer, in another
place, observes, that "there are many actions, which the principles
of humanity cannot ENTIRELY approve, but which the policy of war
requires." And it is in this, and no other sense that Lucan has said,
"the complexion of right may be assigned to what is wrong."
VI. This right of making lawful what is done in war is of great extent.
For in the first place it comprises, in the number of enemies, not only
those who actually bear arms, or who are immediately subjects of the
belligerent power, but even all who are within the hostile territories,
as appears from the form given by Livy, who says, that "war is declared
against the sovereign, and all within his jurisdiction." For which a
very good reason may be assigned; because danger is to be apprehended
even from THEM, which, in a continued and regular war, establishes the
right now under discussion.
Reprisals do not come exactly under the same rule. For like taxes,
they were introduced for the discharge of public debts, for no part
of which temporary residents, or foreigners are answerable. Therefore
Baldus is right in his observation, that, after war is actually begun,
much greater latitude is allowed, than in the bare right of making
reprisals. So that what is said of foreigners, who enter into an
enemy's country, and reside there, after war is avowedly declared and
begun, is undoubtedly true.
VII. But persons, who had gone to reside there before the war was
begun, seem by the law of nations to be included in the number of
enemies, unless within a reasonable time they chuse to withdraw. So
that the Corcyraeans, when going to besiege Epidamnus, gave leave to
all strangers to withdraw, denouncing that they would otherwise be
treated as enemies.
VIII. But the persons of natural-born subjects, who owe permanent
allegiance to a hostile power may, according to the law of nations, be
attacked, or seized, wherever they are found. For whenever, as it was
said before, war is declared against any power, it is at the same time
declared against all the subjects of that power. And the law of nations
authorises us to attack an enemy in every place: An opinion supported
by most legal authorities: thus Marcian says "that deserters may be
killed in the same manner as enemies, wherever they are found." They
may be lawfully killed there, or in their own country, in the enemy's
country, in a country belonging to no one, or on the sea. But as to
the unlawfulness of killing, or violently molesting them in a neutral
territory, this protection does not result from any personal privileges
of THEIR OWN, but from the rights of the SOVEREIGN of that country.
For all civil societies had an undoubted right to establish it as a
standing maxim that no violence should be offered to any person within
their territories, nor any punishment inflicted but by due process of
law. For where tribunals retain their authority in full vigour, to try
the merits of every offence, and, after impartial inquiry, to acquit
the innocent, or condemn the guilty, the power of the sword must be
restrained from inflicting promiscuous death.
Livy mentions the circumstance of seven Carthaginian gallies riding
at anchor in a port belonging to Syphax, who was then at peace with
the Carthaginians and Romans. Scipio arrived at that time, with two
gallies, which might have been attacked and sunk by the Carthaginians,
before they could enter the port: a brisk wind rising carried them in,
before the Carthaginians could weigh anchor; but out of respect to the
king's authority they durst not attack the Romans in his harbour.
IX. But to return to the subject, which is, to decide how far the
power of lawfully destroying an enemy, and all that belong to him,
extends. An extent of which we may form some conception from the very
circumstance, that even women and children are frequently subject to
the calamities and disasters of war. There is no occasion to allege
in this place, as an example, the conduct of the Hebrews, who slew
the women and children of the Heshbonites, and who were commanded to
execute vengeance upon the Canaanites, and upon all, who were involved
in the same guilt. Those examples, where God MANIFESTLY interposes his
commands, are not to be drawn into a precedent for authorising actions
of the SAME kind on DIFFERENT occasions. For the supreme and disposing
power of God can never properly be compared with that, which men are
allowed to exercise over each other. The Psalmist's expression of the
Babylonian children being dashed against the stones is a much stronger
proof of the custom commonly prevailing among nations, in the use of
victory, to which the language of Homer bears a close resemblance,
where the poet says, that "in the cruel rage of war, even the bodies of
infant-children were dashed against the ground." Thucydides relates,
that when Mycalessus was captured by the Thracians, they put all,
even women and children to the sword. Arrian relates the same of
the Macedonians, when they took the city of Thebes. And Germanicus
Caesar, according to the account of Tacitus, laid waste whole cantons
of the Marsians, a people of Germany, with fire and sword, to which
the historian adds, "without sparing either age or sex." The Jewish
women and children too were exposed by Titus, to be torn to pieces by
wild beasts at a public spectacle. Yet neither of those generals were
thought deficient in humanity, so much had custom reconciled the minds
of men to this barbarous usage. So that the massacre of the aged, like
that of Priam by Pyrrhus, is no way surprising.
X. The right of putting prisoners of war to death, was so generally
received a maxim, that the Roman Satirist has founded an adage upon
it, and said, "that when you can sell a prisoner for a slave, it would
be absurd to kill him." Words which imply the full power of doing so,
if the captor thought proper. The commentators indeed assign the act
of saving, as the derivation of the Latin word, _servus_, a slave.
Thus Thucydides speaks of the prisoners taken at Epidamnus, and killed
by the Corcyraeans, and Hannibal is reported to have massacred five
thousand prisoners at once. Nor was this power limited by the law of
nations to any particular time, though it was controuled by greater
restrictions in some places, than in others.
XI. Besides many examples occur of suppliants, being killed. Both
ancient poets and historians relate such actions, as ordinary
practices, authorised by the laws of war. Augustin commends the Goths
for sparing suppliants, who had fled to churches for refuge, and adds
by way of comment, that "they deemed it unlawful to avail themselves of
the power, which had usually been allowed by the laws of war."
Nor did those who offered to surrender always experience the lenity
and mercy, which they sought thereby. Tacitus relates, that when the
city of Uspes was invested, the besieged sent a deputation with offers
of an immediate surrender, and of no less than ten thousand slaves,
on condition that the free-born should remain unhurt. The terms were
rejected--A proof that such a rejection was thought conformable to the
rights of war.
XII. But even after an unconditional surrender, we find that those, who
had capitulated were sometimes put to the sword. In this manner the
princes of Pometia were treated by the Romans, the Samnites by Sylla,
the Numidians and Vercingetorix by Caesar. It was almost a standing
practice with the Romans to crown their triumphs with the death of
an enemy's generals, whether made prisoners actually in the field,
or by capitulation. Cicero notices this custom in his fifth speech
against Verres. Livy may be consulted on this point in many parts of
his history, particularly in the twenty-eighth book: and Tacitus also
in the 12th book of his Annals. The latter writer, in the first book
of his HISTORY, relates that Galba ordered every tenth man of those,
whom he had, upon their earnest supplication, admitted to surrender,
to be beheaded: and Caecina, after the capitulation of Aventicum,
punished Julius Alpinus, one of the leading men, with death, as a
chief promoter of the war, leaving the rest to the mercy or cruelty of
Vitellius.
XIII. Historians sometimes account for this right of putting enemies
to death, especially prisoners, or suppliants, either on the score
of retaliation, or for obstinate resistance. These may sometimes be
the real, but cannot be the JUSTIFIABLE motives of such proceedings.
For the law of retaliation, strictly and properly so called, must be
directly enforced upon the person of the delinquent himself. Whereas,
in war, what is called retaliation frequently redounds to the ruin of
those, who are no way implicated in the blame. The general consequences
of war are thus described by Diodorus Siculus, "they could not be
ignorant, _says he_, having learnt from experience, that all being
involved in the common fortune of war, they are liable on both sides in
defeat, to suffer the same calamities, which they themselves would have
inflicted upon the conquered party."
But as the Neapolitans reply to Belisarius, in Procopius, no one can be
thought deserving of punishment for a resolute adherence to the side
on which he is engaged, especially when actuated by natural and just
motives in his choice of that side. So far from incurring guilt by such
a resolution, it is on the other hand more criminal for any one to
desert his post: and so it was judged by the military laws of ancient
Rome. Livy says, it was a capital offence, for which no fear of danger
could be pleaded as an excuse. So that in the rigid application of
this right, OWING TO ITS IMPORTANCE, every one is left to use his own
discretion, and there may be times and circumstances, in which the law
of nations will justify its full exertion.
XIV. The same right was exercised upon hostages also, not only upon
those who had bound themselves, as it were, by convention, but even
upon those, who had been delivered up by others. Two hundred and fifty
hostages were once massacred by the Thessalians, and the Volsci Aurunci
to the amount of three hundred by the Romans. It is to be observed
that children were sometimes given, as hostages, which we find was
done by the Parthians, and by Simon, who was one of the Maccabees. And
in the times of Porsena it was usual to deliver women, as hostages: a
practice, which, as Tacitus informs us, was followed by the Germans.
XV. As the law of nations permits many things, in the manner above
explained, which are not permitted by the law of nature, so it
prohibits some things which the law of nature allows. Thus spies, if
discovered and taken, are usually treated with the utmost severity. Yet
there is no doubt, but the law of nations allows any one to send spies,
as Moses did to the land of promise, of whom Joshua was one.
Persons of that description may sometimes be LAWFULLY employed by
those, who are engaged in an EVIDENTLY just war. Others too, who have
not such evident proofs of the justice of their cause, may plead the
rights of war as a vindication for employing such persons.
But if any are to be found, who disdain to avail themselves of such
a privilege, or opportunity, no argument either FOR, or AGAINST the
LAWFULNESS of employing spies can be drawn from their conduct, which
proceeds rather from a nobleness of mind, and a confidence in open
strength, than from any decided opinion upon the subject.