CHAPTER VII.

ON THE RIGHT OVER PRISONERS OF WAR.

By the law of nations, slavery the result of being taken in solemn

war--The same condition extends to the descendants of those

taken--The power over them--Even incorporeal things may be gained

by the rights of war--Reason of this--This right not prevalent to

the same extent among Christian powers of the present day--The

substitute used in place of this right.

I. By the law of nature, in its primaeval state; apart from human

institutions and customs, no men can be slaves: and it is in this sense

that legal writers maintain the opinion that slavery is repugnant to

nature. Yet in a former part of this treatise, it was shewn that there

is nothing repugnant to natural justice, in deriving the origin of

servitude from human actions, whether founded upon compact or crime.

But the law of nations now under consideration is of wider extent both

in its authority over persons, and its effects. For, as to persons,

not only those, who surrender their rights, or engage themselves

to servitude, are considered in the light of slaves, but all, who

are taken prisoners in public and solemn war, come under the same

description from the time that they are carried into the places, of

which the enemy is master.

Nor is the commission of crime requisite to reduce them to this

condition, but the fate of all is alike, who are unfortunately taken

within the territories of an enemy, upon the breaking out of war.

II. and III. In ancient times, while slavery was permitted to exist,

the offspring, born during captivity or servitude, continued in the

same condition as the parents.--The consequences of such rules were of

wide extent;--there was no cruelty, which masters might not inflict

upon their slaves;--there was no service, the performance of which they

might not compel;--the power even of life and death was in their hands.

However the Roman laws at length set bounds to such wanton power, at

least to the exercise of it within the Roman territories.

Every thing too, found upon the prisoner's person, became a lawful

prize to the captor. For as Justinian observes, one who was entirely in

the power of another could have no property of his own.

IV. and V. Incorporeal rights, gained by the enemy, along with the

person so captured, cannot be considered in the light of primary and

original acquisitions. And there are some rights so purely personal

in their nature, that they cannot be lost even by captivity, nor the

duties attached thereto ever be relinquished. Of such a nature was the

paternal right among the Romans. For rights of this kind cannot exist

but immediately with the person to whom they originally belonged.

All these rights to prizes, which were introduced by the law of

nations, were intended as an inducement to captors to refrain from

the cruel rigour of putting prisoners to death; as they might hope

to derive some advantage from sparing and saving them. From hence

Pomponius deduces the origin of the word, SERVUS, or SLAVE, being one,

who might have been put to death, but from motives of interest or

humanity had been saved.

VI. (being the IX. of the original.) It has long been a maxim,

universally received among the powers of Christendom, that prisoners

of war cannot be made slaves, so as to be sold, or compelled to the

hardships and labour attached to slavery. And they have with good

reason embraced the latter principle. As it would be inconsistent with

every precept of the law of charity, for men to refuse abandoning a

cruel right, unless they might be allowed to substitute another, of

great, though somewhat inferior rigour, in its place.

And this, as Gregoras informs us, became a traditionary principle

among all who professed one common religion; nor was it confined

to those, who lived under the authority of the Roman empire, but

prevailed among the Thessalians, the Illyrians, the Triballians, and

Bulgarians.--Though such an abolition of slavery, and mitigation of

captivity may be considered as of trivial import, yet they were effects

produced by the introduction of the Christian religion, especially upon

recollection that Socrates tried, but without effect, to prevail upon

the Greeks to forbear making slaves of each other.

In this respect the Mahometans act towards each other in the same

manner as Christians do. Though it is still the practice among

Christian powers to detain prisoners of war, till their ransom be paid,

the amount of which depends upon the will of the Conqueror, unless

it has been settled by express treaty. The right of detaining such

prisoners has sometimes been allowed to the individuals, who took them,

except where the prisoners were personages of extraordinary rank, who

were always considered as prisoners of war to the state.

The Rights of War and Peace · 第 7 / 21 章