CHAPTER 5: On the Right to Lay Waste an Enemy's Country, and Carry off his Effects.
An enemy's property may be wasted and plundered Things deemed sacred, how far exempted Stratagem, how far permitted.
I. CICERO, in the third book of his offices, has said that there is nothing repugnant to the LAW OF NATURE in spoiling the effects of an enemy, whom by the same law we are authorized to kill. Wherefore it is not surprising that the same things should be allowed by the LAW OF NATIONS. Polybius, for this reason, in the fifth book of his history, maintains, that the laws of war authorise the destruction of an enemy's forts, harbours, and fleets, the seizure of his men, or carrying off the produce of his country, and every thing of that description And we find from Livy that there are certain rights of war, by which an enemy must expect to suffer the calamities, which he is allowed to inflict, such as the burning of corn, the destruction of houses, and the plunder of men and cattle. Almost every page of history abounds in examples of entire cities being destroyed, walls levelled to the ground, and even whole countries wasted by fire and sword. Even in cases of surrender, towns have sometimes been destroyed, while the inhabitants were spared an example of which is given by Tacitus, in the taking of Artaxata by the Romans; the inhabitants opened their gates and were spared, but the town was devoted to the flames.
II. Nor does the law of nations, in itself, considered apart from other duties, which will be mentioned hereafter, make any exemption in favour of things deemed sacred. For when places are taken by an enemy, all things without exception, whether sacred or not, must fall a sacrifice. For which it is assigned as a reason, that things which are called sacred, are not actually excepted from all human uses, but are a kind of public property, called sacred indeed from the general purposes, to which they are more immediately devoted. And as a proof of this, it is usual, when one nation surrenders to another state or sovereign, to surrender, along with other rights, every thing of a sacred kind, as appears by the form cited from Livy in a former part of this treatise.
And therefore Ulpian says, that the public have a property in sacred things. Conformably to which Tacitus says, that "in the Italian towns all the temples, the images of the Gods, and every thing connected with religion belonged of right to the Roman people." For this reason a nation, as the Lawyers, Paulus and Venuleius openly maintain, may, under a change of circumstances, convert to secular uses things, that have before been consecrated: and an overruling necessity may justify the hand, which has formerly consecrated the object in employing it as one of the resources and instruments of war. A thing which Pericles once did under a pledge of making restitution: Mago did the same in Spain, and the Romans in the Mithridatic war. We read of the same actions done by Sylla, Pompey, Caesar, and others. Plutarch in his life of Tiberius Gracchus says that nothing is so sacred and inviolable, as divine offerings: yet no one can hinder these from being removed or applied to other purposes at the pleasure of the state. Thus Livy mentions the ornaments of the temples, which Marcellus brought from Syracuse to Rome, as acquisitions made by the right of war.
III. What has been said of sacred things and edifices applies also to another kind of solemn fabrics, and those are sepulchral structures, which may be considered not merely as repositories of the dead, but as monuments belonging to the living, whether families or states. For this reason Pomponius has said, that these, like all other sacred places, when taken by an enemy may lose their inviolability, and Paulus is of the same opinion, observing that we are not restrained by any religious scruple from using the sepulchres of an enemy: for the stones, taken from thence, may be applied to any other purpose. But this right does not authorise wanton insult, offered to the ashes of the dead. For that would be a violation of the solemn rights of burial, which, as it was shewn in a preceding part of this work, were introduced and established by the law of nations.
IV. Here it may be briefly observed, that, according the law of nations any thing, belonging to an enemy, may be taken not only by open force, but by stratagem, provided it be unaccompanied with treachery.
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