Declarations of war. 130. A regular war, by the law of nations, can only be waged between political communities. Wherever there is a semblance of civil justice and fixed law, such a community exists however violent may be its actions. But a body of pirates or robbers are not one. Absolute independence, however, is not required for the right of war. A formal declaration of war, though not necessary by the law of nature, has been rendered such by the usage of civilized nations. But it is required, even by the former, that we should demand reparation for an injury, before we seek redress by force. A declaration of war may be conditional or absolute; and it has been established as a ratification of regular hostilities, that they may not be confounded with the unwarranted acts of private men. No interval of time is required for their commencement after declaration.[414]
[414] C. 3.
Rights by law of nations over enemies. 131. All is lawful during war, in one sense of the word, which by the law and usage of nations is dispunishable. And this, in formal hostilities, is as much the right of one side as of the other. The subjects of our enemy, whether active on his side or not, become liable to these extreme rights of slaughter and pillage; but it seems that, according to the law of nations, strangers should be exempted from them, unless by remaining in the country they serve his cause. Women, children, and prisoners may be put to death; quarter or capitulation for life refused. On the other hand, if the law of nations is less strict in this respect than that of nature, it forbids some things which naturally might be allowable means of defence, as the poisoning an enemy, or the wells from which he is to drink. But the assassination of an enemy is not contrary to the law of nations, unless by means of traitors, and even this is held allowable against a rebel or robber, who are not protected by the rules of formal war. But the violation of women is contrary to the law of nations.[415] The rights of war with respect to enemies’ property are unlimited, without exception even of churches or sepulchral monuments, sparing always the bodies of the dead.[416]
[415] C. 4.
[416] C. 5.
132. By the law of nature, Grotius thinks that we acquire a property in as much of the spoil as is sufficient to indemnify us, and to punish the aggressor. But the law of nations carries this much farther, and gives an unlimited property in all that has been acquired by conquest, which mankind are bound to respect. This right commences as soon as the enemy has lost all chance of recovering his losses; which is in moveables, as soon as they are in a place within our sole power. The transfer of property in territories is not so speedy. The goods of neutrals are not thus transferred, when found in the cities or on board the vessels of an enemy. Whether the spoil belongs to the captors, or to their sovereign, is so disputed a question, that it can hardly be reckoned a part of that law of nations, or universal usage, with which Grotius is here concerned. He thinks, however, that what is taken in public enterprises appertains to the state; and that this has been the general practice of mankind. The civil laws of each people may modify this, and have frequently done so.[417]
[417] C. 6.
Prisoners become slaves. 133. Prisoners, by the law of nations, become slaves of the captor, and their posterity also. He may treat them as he pleases with impunity. This has been established by the custom of mankind, in order that the conqueror might be induced to spare the lives of the vanquished. Some theologians deny the slave, even when taken in an unjust war, the right of making his escape, from whom Grotius dissents. But he has not a right, in conscience, to resist the exercise of his master’s authority. This law of nations, as to the slavery of prisoners, as he admits, has not been universally received, and is now abolished in christian countries out of respect to religion.[418] But, strictly, as an individual may be reduced into slavery, so may a whole conquered people. It is of course at the discretion of the conqueror to remit a portion of his right, and to leave as much of their liberties and possessions untouched as he pleases.[419]
[418] C. 7.
[419] C. 8.