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.