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 unfortunantly 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 abondoning 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 intriduction 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.

CHAPTER VIII.

ON EMPIRE OVER THE CONQUERED.

Civil and sovereign jurisdiction acquired by conquest - Effects of such acquisition- Absolute power or mixed power gained by conquest — Incorporeal rights acquired in the same manner - Thessalian bond

considered.

I. IF INDIVIDUALS can reduce each other to subjection, it is not surprising that states can do the same, and by this means acquire a civil, absolute, or mixed, dominion. So that, in the language of Tertullian, victory has often been the foundation of dominion, and it often happens, as Quintilian remarks, that the boundaries of states and kingdoms, of nations and cities, can only be settled by the laws of war.

Quintus Curtius relates of Alexander, that he said, it was for conquerors to dictate laws, which the conquered were bound to receive. This has always been a general opinion and rule, thus Ariovistus, in Caesar, laid it down as an indubitable right of war, for the conqueror to impose whatever terms he pleased upon the conquered, nor did he suppose the Roman people would allow any one to interpose with them in the discretionary use of this right.

By conquest, a prince succeeds to all the rights of the conquered sovereign or state; and if it be a commonwealth, he acquires all the rights and privileges, which the people possessed. He gains the same right, which the state had before, to alienate the possessions, or to transmit them if he chuses to his descendants, by which means they will become a patrimonial territory.

II. The right of conquest may go even beyond this. A state may hereby lose its political existence, so far as to form an appendage to another power, which was the case with the Roman provinces: or if a king engaged in war against a state, at his own expence, has reduced it to complete subjection, his authority over it becomes an absolute, rather than a limited sovereignty. It can no longer be called an independent state, but, by the right

of conquest, forms an integral part of the prince's immediate dominions. Xenophon in drawing the character of Agesilaus, commends him for requiring no other services and obedience of the cities he had conquered, than what is usually paid by subjects to their lawful sovereigns.

III. From hence it will be easy to understand what is meant by a mixed government, composed partly of civil, and partly of absolute power;-it is a government, where subjection is united with some degree of personal liberty.

We sometimes read of nations, that have been so far subdued, as to be deprived of the use of all warlike arms, being allowed to retain no instruments of iron, but the implements of husbandry; and of others, that have been compelled to change their national customs and language.

IV. States as well as individuals may lose their property by the laws of war: and even a voluntary surrender is in reality nothing more than giving up what might have been taken by force. For as Livy says, where all things submit to the power of arms, the conqueror may impose whatever terms, and exact whatever fines he pleases. Thus the Roman people by the victories of Pompey acquired all the territories, which Mithridates had gained by conquest.

The incorporeal rights too, belonging to one state, may pass to another by the rights of conquest. Upon the taking of Alba, the Romans retained all the rights belonging to that city. From hence it follows, that the Thessalians were released from the obligation of paying a sum of money, which they owed to the Thebans; Alexander, upon the taking of Thebes, having, as a conqueror, forgiven the debt. Nor is the argument used by Quintlian in favour of the Thebans, at all convincing: he maintains that nothing but what is of a tangible nature can pass by right of conquest, a class of things to which incorporeal rights can never be reduced: and that there is a material difference between inheritance and victory, the former of which may convey incorporeal rights, but the latter can give nothing except things of a solid and visible substance.

But on the other hand it may be justly said, that whoever is master of the persons, is master also of all the rights and things, which are vested in those persons, who are in that case considered as having nothing of their own. Indeed if any one should leave to a con