Right of postliminium. 134. The next chapter relates to the right of postliminium, one depending so much on the peculiar fictions of the Roman jurists, that it seems strange to discuss it as part of an universal law of nations at all. Nor does it properly belong to the rights of war, which are between belligerent parties. It is certainly consonant to natural justice, that a citizen returning from captivity should be fully restored to every privilege and all property that he had enjoyed at home. In modern Europe there is little to which the jus postliminii can even by analogy be applied. It has been determined, in courts of admiralty, that vessels recaptured after a short time do not revert to their owner. This chapter must be reckoned rather episodical.[420]
[420] C. 9.
Moral limitation of rights in war. 135. We have thus far looked only at the exterior right, accorded by the law of nations to all who wage regular hostilities in a just or unjust quarrel. This right is one of impunity alone, but before our own conscience, or the tribunal of moral approbation in mankind, many things hitherto spoken of as lawful must be condemned. In the first place, an unjust war renders all acts of force committed in its prosecution unjust, and binds the aggressor before God to reparation. Every one, general or soldier, is responsible in such cases for the wrong he has commanded or perpetrated. Nor can any one knowingly retain the property of another obtained by such a war, though he should come to the possession of it with good faith.[421] And as nothing can be done, consistently with moral justice in an unjust war, so, however legitimate our ground for hostilities may be, we are not at liberty to transgress the boundaries of equity and humanity. In this chapter, Grotius, after dilating with a charitable abundance of examples and authorities in favour of clemency in war, even towards those who have been most guilty in provoking it specially indicates women, old men, and children, as always to be spared, extending this also to all whose occupations are not military. Prisoners are not to be put to death, nor are towns to be refused terms of capitulation. He denies that the law of retaliation, or the necessity of striking terror, or the obstinate resistance of an enemy, dispense with the obligation of saving his life. Nothing but some personal crime can warrant the refusal of quarter or the death of a prisoner. Nor is it allowable to put hostages to death.[422]
[421] C. 10.
[422] C. 11.
Moderation required as to spoil. 136. All unnecessary devastation ought to be avoided, such as the destruction of trees, of houses, especially ornamental and public buildings, and of everything not serviceable in war, nor tending to prolong it, as pictures and statues. Temples and sepulchres are to be spared for the same or even stronger reasons. Though it is not the object of Grotius to lay down any political maxims, he cannot refrain in this place from pointing out several considerations of expediency, which should induce us to restrain the licence of arms within the limits of natural law.[423] There is no right by nature to more booty, strictly speaking, than is sufficient for our indemnity, wherein are included the expenses of the war. And the property of innocent persons, being subjects of our enemies, is only liable in failure of those who are primarily aggressors.[424]
[423] C. 12.
[424] C. 13.
And as to prisoners. 137. The persons of prisoners are only liable, in strict moral justice, so far as is required for satisfaction of our injury. The slavery into which they may be reduced ought not to extend farther than an obligation of perpetual servitude in return for maintenance. The power over slaves by the law of nature is far short of what the arbitrary law of nations permits, and does not give a right of exacting too severe labour, or of inflicting punishment beyond desert. The peculium, or private acquisitions of a slave by economy or donation, ought to be reckoned his property. Slaves, however, captured in a just war, though one in which they have had no concern, are not warranted in conscience to escape and recover their liberty. But the children of such slaves are not in servitude by the law of nature, except so far as they have been obliged to their master for subsistence in infancy. With respect to prisoners, the better course is to let them redeem themselves by a ransom, which ought to be moderate.[425]
[425] C. 14.