de Vattel: Of the Rights of Nations in War, And What We Are Allowed to Do to the Enemy's Person

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* NOW - Buy this resource online! Click here * Of the Rights of Nations in War, — And, First, of What We Have a Right to Do, and What We Are Allowed to Do to the Enemy's Person, in a Just War§ 136. General principles of the rights against an enemy in a just war.§ 137. Difference between what we have a right to do and what is barely allowed to be done with impunity between enemies.§ 138. The right to weaken an enemy by every justifiable method.§ 139. The right over the enemy's person.§ 140. Limits of this right.§ 141. A particular case, in which quarter may be refused.§ 142. Reprisals§ 143. Whether a governor of a town can be punished with death for an obstinate defense.§ 144. Fugitives and deserters.§ 145. Women, children, the aged, and sick.§ 146. Clergy, men of letters, etc.§ 147. Peasants, and,§ 148. The right of making prisoners of war.§ 149. A prisoner of war not to be put to death.§ 150. How prisoners of war are to be treated.§ 151. Whether prisoners, who cannot be kept or fed, may be put to death.§ 152. Whether prisoners of war may be made slaves.§ 153. Exchange and ransom of prisoners.§ 154. The state is bound to procure their release.§ 155. Whether an enemy may lawfully be assassinated or poisoned.§ 156. Whether poisoned weapons may be used in war.§ 157. Whether springs may be poisoned.§ 158. Dispositions to§ 159. Tenderness for the person of a king who is in arms against us.
   1. From several passages of Grotius's History of the Disturbances in the low Countries, it appears that the war between the Dutch and Spaniards was carried on with unrelenting cruelty at sea, although the parties had agreed to observe the usual rules of moderation on land. Intelligence being received by the confederate states, that the Spaniards had, by the advice of Spinola, embarked at Lisbon a body of troops destined for Flanders, they dispatched a squadron to wait for them in the strait of Calais, with orders to drown without mercy every soldier that was taken; and the order was punctually executed. — Book xiv. p. 550.
   2. In the French; we here find (apparently very much out of place) a verbatim repetition of the long note which has already appeared in page 286
   3. Lysander, having captured the Athenian fleet, put the prisoners to death, on account of various cruelties practiced by the Athenians during the course of the war, but principally on account of the barbarous resolution which they were known to have adopted, of cutting off the right hand or every prisoner, in case of victory declaring on their side. He spared Adeimantus alone, who had opposed that infamous resolution. Xenoph. Hist. Græc. lib. ii. cap. i.
   4. Neque se in obsides innoxios, sed in ipsos, si defecerint, sæviturum; nec ab inermi, sed ab armato hoste, pœnas expetiturum. — Tit. Liv. lib. xxviii.
   5. Quint. Curt. lib. iv. cap. i. and ii.
   6. Arrian. de Exped. Alexand. lib. i. cap. xx.
   7. Lib. xiv. cap. cxiii., quoted by Grotius, lib. iii. cap. ii. § xvi. n. v.
   8. The false maxim which formerly prevailed on this subject, is noticed in the relation of the battle of Musselburgh (De Thou, vol. i. p. 287). "The general (the duke of Somerset), the regent of England, was on this occasion much admired for his clemency, which induced him to spare the lives of the besieged (the garrison of a castle in Scotland.) notwithstanding that ancient maxim in war, which declares that a weak garrison forfeit all claim to mercy on the part of the conqueror, when, with more courage than prudence, they obstinately persevere in defending an ill-fortified place against a royal army and when, refusing to accept of reasonable conditions offered to them, they undertake to arrest the progress of a power which they are unable to resist." — Pursuant to that maxim, Cæsar answered the Aduatici that he would spare their town, if they surrendered before the battering-ram touched their walls; and the duke of Alva strongly blamed prosper Colonna for having granted terms of capitulation to the garrison of a castle, who had refused to treat of a surrender until the cannon had been employed against them.
   9. See his life.
   10. But it is not lawful to employ menaces of every kind in order to induce the governor or commandant of a town to surrender. There are some, against which nature revolts with horror. Louis the Eleventh, being engaged in the siege of St. Omer, and incensed at the long resistance he experienced, informed the governor, Philip, son of Antony, the Bastard of Burgundy, that if he did not surrender the place, his father (who was a prisoner in Louis's hands) should be put to death in his sight. Philip replied that he would feel the most poignant regret to lose his father, but that his honor was still dearer to him, and that he was too well acquainted with the king's disposition, to apprehend that he would disgrace himself by the perpetration of so barbarous a deed. — Hist. of Louis XI. book viii
   11. See Simler, de Repub. Helvet.
   12. Book iii. ch. xi. § xi.
   13. Cyrus, Belisarius, etc.
   14. Cyrus proposed to the king of Assyria, that both parties should reciprocally spare the cultivators of the soil, and make war only against those who appeared in arms: — and the proposal was agreed to. Xenoph. Cyrop. lib. v. cap. 4.
   15. Epist. Pet. Arrag. apud Petr. de Vineis.
   16. In 1593, the council of the Netherlands, at the persuasion of the count de Fuentes, resolved no longer to observe towards the United Provinces that moderation which humanity renders so necessary in war. They gave orders for putting to death every man who should be made prisoner, and, under the same penalty, prohibited the payment of any contributions to the enemy. But the complaints of the nobility and clergy, and still more the murmurs of the military, who saw themselves exposed to an infamous death in case of falling into the enemy's hands, obliged the Spaniards to re-establish those indispensable usages, which in the words of Virgil {Ain. x. 532}, are called belli commercia, — the ransom or exchange of prisoners, and the payment of contributions to avert pillage and devastation. The ransom of each prisoner was then settled at a month's pay. — Grotius, Hist. of Netherlands, book iii.
   17. See Anson's Voyage round the World. {P. 382, 383. Lond, Ed. 4 to 1756.}
   18. Hist. of France, Reign of Charles VI.
   19. See Livy, lib, ii. cap. xii, — Cicero, pro P. Sextio. Valer, Max. lib. iii. cap. iii. — Plutarch, in Poplicol.
   20. Grotius, lib. iii. cap. 4, § xv ii. n. i.
   21. Justin, lib. ii. cap, xi.
   22. See the dialogue between Julius Cæsar and Cicero, in the Mélanges de Litérature et Poésies. — Farrudge, sultan of Egypt, sent to Timur-bec an ambassador, accompanied by two villains, who were to assassinate that conqueror during the audience. This infamous plot being discovered, "It is not," said Timur, "the maxim of kings to put ambassadors to death: but as to this wretch, who under the sacred barb of religion, is a monster of perfidy and corruption, it would be a crime to suffer him and his accomplices to live." Pursuant, therefore, to that passage of the Koran which says that "treachery falls on the traitor's own head," he ordered him to be dispatched with the same poniard with which he had intended to perpetrate the abominable deed. The body of the traitor was then committed to the flames, as an example to others. The two assassins were only condemned to suffer the amputation of their noses and ears; Timur contenting himself with this punishment, and forbearing to put them to death, because he wished to send them back with a letter to the sultan. — {Petis de la Croix.} Hist, of Timur-bec, book v. chap. xxiv. {p. 313 Ed. Edif. 1723}
   23. Book iii. chap. iv. § xv.
   24. Oude gar tauta se chiritti menuomen, all d pos me toson pathos emin diabolen enegke — Plut. in Pyrr.
   25. Sed communis exempli et fidei ergo visum est, uti te salvum velimus; ut esset, quem armis vincere possemus. — Aun Gell. Noct Attic lib. iii. cap. viii.
   26. Armis belia, non venenis, geri debere. — Valer. Maxim. lib. vi. ch. v. num. i.
   27. Non fraude, neque occultis, sed palam, et armatum, — populum Romanum hostes suos ulcisci. — Tacit. Annal. lib. ii. cap. lxxxviii.
   28. Quint. Curt. lib, iv. cap. xi. num. xviii.
   29. Nec Antigonum, nec quemquam ducum, sic velle vincere, ut ipse in se exemplum pessimum statuat. — Justin. lib. xiv. cap. i. num. xii.
   30. Quem quidem [Bessum] cruci adfixum videre festino, omnibus regibus gentibusque fidel, quam violavit, meritas pœnas solventum. — Q. Curt. lib. vi. ch. iii. num. xiv.
   31. Grotius, book iii. ch. iv. § xvi.
   32. Grotius, ibid. § xvii.
   33. The laws of justice and equity are not to be less respected even in time of war. The following I quote as a remarkable instance; — Alcibiades, at the head of an Athenian army, was engaged in the siege of Byzantium, then occupied by a Lacedæmonian garrison; and finding that he could not reduce the city by force, he gained over some of the inhabitants, who put him in possession of it. One of the persons concerned in this transaction was Anaxilaus, a citizen of Byzantium, who, being afterwards brought to trial for it at Lacedæmon, pleaded in his defense, that, in surrendering the city, he had not acted through ill-will to the Lacedæmonians, or under the influence of a bribe, but with a view to save the women and children, whom he saw perishing with famine; for Clearchus, who commanded the garrison, had given to the soldiers all the corn that was found in the city. The Lacedæmonians, with a noble regard to justice, and such as seldom prevails on similar occasions, acquitted the culprit, observing that he had not betrayed, but saved the city, and particularly attending to the circumstance of his being a Byzantine, not a Lacedæmonian. — Xenoph. His. Græc. lib. i. cap. iii.
   34. Watteville's Hist. of the Helvetic Confederacy, vol. i. p. 126.
   35. In the year 1743.
   36. Timur-bec made war on Joseph Sofy, king of Carezem, and subdued his kingdom. During the course of the war, that great man proved himself to be possessed of all that moderation and politeness which is thought peculiar to our modern warriors. Some melons being brought to him whilst he was besieging Joseph in the city of Eskiskus, he resolved to send a part of them to his enemy, thinking it would be a breach of civility not to share those new fruits with that prince when so near him: and accordingly he ordered them to be put into a gold basin, and carried to him. The king of Carezem received this instance of politeness in a brutal manner; He ordered the melons to be thrown into the fossé, and gave the basin to the city gate-keeper. — La Croix. His. of Timur-bec, book v. ch. xxvii.
   37. On this subject, let us notice a trait of Charles XII. of Sweden, in which sound reason and the most exalted courage are equally conspicuous. That prince, being engaged in the siege of Thorn in Poland, and frequently walking round the city, was easily distinguished by the cannoneers, who regularly fired upon him as soon as they saw him make his appearance. The principal officers of his army, greatly alarmed at their sovereign's danger, wished to have information sent to the governor, that, if the practice was continued, no quarter should be granted either to him or to the garrison. But the Swedish monarch would never permit such a step to be taken, telling his officers that the governor and the Saxon cannoneers were perfectly right in acting as they did, that it was himself who made the attack upon them, and that the war would be at an end if they could kill him; whereas they would reap very little advantage even from killing the principal officers of his army. — Histoire du Nord, p. 26. Edit. A.D. 1797.