The most excellent Hugo Grotius, his three books treating of the rights of war & peace in the first is handled, whether any war be just : in the second is shewed, the causes of war, both just and unjust : in the third is declared, what in war is lawful, that is, unpunishable : with the annotations digested into the body of every chapter / translated into English by William Evats ...

CHAP. VII. Of the Right over Captives taken in War.

• I. That Captives taken in a solemn War, are by the Law of Nations, slaves.
• II. Yea, and their posterity.
• III. That whatsoever is done unto them is un∣punishable.
• IV. Even the incorporeal things that belong to Captives may be acquired by War.
• V. The cause why this was ordained.
• VI. Whether Captives may make their escape▪
• VII. Or resist their Lords.
• VIII. That this Right is not allowed in all Nations.
• IX. Nor now amongst Christians, and what succeeds in its room.

I. Captives in a solemn War na∣turally slaves.

THERE is no man by nature servant to another, that is, no man in his primi∣tive state or condition considered, without any fact done by himself, whereby his natural liberty is impeached, as I have elsewhere shewed* 1.1; in which sense our Lawyers may be understood, when they say, that to be another mans slave is against nature: But that this kind of slavery might at first be introduced by some fact done; name∣ly, by some voluntary agreement, or for some crime committed, is not repugnant to natu∣ral justice, as we have elsewhere also shewed. But by that Law of Nations,* 1.2 whereof we now treat, the word Servitude is of a larger extent, both as to persons, and as to its ef∣fects; for as to the persons, not only they that surrender themselves to the will of the Conquerour, or that oblige themselves by promise so to do, but all persons whatsoever that are taken in a solemn War, as soon as they shall be brought within our Garrisons, are altogether accounted Captives or Slaves, as Pomponius hath well observed. Neither is it to any purpose to plead, that they never bare Arms against us, nor declared themselves Ene∣mies by any Hostile Act, seeing that in this case, Par est omnium fortuna; Every mans conditi∣on is alike: yea, even the condition of those, who by mere fate happen to be found in the Enemies Territories, at such time as the War unexspectedly brake forth.* 1.3 Polybius speak∣ing of Captives taken in actual Arms, puts the Question thus, Quid patiendum est his ut justa supplicia pendant? What must these men suffer that their punishment may be just? If any man say they may be sold with their Wives and Children, he answers, At haec belli lege etiam illis ferenda sunt, qui nihil impii commiserunt; But so, saith he, may they be by the Law of Arms, who never did us hurt. Philo notes the very same where he saith, That ma∣ny good men lose their natural liberty, by occasions that are involuntary, and merely accidental. Dion Prusaeenses recounting the several ways whereby a man may get Dominion, assigns this as the third, When a man hath taken a Prisoner in time of War, that never did any act of hostility, and by that means makes him his slave:* 1.4 So Children being taken in War may be led away and made slaves. Servius upon the first of Virgils Aeneads speaking of Hesione the Daughter of Laomedon, whom Hercules slew as he was going out of Troy, saith, That she was taken Prisoner by the Law of Arms, and given to Telemon, Hercules his companion. And in another place he tells us, That the Grecians refused to deliver her back to the Trojans, saying, she was a Prisoner of War.

II. Yea and there posterity.

Neither are the persons of Men and Women only, thus taken made slaves, but their posterity for ever; for whosoever is born of a Woman after her Captivity, is a slave born; for, Partus sequetur ventrem; The Child will follow the condition of the Mother. Martia∣nus accounts all those for slaves by the Law of Nations, who are born of Bond-women. And Tacitus speaking of the Wife of Arminius a German Prince, who had been taken Prisoner by Germanicus, saith, That she had Ʋtrum servitio subjectum; meaning, that what∣soever Children were born of her were bond-slaves.

III. Whatsoever is done unto such is unpunish∣able.

The effects and consequences of this Right are infinite so that there is nothing so un∣lawful but the Lord may do it to his slave, as Seneca the Father notes* 1.5, there are no Torments but what may with impunity be imposed on them, nothing to be done but what they may be forced to do by all manner of rigour and severity; so that all kinds of cruelty may by the Law of Nations, without controul or appeal be exercised upon Captives, were it not that this licence is somewhat restrained by the Civil Law. It is universally indulged by all Nations, to the Lord to have power of life and death over his slave, saith Cajus the Lawyer; but he tells us withal, That the Roman Laws did limit other∣wise unbridled power within their own Territories. Quid non iustum Domino in servum? What may not the Lord do unto his slaves, saith Donatus upon Terence? yea,* 1.6 not only the person, but all that is taken with him are lawful prize, Ipse servus qui in potestate alte∣rius est, nihil suum potest habere; He that is a slave, saith Justinian,* 1.7 and under the pow∣er of another, can have right to nothing that was his before. So likewise Philo, He that is a

Captive loseth his right to all other things, no less than the power over himself.

IV. Even the things incor∣poreal of the slave are trans∣ferred to the Lord.

Hence then, their Opinion may be confuted, or at least restrained, who hold that things incorporeal cannot by the Law of Arms be acquired.* 1.8 Val. Maximus records it of Scipio Nasica, That whereas being Consul he was taken prisoner by the Carthaginians at Li∣para, and so by the Right of War had lost all; yet fortune afterwards smiling upon him, he recovered all, and was again created Consul. It is true, that primarily, and by it self, things incorporeal cannot by War be gained, but they may be lost as to the person whose they formerly were. But yet we must here except all things that do proceed from some sin∣gular propriety in the person taken, which by no means can be alienated, as the right of a Father to his Son, for such Rights, if they do not remain with the person are altogether extinct.

V. The reason why this Insti∣tuted.

Now all this unlimited Power is by the Law of Nations granted for no other Cause than that the Conquerour being allured by so many advantages might be willing to forbear that utmost cruelty which they may lawfully use by killing their Captives, either in the heat of fight, or afterwards in cold blood. The name of servant, as Pomponius tells us, did at first arise from the custom of Generals who sold their Captives, and thereby preserved them from being slain; (Servi quasi servati:) That they may be the more willing to for∣bear, I say, for it is no bargain or agreement, whereby they stand obliged to save them, if we respect the Law of Nations; but a perswasive argument drawn from profit, it be∣ing far more beneficial to the Conquerour to sell his Prisoner then to kill him. And therefore he hath the same power to transfer his Right in his Captive to another, as he hath to assign over unto others the Right and property he hath in any of his own Goods or Chattels. This Power is also extended to the Children that are born after Captivity, because if the Conquerour had used his power to the utmost, they had not been born. From whence it follows, That the Child that is born before that Captivity, in case he be not taken Prisoner, remains free. Therefore by the Law of Nations, the Children born of such Captives follow the Mothers condition, because their Chastity is not provided for by any Law, nor is there any strait guard kept upon them; and therefore no pre∣sumption how great soever is sufficient to prove who is the Father. And thus is that of Ʋlpian to be understood, Lex Naturae haec est, ut qui nascitur, sine legitimo matrimonio ma∣trem sequatur; The Law of Nature is this, That he that is born without lawfull marriage, should follow the condition of the Mother: that is, General custom grounded on some Natu∣ral Reason hath moulded this into a Law (* 1.9abusively sometimes so taken, as we have al∣ready elsewhere shewn) they that are born out of wedlock should retain the name and quality of the Mother, and not of the Father, because of the certainty of the one, and the uncertainty of the other. But that this unlimited Power over Captives was not in∣troduced by the general consent of Nations in vain, we may collect from the usual pra∣ctice of Civil Wars, wherein all Prisoners are commonly put to the sword, because they cannot be sold for slaves,* 1.10 which was well observed by Plutarch in the life of Otho; and by Tacitus, who speaking of the Captives taken at Cremona, saith, Irritam praedam militibus fecerat consensus Italiae; That it was agreed throughout all Italy, that no quarter should be given: whereby no booty came to the Souldiers by the sale of Prisoners. Moreover, whe∣ther the Prisoners taken should belong to the people, or to them that take them, must, by what hath been said of the spoil, be determined. For the Law of Nations hath in this case equalled the condition of men with goods: So Cajus the Lawyer, Those things that are taken from the Enemy are by the Law of Nations theirs that take them; so that even such as were free men are by this Law reduced into bondage.

VI. Whether such as are taken may fly.

Neither can I concur in Opinion with those Divines who hold, That Captives taken in an unjust War, or such as are born of them, are obliged in conscience not to make their escape, unless it be to their own Garrisons, for herein I believe they err; surely in this lies the difference, if they can fly and make it good to their own Garrisons, whilst the War lasts,* 1.11 by the Right of Postliminy they recover their liberty, and all things conse∣quent to it. Of M. Sergius Pliny reports, that being twice taken by Hanibal, he both times made his escape out of his chains. But in case they make their escape to others, or unto their own Country after the Peace made, being re-demanded they are to be deliver∣ed. But yet from hence it follows not, that the Captives themselves are bound in con∣science to return; for there are many Laws which bind only as to the outward judgement, which do not at all restrain the conscience; and such are these of War whereof we now discourse: neither is it much to the purpose to say, that the very nature of Dominion doth of it self induce such an obligation; because there being many kinds of Dominion, possible it is, that such there are as are of force only in humane judgement, and so long only as the coercive Power lasts, which is frequently seen in other kinds of Right. Such in some sort also is that Law that makes void some Testaments, because, forsooth, they want some formalities which the Civil Law requires; whereas the more probable Opini∣on is, that what is bequeathed by such a Testament, may with a good conscience be re∣tained,

so long (at least) as nothing appears to contradict it. And not much different is his Right, who hath according to the Civil Laws unfaithfully prescribed to anothers Estate; for by the judgment of those Laws, even this mans Title shall be defended, untill it be made void by another sentence of the same Law. And thus is that riddle of Ari∣stotles resolved, Is it not just (saith he) that every man should enjoy his own,* 1.12 but whatsoever the Judge hath according to his understanding decreed, is by Law confirmed (though in it self it be fa••se) therefore will the same thing be both just and unjust. But in this question of ours, there is no cause imaginable why the Nations should respect any other Right than that which is external, and meerly humane. For the Right of laying claim to a Captive, of forcing him, of binding him, and possessing what he hath, or can do, is of it self motive sufficient to perswade the Conquerours, that it is a greater advantage to them to keep them alive than to kill them. But in case this cannot move the Conquerours, surely, no obliga∣tion that can be laid upon the conscience can do it, which notwithstanding he may im∣pose, by requiring either his verbal or sacramental engagement, if he think it necessa∣ry: Yet if the Captive can make an escape, and carry with him some Goods,* 1.13 his Conscience can∣not be charged with theft, so as he carry away nothing but what was before his own. In such Laws as arise not out of natural equity, but are purposely made to avoid a greater mis∣chief, we must not rashly admit of such an interpretation, as makes that act to be sinfull, which is otherwise lawfull. Nihil interest quomodo captivus reversus est, utrum dimissus,* 1.14 an vi, aut fallacia potestatem hostium evaserit; It matters not much (saith Florentinus) which way a Captive gets loose from his enemy, whether he be freely dismist, or make his escape either by force or fallacy. Because the right of holding a man Captive is so a Right, that in an∣other sense, it is for the most part an injury; for which reason Paulus the Lawyer calls it, a Right as to some certain effects; but an injury as to the intrinsick nature of the thing it self. From whence this also appears, That a man being taken in an unjust War, and brought within the Power of the Enemy, cannot in his conscience be guilty of theft, though he do, as I said before, carry away with him somewhat that was his own; or though not his own, yet that is due unto him as the reward of his labour: If at least he have reserved any thing besides his sustenance, provided that he himself owe nothing un∣to either his Lord, or him from whom his Lord claims his Right unto him. Pertinent hereunto are those Testimonies of Irenaeus and Tertullian, concerning the departure of the Israelites out of Aegypt, and their carrying away their Goods with them;* 1.15 which fact Irenaeus seems to defend by the Law of Nature, as being but the recompence of so many years hard labour: for saith he, The Aegyptians were indebted unto the Hebrews, not only for their Goods, but for their lives. Tertullian also handling the same subject speakes thus, The Aegyptians demand of the Hebrews their vessels of Gold and Silver;* 1.16 the Hebrews on the other side alledge, That the Aegyptians owed them much more as due unto them for their long and hard service. Thus also Philo pleads for his own Countrey men,* 1.17 That they spoiled not the Aegyptians out of Covetousness, but first as the reward of their long labour, and then as a gentle mulct or punishment, far inferiour to their great oppression. Neither is it much to the purpose to say, that such an escape and taking away of Goods is usually severely punished, if the Prisoner be apprehended; because such, and far greater acts of injustice are usually done by men of Power against their Inferiours, Non quia aequa sunt, sed quia ipsis expedit; Not because they are just and equitable, but because they are for themselves ex∣pedient. Now whereas some Canons do prohibit any man from perswading any servant to forsake his Masters service: I answer,* 1.18 That in case such prohibition be referred to such Servants, as are deservedly punished with the loss of their Liberty, or have by some voluntary covenant or bargain made themselves servants, then it is just: but in case it be referred to such as are made slaves by the misfortune of an unjust War, or to such as are born of them; it only argues, that Christians ought to perswade Christians to Pati∣ence and Sufferance, rather than to such courses, which though lawfull, yet may give of∣fence unto others. In like manner, are those admonitions of the Apostles to Servants to be understood, unless we had rather say, that those admonitions seem only to perswade Servants to strict obedience whilst they do serve; which indeed is but consonant to Natu∣ral Equity, for their labour is but equivalent to their sustenance.

VII. Whether they may resist their Lords.

But whereas the same Divines hold, That a Captive ought not to resist his Lord in the execution of that external Power that he hath over him without injustice; therein I agree with them. But yet between those things which before I denied, and this that I here as∣sert, there is this manifest difference, That external Right which a Lord hath over his Slave, which consists not in a bare licence of doing what he pleaseth to him, but in the protection of the Laws for doing it, were altogether vain; if on the other side it were lawfull to resist it. For if it were lawfull for a Servant by force to resist his Lord or Ma∣ster, it would be lawfull for the same Servant to resist the Magistrate that defends his Ma∣ster, seeing that it is from the Law of Nations that that Magistrate ought to defend the Lord in that Right, and in the exercise of it. This Right therefore is like unto that

which we nave elsewhere granted unto the Supreme Magistrate in every City, whom forceably to resist is unlawfull, nay, impious. And therefore S^t Augustine unites these two Powers, saying, That Subjects should so bear with their Princes, and Servants with their Masters, that in the exercise of their patience they may preserve their temporal estates, and hope after eternal.

VIII. This not in force in all Na∣tions.

But this also we must observe, That even this Law of Nations as to Captives hath not at all times, nor amongst all Nations been received; though the Roman Lawyers are pleased so to understand it, taking perhaps the Customs of those Countries which were then most known to them, for the Universal Custom of all Nations. Among the Hebrews (who did at little mix their Customs with those of other Nations, as they did themselves in Mar∣riages) there were places of refuge for Slaves,* 1.19 namely, for such as became such by fate or misfortune, rather than by any fault of their own; whereupon seems to be grounded that priviledge which among the Francks is given unto Slaves, to proclaim themselves at Liberty,* 1.20 which is also now indulged, not only to such as are taken in the War, but to all other Slaves whatsoever.

IX. Nor now a∣mongst Chri∣stians, and what is intro∣duced in its stead.

But even among Christians it is universally agreed, That being at War amongst them∣selves, they that are taken Prisoners are not made Slaves so as to sell them, or to enforce them to servile offices, or to impose upon them such things as they usually do on Slaves: And there is good reason for it, for they either are, or at least should be better instructed in the Principles of Christian Charity, than not to abstain from the shedding the blood of those whom misfortune only hath made miserable, unless it be granted them, that they may be permitted to use a little less cruelty. It is a Custom generally received among Nations of the same Religion, That what Goods or Chattels soever are taken in War, are lawful prize; And for men taken in War, they neither make them Slaves, nor kill them in cold blood, as Gre∣goras testifies.* 1.21 Boërius also makes mention of this Custom, whereunto he adds, That it is observed in France, in England, and in Spain, That in case a Duke, a Baron, or an Earl be taken in War, they are not their Prisoners that take them, but the Prince's that main∣tains the War. And this at least (though but a small matter) hath Christian Religion brought to perfection,* 1.22 which Socrates attempted to have done among the Grecians but could not. The same Custom which Christians observe among themselves, do the Ma∣humetans likewise observe among themselves; yet notwithstanding even among Chri∣stians this custom still remains entire, That such as are taken in the Wars are kept in safe custody till their ransom be paid, which commonly is set as the Conquerour pleaseth, unless otherwise agreed before hand: which Right of keeping Prisoners is usually grant∣ed to those that take them, unless they be persons of honour, who are always kept and maintained at the charge of the Common-wealth, or of the Supreme Magistrate, accord∣ing to the Custom of Nations.

Notes

• * 1.1

  Videlib. 2. ch. 22. §. 11.
• * 1.2

  Book 2. ch. 5. §. 27.
• * 1.3

  Lib. 2.
• * 1.4

  Oppianus de pis∣catu l. 2.
• * 1.5

  1. Controv. 5.
• * 1.6

  Andr. Act 1. Scen. 1.
• * 1.7

  Libro omnem virum bonum liberum esse-
• * 1.8

  Lib. 6. cap. 9. 2.
• * 1.9

  See second Book, ch. 13. §. 26.
• * 1.10

  Lib. Hist. se∣cundo & tertio.
• * 1.11

  See Chap. 9^th of this Book §.. 5, 6.

  Plin. Nat. Hist. lib. 7. c. 28.
• * 1.12

  Lib. 2. de ca∣villat. c. 5.
• * 1.13

  Bemb. lib. 10.
• * 1.14

  ☜
• * 1.15

  See the second Book, seventh Chap. §. 2.
• * 1.16

  Lib. 2. Cont. Marcion.
• * 1.17

  Vita Mosis.
• * 1.18

  Synod. Gangr. See second Book, 5. chap. towards the end.
• * 1.19

  Deut. 23.15.
• * 1.20

  Bod. de rep. l. 1. c. 5.
• * 1.21

  Lib. 4.
• * 1.22

  Plat. de rep. lib. 5.