A formal declaration of war, though not necessary by the law of nature, has been rendered such by the usage of civilised nations. But it is required, even by the former, that we should demand reparation for an injury, before we seek redress by force. A declaration of war may be conditional or absolute; and it has been established as a ratification of regular hostilities, that they may not be confounded with the unwarranted acts of private men. No interval of time is required for their commencement after declaration." 131. All is lawful during war, in one sense of the word, which by the law and usage of nations is dispunishable. And this, in formal hostilities, is as much the right of one side as of the other. The subjects of our enemy, whether active on his side or not, become liable to these extreme rights of slaughter and pillage; but it seems that, according to the law of nations, strangers should be exempted from them, unless by remaining in the country they serve his cause. Women, Rights by law of nations over enemies. children, and prisoners may be put to death; quarter or capitulation for life refused. On the other hand, if the law of nations is less strict in this respect than that of nature, it forbids some things which naturally might be allowable means of defence, as the poisoning an enemy, or the wells from which he is to drink. The assassination of an enemy is not contrary to the law of nations, unless by means of traitors, and even this is held allowable against a rebel or robber, who are not protected by the rules of formal war. But the violation of women is contrary to the law of nations. The rights of war with respect to enemies' property are unlimited, without exception even of churches or sepulchral monuments, sparing always the bodies of the dead. 132. By the law of nature, Grotius thinks that we acquire a property in as much of the spoil as is sufficient to indemnify us, and to punish the aggressor. But the law of nations carries this much farther, and gives an unlimited property in all that has been acquired by conquest, which mankind are bound to respect. This right commences as soon as the enemy has lost all chance of recovering his losses; which is, in movables, as soon as they are in a b C. 3. i C. 4. * C. 5. place within our sole power. The transfer of property in territories is not so speedy. The goods of neutrals are not thus transferred, when found in the cities or on board the vessels of an enemy. Whether the spoil belongs to the captors, or to their sovereign, is so disputed a question, that it can hardly be reckoned a part of that law of nations, or universal usage, with which Grotius is here concerned. He thinks, however, that what is taken in public enterprises appertains to the state; and that this has been the general practice of mankind. The civil laws of each people may modify this, and have frequently done so." become 133. Prisoners, by the law of nations, become slaves of the captor, and their posterity also. He may Prisoners treat them as he pleases with impunity. This slaves. has been established by the custom of mankind, in order that the conqueror might be induced to spare the lives of the vanquished. Some theologians deny the slave, even when taken in an unjust war, the right of making his escape, from whom Grotius dissents. But he has not a right, in conscience, to resist the exercise of his master's authority. This law of nations as to the slavery of prisoners, as he admits, has not been universally received, and is now abolished in Christian countries out of respect to religion." But, strictly, as an individual may be reduced into slavery, so may a whole conquered people. It is of course at the discretion of the conqueror to remit a portion of his right, and to leave as much of their liberties and possessions untouched as he pleases." postlimi 134. The next chapter relates to the right of postliminium, one depending so much on the peculiar Right of fictions of the Roman jurists, that it seems strange nium. to discuss it as part of an universal law of nations at all. Nor does it properly belong to the rights of war, which are between belligerent parties. It is certainly consonant to natural justice that a citizen returning from captivity should be fully restored to every privilege and all property that he had enjoyed at home. In modern Europe there is little to which the jus postliminii can even by analogy be applied. It has been determined, in courts of admiralty, that vessels recaptured after a short time do not revert to m C. 6. " C. 7. ° C. 8. Moral limi tation of rights in war. their owner. This chapter must be reckoned rather required as 136. All unnecessary devastation ought to be avoided, Moderation such as the destruction of trees, of houses, espeto spoil. cially ornamental and public buildings, and of everything not serviceable in war, nor tending to prolong it, as pictures and statues. Temples and sepulchres are to be spared for the same or even stronger reasons. Though it is not the object of Grotius to lay down any political maxims, he cannot refrain in this place from pointing out several P C. 9. 9 C. 10. ' C. 11. considerations of expediency, which should induce us to restrain the licence of arms within the limits of natural law. There is no right by nature to more booty, strictly speaking, than is sufficient for our indemnity, wherein are included the expenses of the war. And the And the property of innocent persons, being subjects of our enemies, is only liable in failure of those who are primarily aggressors. And as to 137. The persons of prisoners are only liable, in strict moral justice, so far as is required for satisfaction of our injury. The slavery into which they may prisoners. be reduced ought not to extend farther than an obligation of perpetual servitude in return for maintenance. The power over slaves by the law of nature is far short of what the arbitrary law of nations permits, and does not give a right of exacting too severe labour, or of inflicting punishment beyond desert. The peculium, or private acquisitions of a slave by economy or donation, ought to be reckoned his property. Slaves, however, captured in a just war, though one in which they have had no concern, are not warranted in conscience to escape and recover their liberty. But the children of such slaves are not in servitude by the law of nature, except so far as they have been obliged to their master for subsistence in infancy. With respect to prisoners, the better course is to let them redeem themselves by a ransom, which ought to be moderate." Also in con 138. The acquisition of that sovereignty which was enjoyed by a conquered people, or by their rulers, is not only legitimate, so far as is warranted by the quest. punishment they have deserved, or by the value of our own loss, but also so far as the necessity of securing ourselves extends. This last is what is often unsafe to remit out of clemency. It is a part of moderation in victory to incorporate the conquered with our own citizens on equal terms, or to leave their independence on reasonable precautions for our own security. If this cannot be wholly conceded, their civil laws and municipal magistracies may be preserved, and, above all, the free exercise of their religion. The interests of conquerors are as much consulted, generally, as their reputation, by such lenient use of their advantages. "C. 12. 'C. 13. " C. 14. * C. 15. And in re stitution to 139. It is consonant to natural justice that we should restore to the original owners all of which they right owners. have been despoiled in an unjust war, when it falls into our hands by a lawful conquest, without regard to the usual limits of postliminium. Thus, if an ambitious state comes to be stripped of its usurpations, this should be not for the benefit of the conqueror, but of the ancient possessors. Length of time, however, will raise the presumption of abandonment. Nothing should be taken in war from neutral states, except through necessity and with compensation. The most ordinary case is that of the passage of troops. The neutral is bound to strict impartiality in a war of doubtful justice. But it seems to be the opinion of Grotius, that by the law of nature, every one, even a private man, may act in favour of the innocent party as far as the rights of war extend, except that he cannot appropriate to himself the possessions of the enemy; that right being one founded on indemnification. But civil and military laws have generally restrained this to such as obey the express order of their government." Promises to enemies and The 140. The licence of war is restrained either by the laws of nature and nations, which have been already pirates. discussed, or by particular engagement. obligation of promises extends to enemies, who are still parts of the great society of mankind. Faith is to be kept even with tyrants, robbers, and pirates. He here again adverts to the case of a promise made under an unjust compulsion; and possibly his reasoning on the general principle is not quite put in the most satisfactory manner. It would now be argued that the violation of engagements towards the worst of mankind, who must be supposed to have some means of self-defence, on account of which we propose to treat with them, would produce a desperation among men in similar circumstances injurious to society. Or it might be urged, that men do not lose by their crimes a right to the performance of all engagements, especially when they have fulfilled their own share in them, but only of such as involve a positive injustice towards the other party. In this place he repeats his former doctrine, that the most invalid promise may be rendered binding by the addition |