ON THE RIGHT TO LAY WASTE AN ENEMY'S COUNTRY, AND CARRY OFF HIS EFFECTS.
An enemy's property may be wasted and plundered--Things deemed sacred,
how far exempted--Stratagem, how far permitted.
I. Cicero, in the third book of his offices, has said that there is
nothing repugnant to the LAW OF NATURE in spoiling the effects of an
enemy, whom by the same law we are authorized to kill. Wherefore it is
not surprising that the same things should be allowed by the LAW OF
NATIONS. Polybius, for this reason, in the fifth book of his history,
maintains, that the laws of war authorise the destruction of an enemy's
forts, harbours, and fleets, the seizure of his men, or carrying off
the produce of his country, and every thing of that description. And we
find from Livy that there are certain rights of war, by which an enemy
must expect to suffer the calamities, which he is allowed to inflict,
such as the burning of corn, the destruction of houses, and the plunder
of men and cattle. Almost every page of history abounds in examples
of entire cities being destroyed, walls levelled to the ground, and
even whole countries wasted by fire and sword. Even in cases of
surrender, towns have sometimes been destroyed, while the inhabitants
were spared--an example of which is given by Tacitus, in the taking of
Artaxata by the Romans; the inhabitants opened their gates and were
spared, but the town was devoted to the flames.
II. Nor does the law of nations, in itself, considered apart from other
duties, which will be mentioned hereafter, make any exemption in favour
of things deemed sacred. For when places are taken by an enemy, all
things without exception, whether sacred or not, must fall a sacrifice.
For which it is assigned as a reason, that things which are called
sacred, are not actually excepted from all human uses, but are a kind
of public property, called sacred indeed from the general purposes, to
which they are more immediately devoted. And as a proof of this, it is
usual, when one nation surrenders to another state or sovereign, to
surrender, along with other rights, every thing of a sacred kind, as
appears by the form cited from Livy in a former part of this treatise.
And therefore Ulpian says, that the public have a property in sacred
things. Conformably to which Tacitus says, that "in the Italian towns
all the temples, the images of the Gods, and every thing connected
with religion belonged of right to the Roman people." For this reason
a nation, as the Lawyers, Paulus and Venuleius openly maintain, may,
under a change of circumstances, convert to secular uses things, that
have before been consecrated: and an overruling necessity may justify
the hand, which has formerly consecrated the object in employing it as
one of the resources and instruments of war. A thing which Pericles
once did under a pledge of making restitution: Mago did the same in
Spain, and the Romans in the Mithridatic war. We read of the same
actions done by Sylla, Pompey, Caesar, and others. Plutarch in his life
of Tiberius Gracchus says that nothing is so sacred and inviolable,
as divine offerings: yet no one can hinder these from being removed
or applied to other purposes at the pleasure of the state. Thus Livy
mentions the ornaments of the temples, which Marcellus brought from
Syracuse to Rome, as acquisitions made by the right of war.
III. What has been said of sacred things and edifices applies also to
another kind of solemn fabrics, and those are sepulchral structures,
which may be considered not merely as repositories of the dead, but as
monuments belonging to the living, whether families or states. For this
reason Pomponius has said, that these, like all other sacred places,
when taken by an enemy may lose their inviolability, and Paulus is of
the same opinion, observing that we are not restrained by any religious
scruple from using the sepulchres of an enemy: for the stones, taken
from thence, may be applied to any other purpose. But this right does
not authorise wanton insult, offered to the ashes of the dead. For that
would be a violation of the solemn rights of burial, which, as it was
shewn in a preceding part of this work, were introduced and established
by the law of nations.
IV. Here it may be briefly observed, that, according to the law of
nations any thing, belonging to an enemy, may be taken not only by open
force, but by stratagem, provided it be unaccompanied with treachery.