[352] CHAPTER VII.

Of the right over Prisoners of War.

I. 1 BY nature, that is, in the primeval state of nature, and without the act of man, no men are slaves, as we have elsewhere said; and in this sense we may assent to what the jurists say, that slavery is against nature. But that slavery should have its origin in human act, that is, in convention or delict, is not repugnant to natural justice, as we have also shown.

2 But by the laws of nations, of which we now speak, slavery is more comprehensive, both as to persons, and effects. For, if we regard the persons, it is not those only who surrender themselves, or promise slavery, who are reckoned slaves; but all persons whatever who are taken in a regular war, as soon as they are brought intra præsidia, as Pomponius says. Nor is delict requisite; the lot of all is alike: even of those, as we have said, who by their destiny are found within the enemies’ boundaries when war breaks out.

3 So Polybius says, What punishment have these justly incurred? some one may say, when he sees men sold with their wives and children, when they have been conquered in war. These calamities are by the laws of war to be borne by those who have done no wrong. And hence, as Philo notes, many good men have, by various misfortunes, lost the liberty to which they were born.

4 Dio Prusæensis, after reciting some modes of acquiring ownership, adds, When a person, having acquired another as a captive in war, holds him as a stave. So to carry off boys captured in war Oppian calls the Law of War.

II. And not only do they themselves become slaves, but their posterity for ever; that is, those who are born of a slave-mother in slavery. And this is what Martianus says, that by the Law of Nations, those are born our slaves, who are born of our slave-servants. The womb was subjected to slavery, says Tacitus, speaking of the wife of a German leader: [Arminius, whose wife was pregnant when she came into the power of the Romans. Gronov.]

353 III. 1 The effects of this right are unlimited, so that the master may do any thing lawfully to the slave, as Seneca says. There is no suffering which may not be inflicted on such slaves with impunity; no act which may not in any manner be commanded or extorted; so that even cruelty in the masters, towards persons of servile condition, is unpunished; except so far as the Civil Law imposes limits and punishments for cruelty. In all nations alike, says Caius, we may see that the masters have the power of life and death over slaves. He adds afterwards, that by the Roman Law, limits were set to this power, that is, on Roman ground. So Donatus on Terence, What is not lawful from a master to a slave?

2 And all the property which is taken becomes the right of the master, along with the person. The slave who is under the power of another, can have nothing of his own, says Justinian.

IV. Hence the opinion is refuted, or at least restricted, of those who say that incorporeal things are not acquired by right of war. For it is true that such property is not primarily and per se acquired, but it is acquired by the intervention of a person to whom it had belonged. We must except however rights which flow from a peculiar character of the person, and are therefore inalienable, as the paternal right. If these can remain at all, they remain with the person; if not, they are extinguished.

V. 1 All these powers are introduced by the Laws of Nations, for no other cause than this; that the captors, induced by so many advantages, may willingly abstain from the extreme rigour by which they were allowed to put captives to death, either immediately or after any delay, as we have said. They are called servi, says Pomponius, because the conquerors commonly sell them, and so preserve them from being killed. I have said that they may willingly abstain: for it is not a compact by which they are compelled to abstain, if you look at the Laws of Nations; but a mode of persuading them to adopt a more useful course.

2 For the same reason, this right is allowed to be transferred to others, like the ownership of things. And this right is extended so as to apply to the offspring, on this account; that otherwise, if the captors had used their extreme right, they would never have been born. From which it follows, that those born before the calamity, if they are not captured, do not become slaves. And therefore it was established that the children should follow the condition of the mother, because the cohabitation of slaves was not guarded, either by law or by sure custody, so that there could be no sufficient presumption to indicate the father. And in this sense we must take the dictum of Ulpian: The law of nature is this, that he who is born out of legitimate matrimony follows the mother: that is, the law of general custom, drawn from a natural reason; as we have shewn that the phrase the law of nature is elsewhere improperly used.

3 That these rights were not introduced in vain by the nations, 354we may understand by the example of civil wars, in which we commonly find the captives put to death, because they could not be reduced to slavery; as Plutarch and Tacitus note.

4 Whether those who are captured belong to the people or to individuals, is to be determined by what we have said of prize: for the laws of nations have put men on the footing of things, in this point. So Caius says, What is taken from the enemy becomes forthwith, jure gentium, the property of the captors; and thus free men also are reduced to slavery.

VI. 1 But what some theologians hold, that they who are captured in an unjust war, or born of such captives, have no moral right to escape, except to their own people, I do not hesitate to pronounce a mistake. There is indeed this difference; that if they escape to their own people while the war is still going on, they obtain their liberty by the right of postliminium: if they escape to others, or even to their own people after peace is made, they are to be restored to their master on his claiming them. But it does not thence follow that they are under a bond of conscience: for there are many rights which only regard an external judgment; and such are these rights of war which we are now expounding. Nor is it a valid objection that such a bond arises from the nature of ownership. For I reply that there are many kinds of ownership; and that thus there may be ownership which is valid only in a human judgment, and that, a coactive one: and this occurs also in other kinds of rights.

2 Such also, to a certain extent, is the right of annulling testaments, for defect of some formality which the Civil Law prescribes. For the more approved opinion is, that what is left me by such a testament, I may retain with a good conscience: at least as long as it is not contradicted. And nearly the same is the case of one who, according to the Civil Law, occupies a thing by prescription malâfide, knowing that he had no right to it: for he too is protected in his ownership by the Civil Law. And by this distinction, we easily solve the knot which Aristotle proposes, It is right that each one should have his own. But what the judge decides sincerely, even if wrong, is law. And thus the same thing would be right and not right.

3 But in our question, [whether a captive may escape,] no cause can be devised why nations should have imposed any bond beyond the external one. For the right of claiming a slave, of coercing him, even of putting him in chains, and of keeping his property, was sufficient to induce captors to spare their captives; or if they were so savage as not to be moved by these advantages, they would certainly not be moved by that mental bond; and even this, if they judged it necessary, they might demand as a promise or oath.

4 Nor are we lightly, in a law which is established, not upon natural equity, but for the sake of avoiding a greater evil, to assume an interpretation which would make unlawful an act otherwise lawful. So the Florentine Jurist; It makes no difference how a cap­355tive returns, whether he has been set at liberty or escaped by art or force. For in fact, this right of captivity is a right, in such a sense that in another sense it is commonly a wrong: as it is called by Paulus the jurist. It is a right, so far as certain effects are concerned; it is a wrong, if you look at the intrinsic nature of the thing. Whence this also appears; that if any one, captured in an unjust war, comes into the power of the enemy, he is not morally guilty of theft if he carries away his own property, or the reward of his labour, if there is any due beyond his aliment; provided that he do not owe any thing to his master, either on his own or on the public account, or to him whose right the master has received. Nor does it prove any thing, that such flight and subduction of property is commonly severely punished. For these and many like things are done by the more powerful, not because they are just, but because they are expedient.

5 The precepts in some of the Canons, forbidding persons to persuade a slave to leave the service of his master, if you refer them to slaves who are bearing a just punishment, or have made themselves slaves by a voluntary compact, are just precepts. But if you refer them to those who are captured in an unjust war, or born of such captives, the precepts tend to show that Christians ought rather to encourage Christians to patience, than to a course which though lawful, may offend minds strangers to Christianity, or otherwise weak. And in the like spirit we must receive the exhortations of the Apostles to slaves, except that these seem rather to exhort them to obedience while they are slaves, which is agreeable to natural equity; for ailment and work done have a natural correspondence.

VII. But I think that another precept of the theologians whom I have begun to speak of is right: that a slave cannot, without violating the duty of justice, resist the master in the execution of that external right. For between this case and the other, there is a manifest discrepance. The external right, which consists not only in the impunity of the act, but in the protection of the right by the judicial tribunals, is void if the right of resisting on the opposite side remain. For if it be lawful to resist the master by force, it will be lawful to resist the magistrate who protects the master; and yet the magistrate, by the Law of Nations, ought to defend the master in his ownership and its exercise. This right, therefore, resembles that which we have elsewhere ascribed to the supreme authority in each state, that to resist them by force is not lawful or morally right. And so Augustine joined the two, when he said, The common people must bear with princes, and slaves with their masters, that by the exercise of longsuffering, temporal things may be borne, and eternal things looked to.

VIII. This also is to be noted; that this Law of Nations respecting captives, has neither been received always, nor among all nations; although the Roman jurists speak universally, pointing at the more known part by the name of the whole. Thus among the Hebrews, 356who were separated by special institutes from the common rules of other nations, there was a refuge for slaves (Deut, xxiii. 15): that is, as the commentators rightly note, for those who had fallen into that calamity by no fault of theirs. And from a like cause appears to have arisen the right which, in the Frankish land, was given slaves, of claiming to be free; although at present that is given not only to captives taken in war, but to slaves of every kind.

IX. I It has also been established among Christians in general, that in cases of war, the captives are not to be made slaves so as to be sold, forced to work, or to suffer other things which belong to the condition of slaves: and most rightly: since they have been, or ought to be, better taught by the great teacher of all charity, than to be incapable of being withheld from killing wretched men except by the concession of some smaller cruelty. And we are told by Gregoras that this custom long ago passed from one generation to another of those who professed the same religion: nor was it peculiar to those who lived under the Roman empire, but common to them with the Thessalians, Illyrians, Triballians and Bulgarians. And this advance, at least, a small advance though it be, was produced by a reverence for the law of Christ, which, when Socrates formerly urged upon the Greeks, as a rule among themselves, he produced no effect.

2 The rule which the Christians follow in this matter, the Mahomedans also follow among one another. But there has remained among Christians the usage of keeping captives till a price is paid for them, of which the appointment is in the will of the victor, except there be some certain convention. The right of retaining captives is usually given to those who have captured them, except persons of the highest rank: for with regard to them, the custom of most countries gives the right to the State or its Head.