CHAPTER 7: On the Right Over Prisoners of War.
By the law of nations, slavery the result of being taken in solemn war
— The same condition extends to the descendants of those taken — The
power over them — Even incorporeal things may be gained by the rights of
war — Reason of this — This right not prevalent to the same extent
among Christian powers of the present day — The substitute used in place
of this right.
I. BY THE law of nature, in its primaeval state; apart from human
institutions and customs, no men can be slaves: and it is in this sense that
legal writers maintain the opinion that slavery is repugnant to nature. Yet in
a former part of this treatise, it was shewn that there is nothing repugnant to
natural justice, in deriving the origin of servitude from human actions,
whether founded upon compact or crime.
But the law of nations now under consideration is of wider extent both in
its authority over persons, and its effects. For, as to persons, not only
those, who surrender their rights, or engage themselves to servitude, are
considered in the light of slaves, but all, who are taken prisoners in public
and solemn war, come under the same description from the time that they are
carried into the places, of which the enemy is master.
Nor is the commission of crime requisite to reduce them to this condition,
but the fate of all is alike, who are unfortunately taken within the
territories of an enemy, upon the breaking out of war.
II. and III. In ancient times, while slavery was permitted to
exist, the offspring, born during captivity or servitude, continued in the same
condition as the parents. The consequences of such rules were of wide extent;
there was no cruelty, which masters might not inflict upon their slaves; —
there was no service, the performance of which they might not compel; —
the power even of life and death was in their hands. However the Roman laws at
length set bounds to such wanton power, at least to the exercise of it within
the Roman territories.
Every thing too, found upon the prisoner's person, became a lawful prize to
the captor. For as Justinian observes, one who was entirely in the power of
another could have no property of his own.
IV. and V. Incorporeal rights, gained by the enemy, along with
the person so captured, cannot be considered in the light of primary and
original acquisitions. And there are some rights so purely personal in their
nature, that they cannot be lost even by captivity, nor the duties attached
thereto ever be relinquished. Of such a nature was the paternal right among the
Romans. For rights of this kind cannot exist but immediately with the person to
whom they originally belonged.
All these rights to prizes, which were introduced by the law of nations,
were intended as an inducement to captors to refrain from the cruel rigour of
putting prisoners to death; as they might hope to derive some advantage from
sparing and saving them. From hence Pomponius deduces the origin of the word,
SERVUS, or SLAVE, being one, who might have been put to death, but from motives
of interest or humanity had been saved.
VI. (being the IX. of the original.) It has long been a maxim,
universally received among the powers of Christendom, that prisoners of war
cannot be made slaves, so as to be sold, or compelled to the hardships and
labour attached to slavery. And they have with good reason embraced the latter
principle. As it would be inconsistent with every precept of the law of
charity, for men to refuse abondoning a cruel right, unless they might be
allowed to substitute another, of great, though somewhat inferior rigour, in
And this, as Gregoras informs us, became a traditionary principle among all
who professed one common religion; nor was it confined to those, who lived
under the authority of the Roman empire, but prevailed among the Thesalians the
Illyrians, the Triballians, and Bulgarians. Though such an abolition of
slavery, and mitigation of captivity may be considered as of trivial import,
yet they were effects produced by the introduction of the Christian religion,
especially upon recollection that Socrates tried, but without effect, to
prevail upon the Greeks to forbear making slaves of each other.
In this respect the Mahometans act towards each other in the same manner as
Christians do. Though it is still the practice among Christian powers to detain
prisoners of war, till their ransom be paid, the amount of which depends upon
the will of the Conqueror, unless it has been settled by express treaty. The
right of detaining such prisoners has sometimes been allowed to the
individuals, who took them, except where the prisoners were personages of
extraordinary rank, who were always considered as prisoners of war to the
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