[384] CHAPTER XIII.

Restraints respecting Captures.

I. 1 EVEN the capture of what belongs to the enemy in a just war, is not to be conceived to be free from fault, or relieved from all burthen of restitution. For if you look at what is right, it is not lawful to take or have anything, beyond what rests on the enemy’s debt to you; except that beyond this, things necessary to your safety may also be detained, but are to be restored when the peril is over, either in themselves or in their price; as we have explained, B. II. C. ii. For what would be lawful in things belonging to those with whom we are at peace, is still more clearly lawful in the case of an enemy. This is the right of taking, without the right of keeping.

2 As a debt may be due to us, either to rectify an existing inequality, or as a punishment; so a thing belonging to the enemy may be acquired either way, but with a difference. For as we have said above, in virtue of the former kind of debt, the property, not only of the debtor himself, but of his subjects also, is bound by the Instituted Law of Nations, as under a kind of suretyship. And this Law of Nations we hold to be of another kind from that which consists only in impunity, or the compulsion of tribunals. For, as he with whom we deal, does, by our private consent, acquire, not only an external right to our property, but an internal also; so also is such a right acquired from a kind of common consent which contains in itself by a peculiar force the consent of individuals; in which sense, the Law is called the Common Pact of the State. And that such an appointment was intended by nations, in this case, is the more probable, inasmuch as this Law of Nations is introduced, not only for the sake of avoiding a greater evil, but in order that each one may obtain his own right.

II. But in the other kind of debt, which is debt as penalty, I do not see that such a right over the property of subjects is established by the Law of Nations. For such an obligation, imposed on the property of another, is an odious rule, and therefore ought not to be carried further than it appears to be actually settled; nor is the utility of the extension on a parity, in this, and in the other kind of debt: for the other is a part of my property, but this is not; and therefore the exaction of it may be omitted without wrong. Nor is there any objection, in what we have said above of the Attic law. For 385in that case, men wore obliged, not properly because the city could be punished, but only in order to compel the city to do what it ought to do, that is, to pass judgment on a guilty person; which official debt is to be referred to the former kind of debt, not to the latter. For it is one thing to owe the duty of punishing, another, to owe or to be liable to a punishment; although, from the omission of the former, the latter often may follow; but still, so that they are distinct, the former as the cause, and the latter as the effect. Therefore the property of subjects cannot be acquired on the ground of penalty, but that of those only who have offended; among whom are included also the magistrates, who do not punish offenses.

III. But the property of subjects may be both taken and kept, not only for the exaction of the primary debt, from whence the war arose, but also of a debt which grows up during the process, as we said at the beginning of this Book. And in this sense, we are to take what is said by some theologians, that captures in war are not to be reckoned only in the way of compensation for the principal debt. For this is to be understood until, according to a sound judgment, satisfaction is made for the damage which has been inflicted in the war itself. Thus the Romans in their dispute with Antiochus, thought it a reasonable demand that the king should repay all the expenses of the war, since by his fault the war took place. So, of the expenses of the war, in Justin, Thucydides; and elsewhere frequently. And what is justly imposed on the conquered, is justly extorted by war.

IV. 1 But here too, we must recollect what we have elsewhere said, that the rules of charity are wider than those of justice. He who abounds in wealth, is guilty of want of clemency, if he wring a needy debtor with stringent rules, and exact the uttermost farthing: and still more, if that debtor have run into the debt by his own goodness, as for instance, by being security for a friend, without having turned any of the money to his own profit. The danger of a surety is to be pitied, as Quintilian says. And yet even so hard a creditor does nothing against strict right.

2 Wherefore humanity requires that we should leave, to those who are not in fault in the war, and who are only bound as sureties, the things which we can do without, better than they can: especially if it appear that they will not recover from their city what they thus lose. So Cyrus, when Babylon was taken, said to his soldiers, Whatye do not take from the enemy, they will owe to your humanity.

3 This also is to be noted, that so long as we have a hope of receiving our debt from the original debtor, or from those who have made themselves debtors by not yielding our right, to come upon those who are free from fault, although it may not be at variance with strict law, is contrary to humanity.

4 Examples of this humanity are everywhere extant in history, especially that of Rome: as when, on the conquest of a country, the lands were granted, on condition that they should belong to the con386quered city: or when a portion of the land was left honoris gratia to the old possessors. Thus the Veientes were mulcted of part of their land by Romulus. So Alexander of Macedon gave the Uxii their lands, on the payment of tribute. So you often read that cities which surrendered, were not plundered. And we have said above, that not only persons, but the lands themselves of the cultivators, were often spared, with general approval, and according to the pious precept of the Canons, at least under tribute; and that, under a like tribute, merchants have been accustomed to receive protection in war.