Chapter XIII: On Moderation in Making Captures in War

Effects belonging to the subjects of an enemy, and taken detained as a pledge or debt—Not to be taken by way of punishment for another’s offence—The debt or obligation, arising from a state of war, illustrated by examples—Forbearance in the exercise of such a right from principles of humanity.

I. THE CAPTURE of an enemy’s goods, even in JUST WAR, is not, in ALL CASES, perfectly justifiable, nor is the captor always exempt from the ties of restitution. For strictly speaking, according to the rules of pure justice, it is not lawful to seize or detain goods except to the exact amount of the debt which the enemy has incurred. Indeed goods may be detained beyond that, as a necessary pledge of security, but still upon the condition of being restored, as soon as the danger has ceased: RESTORED EITHER LITERALLY, OR BY SOME PROPER COMPENSATION BEING MADE.

Here then is a right of capture, which confers no right of property or acquisition. But when any thing may become due to us, either from a penalty or the non-performance of an engagement, in both cases a right to an enemy’s goods, if they can be taken, is acquired. By the latter kind of debt not only the effects of the debtor himself, but those, belonging to his subjects, may according to the principles introduced by the law of nations be taken as a security.

This right of the law of nations is very different from that established in impunity alone, or depending upon the external force of judicial authority. For as by our private consent the person with whom we contract acquires not only an external and legal right over our property, but an internal right, proceeding from conscience, so he acquires the same right by a kind of common consent, which virtually comprehends the consent of individuals, in which sense the law is called the common compact or covenant of the state.

And in transactions of this kind it is most likely that nations approving of such a rule, introduced a law, which might not only prevent greater evils, but also enable every one to attain his own right.

II. But in the other kind of debt arising from penalty, or punishment, it does not appear, that nations consented to the establishment of any such right over the effects of subjects. For binding the property of one man for the offence of another is a kind of odious act, and therefore ought not to be extended farther than the law appears to have actually decreed. Nor is the advantage derived from the latter, by any means equal to that attending the former kind of debt. For what is due to us from damage, or the non-performance of a treaty may be considered as a part of our effects, but it is not so with the obligation to punishment, which is purely of a personal nature, therefore no loss is incurred by relinquishing this right.

Nor is the argument in the least weakened by what was said before respecting the Athenian law. For there it was maintained that subjects were not bound to suffer, because the state was amenable to punishment, but in order to compel the state to do what she ought to do, in bringing the guilty to punishment: a debt arising from duty, and relating to obligations of the former kind, rather than to those of the latter. For there is a difference between being obliged to punish another and being one’s self amenable to punishment: tho’ the latter may frequently arise from the neglect of doing the former, but still there is the same distinction between them, as between cause and effect.

The goods of subjects can only be taken by way of reprisal in return for other goods taken by the enemy; but they can never be taken as a punishment for the neglect of bringing offenders to justice. The delinquents themselves, in the number of whom may be reckoned those, who have neglected to discharge their duty in this respect, must answer for such offences.

III. The goods of subjects may be taken, and a property acquired therein, not only in order to obtain payment of the ORIGINAL debt, which occasioned the war, but of OTHER debts also, to which the same war may have given birth. And in this sense the words of those are to be taken, who maintain, that captures in war are not a perfect compensation for the principal debt, but only used as a means to enforce satisfaction for the damages sustained from aggressions. Thus the Romans, in their dispute with Antiochus, as related by Livy, thought it but right for that king to make reparation for all the expenses incurred in the war, which he had occasioned. Indeed any terms, that may be justly imposed upon the conquered may justly be enforced by war.

IV. The right of seizing the goods of the innocent subject of an enemy seems to have been introduced, in order to compel the original aggressor, or debtor to grant redress for the injury he had done: and although his falling on the innocent may be no way repugnant to what is legally right, it is in some measure a departure from the principles of humanity. On the other hand, history, especially the Roman history, abounds in examples of humanity, where lands have been restored to a conquered enemy, upon condition of their belonging to the STATE, and becoming subject to the payment of a tribute.

Contents -BIBLIOGRAPHIC RECORD