VIII. But the persons of natural-born subjects, who owe permanent allegiance to a hostile power may, according to the law of nations, be attacked, or seized, wherever they are found. For whenever, as it was said before, war is declared against any power, it is at the same time declared against all the subjects of that power. And the law of nations authorises us to attack an enemy in every place: An opinion supported by most legal authorities: thus Marcian says "that deserters may be killed in the same manner as enemies, wherever they are found." They may be lawfully killed there, or in their own country, in the enemy's country, in a country belonging to no one, or on the sea. But as to the unlawfulness of killing, or violently molesting them in a neutral territory, this protection does not result from any personal privileges of THEIR OWN, but from the rights of the SOVEREIGN of that country. For all civil societies had an undoubted right to establish it as a standing maxim that no violence should be offered to any person within their territories, nor any punishment inflicted but by due process of law. For where tribunals retain their authority in full vigour, to try the merits of every offence, and, after impartial inquiry, to acquit the innocent, or condemn the guilty, the power of the sword must be restrained from inflicting promiscuous death.
Livy mentions the circumstance of seven Carthaginian gallies riding at anchor in a port belonging to Syphax, who was then at peace with the Carthaginians and Romans. Scipio arrived at that time, with two gallies, which might have been attacked and sunk by the Carthaginians, before they could enter the port: a brisk wind rising carried them in, before the Carthaginians could weigh anchor; but out of respect to the king's authority they durst not attack the Romans in his harbour.
IX. But to return to the subject, which is, to decide how far the power of lawfully destroying an enemy, and all that belong to him, extends. An extent of which we may form some conception from the very circumstance, that even women and children are frequently subject to the calamities and disasters of war. There is no occasion to allege in this place, as an example, the conduct of the Hebrews, who slew the women and children of the Heshbonites, and who were commanded to execute vengeance upon the Canaanites, and upon all, who were involved in the same guilt. Those examples, where God MANIFESTLY interposes his commands, are not to be drawn into a precedent for authorising actions of the SAME kind on DIFFERENT occasions. For the supreme and disposing power of God can never properly be compared with that, which men are allowed to exercise over each other. The Psalmist's expression of the Babylonian children being dashed against the stones is a much stronger proof of the custom commonly prevailing among nations, in the use of victory, to which the language of Homer bears a close resemblance, where the poet says, that "in the cruel rage of war, even the bodies of infant-children were dashed against the ground." Thucydides relates, that when Mycalessus was captured by the Thracians, they put all, even women and children to the sword. Arrian relates the same of the Macedonians, when they took the city of Thebes. And Germanicus Caesar, according to the account of Tacitus, laid waste whole cantons of the Marsians, a people of Germany, with fire and sword, to which the historian adds, "without sparing either age or sex." The Jewish women and children too were exposed by Titus, to be torn to pieces by wild beasts at a public spectacle. Yet neither of those generals were thought deficient in humanity, so much had custom reconciled the minds of men to this barbarous usage. So that the massacre of the aged, like that of Priam by Pyrrhus, is no way surprising.
X. The right of putting prisoners of war to death, was so generally received a maxim, that the Roman Satirist has founded an adage upon it, and said, "that when you can sell a prisoner for a slave, it would be absurd to kill him." Words which imply the full power of doing so, if the captor thought proper. The commentators indeed assign the act of saving, as the derivation of the Latin word, servus, a slave. Thus Thucydides speaks of the prisoners taken at Epidamnus, and killed by the Corcyraeans, and Hannibal is reported to have massacred five thousand prisoners at once. Nor was this power limited by the law of nations to any particular time, though it was controuled by greater restrictions in some places, than in others.
XI. Besides many examples occur of suppliants, being killed. Both ancient poets and historians relate such actions, as ordinary practices, authorised by the laws of war. Augustin commends the Goths for sparing suppliants, who had fled to churches for refuge, and adds by way of comment, that "they deemed it unlawful to avail themselves of the power, which had usually been allowed by the laws of war."
Nor did those who offered to surrender always experience the lenity and mercy, which they sought thereby. Tacitus relates, that when the city of Uspes was invested, the besieged sent a deputation with offers of an immediate surrender, and of no less than ten thousand slaves, on condition that the free-born should remain unhurt. The terms were rejected—A proof that such a rejection was thought conformable to the rights of war.
XII. But even after an unconditional surrender, we find that those, who had capitulated were sometimes put to the sword. In this manner the princes of Pometia were treated by the Romans, the Samnites by Sylla, the Numidians and Vercingetorix by Caesar. It was almost a standing practice with the Romans to crown their triumphs with the death of an enemy's generals, whether made prisoners actually in the field, or by capitulation. Cicero notices this custom in his fifth speech against Verres. Livy may be consulted on this point in many parts of his history, particularly in the twenty-eighth book: and Tacitus also in the 12th book of his Annals. The latter writer, in the first book of his History, relates that Galba ordered every tenth man of those, whom he had, upon their earnest supplication, admitted to surrender, to be beheaded: and Caecina, after the capitulation of Aventicum, punished Julius Alpinus, one of the leading men, with death, as a chief promoter of the war, leaving the rest to the mercy or cruelty of Vitellius.
XIII. Historians sometimes account for this right of putting enemies to death, especially prisoners, or suppliants, either on the score of retaliation, or for obstinate resistance. These may sometimes be the real, but cannot be the JUSTIFIABLE motives of such proceedings. For the law of retaliation, strictly and properly so called, must be directly enforced upon the person of the delinquent himself. Whereas, in war, what is called retaliation frequently redounds to the ruin of those, who are no way implicated in the blame. The general consequences of war are thus described by Diodorus Siculus, "they could not be ignorant, says he, having learnt from experience, that all being involved in the common fortune of war, they are liable on both sides in defeat, to suffer the same calamities, which they themselves would have inflicted upon the conquered party."
But as the Neapolitans reply to Belisarius, in Procopius, no one can be thought deserving of punishment for a resolute adherence to the side on which he is engaged, especially when actuated by natural and just motives in his choice of that side. So far from incurring guilt by such a resolution, it is on the other hand more criminal for any one to desert his post: and so it was judged by the military laws of ancient Rome. Livy says, it was a capital offence, for which no fear of danger could be pleaded as an excuse. So that in the rigid application of this right, OWING TO ITS IMPORTANCE, every one is left to use his own discretion, and there may be times and circumstances, in which the law of nations will justify its full exertion.
XIV. The same right was exercised upon hostages also, not only upon those who had bound themselves, as it were, by convention, but even upon those, who had been delivered up by others. Two hundred and fifty hostages were once massacred by the Thessalians, and the Volsci Aurunci to the amount of three hundred by the Romans. It is to be observed that children were sometimes given, as hostages, which we find was done by the Parthians, and by Simon, who was one of the Maccabees. And in the times of Porsena it was usual to deliver women, as hostages: a practice, which, as Tacitus informs us, was followed by the Germans.