I. 1 E VEN 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 in that case, men were 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, What ye 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 con CC quered 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. I. 1 How the Slave's peculium is the Master's, how the Ser vant's. Is it lawful for Servants to escape? Are the Offspring of Servants bound to the Master, and how far? What is to be done when the Slavery of Captives is not the usage. N those places in which the captivity and servitude of men is same way as property; so that we may have such acquisitions, only so far as is permitted by the amount of a debt, either primary or subnascent; except there should be some peculiar delict, which equity allows to be punished by the loss of liberty. So far, therefore, and no further, has a belligerent right over captive enemies, and the power of a valid transfer of such right to others. 2 It will moreover be the duty of equity and goodness, to apply, here also, those distinctions which we noted before, with regard to killing enemies. Demosthenes praises Philip, because he did not make slaves of all who had been his enemies, but weighed their deserts. II. 1 But first, this is to be noted; that the right which arises from citizens being a sort of surety for the State, is by no means to be extended so widely as the right which arises ex delicto against those who are penal slaves. And thus, a certain Spartan said, that he was a captive, but not a slave. For if we rightly look at the matter, this general right against captives, is on a like footing with the right of a master over those who have sold themselves into slavery under the compulsion of want; abstracting the heavier part of their calamity, that they have come into that case, not by any special act of their own, but by the fault of the rulers. It is the bitterest lot, to be a captive by the laws of war, as Isocrates says. 2 This servitude, then, is the perpetual obligation of working for perpetual aliment. The definition of Chrysippus here exactly applies; A slave is a perpetual labourer for hire. And the Hebrew law plainly compares him who, under the compulsion of need, has sold himself, to a labourer for hire; and directs that, in redeeming him, his labour shall be reckoned in the same way, that the produce which has been gathered from land sold, is to be reckoned to the former owner. Deut XV. xviii. 3 There is a great difference between that which may be done with impunity towards a slave by the Law of Nations, and that which natural reason suffers to be done. We have before cited Seneca to this effect. So Philemon says, A slave does not cease to be a man. Seneca adds that Slaves are not only men, but fellow-lodgers, humble friends, fellow-servants: agreeing plainly with what St Paul says, Colos. iv. 1. And elsewhere, Eph. vi. 9, he directs masters to do good to their slaves, forbearing threatening, on the same ground, knowing that their Master also is in heaven, who does not regard such differences. In the Clementine Constitutions we have the same. So Clemens Alexandrinus bids us use our slaves as our other selves, since they are men no less than we; following the saying of the Hebrew wise men. III. The right of life and death over a slave, then, gives the master a domestic jurisdiction; which, however, is to be exercised with the same regard to conscience, as a public jurisdiction. So Seneca, as before; and again, he compares a slave to a subject, and says that, though by a different title, the same things only are lawful in the one case as in the other; which is especially true with regard to this right of taking away life, and what approaches to it. Our ancestors, says Seneca, regarded a house as a small republic: so Pliny. Cato the Censor, if any slave was supposed to have committed a capital offense, did not punish him, till he had been condemned by the judgment of his fellow-servants. See Job xxxi. 13, If I did despise the cause of my man-servant, &c. IV. And even with regard to smaller punishments, as stripes to servants, we must apply equity, and even clemency. The Hebrew law says, Deut. xv. 17, 45, 53, Thou shalt not oppress him nor rule him harshly, of their servants; which must now by analogy be extended to all servants. And on this Philo comments. So Seneca says, Is it not savage and foolish to treat servants worse than brute animals? &c. Hence by the Hebrew law, If a man smote out the eye or tooth of a servant, he obtained his liberty. Exod. xxi. 26. V. 1 There is, moreover, to be moderation and regard to the servant's health, in the work required of him. And this, among other things, is aimed at in the institution of the Hebrew Sabbath; that there may be a breathing time from labour. So Pliny, to Paulinus, speaks of their common kindness to their slaves; quoting Homer, who speaks of Priam being always kind as a father; and saying that he always recollects the Roman word Paterfamilias. 2 So Seneca judges of lessons contained in this word paterfamilias, and in the name for slaves, familiares. So Dio Prusæensis says that a good king will not like the term master, not only of freemen, but even of slaves. Ulysses, in Homer, says that the slaves who have been faithful, shall be as if they were brothers of Telemachus his |