Chapter 12

Moderation in Despoiling An Enemy's Country

July 29, 2022

Lawfulness of despoiling an enemy’s country—Forbearance of using this right, where things may be useful to ourselves, and out of an enemy’s power—Forbearance in the hopes of speedy conquest, or where things are not immediately necessary to support an enemy, and aid him in maintaining the war—Buildings for the purposes of religion not to be wantonly destroyed—Advantages of this moderation.

I. One of the three following cases is requisite to justify any one in destroying what BELONGS to another: there must be either such a necessity, as at the original institution of property might be supposed to form an exception, as if for instance any one should throw the sword of another into a river, to prevent a madman from using it to his destruction: still according to the true principles maintained in a former part of this work he will be bound to repair the loss:67 or there must be some debt, arising from the non-performance of an engagement, where the waste committed is considered as a satisfaction for that debt: or there must have been some aggressions, for which such destruction is only an adequate punishment.

Now, driving off some of our cattle, or burning a few of our houses, can never be pleaded as a sufficient and justifiable motive for laying waste the whole of an enemy’s kingdom. Polybius saw this in its proper light, observing, that vengeance in war should not be carried to its extreme, nor extend any further than was necessary to make an aggressor atone justly for his offence. And it is upon these motives, and within these limits alone, that punishment can be inflicted. But except where prompted to it by motives of great utility, it is folly, and worse than folly, wantonly to hurt another.

But upon duly and impartially weighing the matter, such acts are oftener regarded in an odious light, than considered as the dictates of prudent and necessary366 counsels. For the most urgent and justifiable motives are seldom of long continuance, and are often succeeded by weightier motives of a more humane description.

II. It may be possible, under some circumstances, to detain what belongs to an enemy so as to prevent his deriving advantage from it, in which case it would be an unnecessary and wanton act to destroy it. And to such circumstances the divine law has an eye, in ordering wild trees to be made use of for the construction of works in a siege, while fruit-trees, and every thing necessary for the support of man, ought, if possible, to be spared.

III. Where there is an expectation also of speedy victory and conquest, prudence will dictate to a general or commander of any kind the necessity of forbearing from all acts of destruction, by authorising and committing which he would only be injuring those possessions, that are likely to come into the hands of his own state or sovereign. Thus, as we are informed by Plutarch, when Philip had overrun Thessaly, destroying and plundering the whole country, Flaminius ordered his troops to march in a regular manner, as through a ceded country which had become their own.

IV. In the next place, it is unnecessary to destroy an enemy’s country, when he has other sources, from which he can draw his supplies, as for instance, the sea or any adjoining territory. Archidamus, in Thucydides, attempting to dissuade the Lacedaemonians from a war with the Athenians, asks them, what object they propose to themselves by such a war? he asks them if they suppose that Attica can easily be laid waste owing to the advantage, which their troops have in superiority and numbers? but, says he, they have other dominions to furnish them with supplies, and they can avail themselves also of maritime importations. So that under such circumstances, it is best to leave agriculture unmolested, even on the frontiers of each side: a practice lately followed in the wars of the low countries, where contributions were paid to both parties, in return for such protection.

V. There are some things of such a nature, as to contribute, no way, to the support and prolongation of war: things which reason itself requires to be spared even during the heat and continuance of war. Polybius calls it367 brutal rage and madness to destroy things, the destruction of which does not in the least tend to impair an enemy’s strength, nor to increase that of the destroyer: Such are Porticos, Temples, statues, and all other elegant works and monuments of art. Cicero commends Marcellus for sparing the public and private edifices of Syracuse, as if he had come with his army to protect THEM, rather than to take the place by storm.

VI. As this rule of moderation is observed towards other ornamental works of art, for the reasons before stated, there is still greater reason, why it should be obeyed in respect to things devoted to the purposes of religion. For although such things, or edifices, being the property of the state may, according to the law of nations, be with impunity demolished, yet as they contribute nothing to aggravate the calamities, or retard the successes of war, it is a mark of reverence to divine things to spare them, and all that is connected therewith: and more especially should this rule be adhered to among nations, worshipping the same God according to the same fundamental laws, although differing from each other by slight shades of variation in their rights and opinions. Thucydides says that it was a law among the Greeks of his time, in all their invasions of each other’s territories, to forbear touching the edifices of religion: and Livy likewise observes that, upon the destruction of Alba by the Romans, the temples of the Gods were spared.

VII. What has been said of the sacred edifices of religion applies also to monuments raised in honour of the dead, unnecessarily to disturb whose ashes in their repose bespeaks a total disregard to the laws and ties of our common humanity.

VIII. Although it does not fall within the province of this treatise to inquire into the utility of war in all its various branches, but only to regulate its practices by confining them within due and lawful bounds; yet it will not be improper to observe that rules and practices derive much of their merit from the utility, with which they are attended. So that one great quality, to recommend the moderation above alluded to, will be found in its preventing the enemy from being driven to those resources, which men never fail, at last, of finding in despair. It is a just remark made by some Theologians, that all Christian princes and rulers, who wish to be368 found SUCH in the sight of God as well as that of men, will deem it a duty to interpose their authority to prevent or to suppress all UNNECESSARY violence in the taking of towns: for acts of rigour can never be carried to an extreme without involving great numbers of the innocent in ruin. And practices of that kind, besides being no way conducive to the termination of war, are totally repugnant to every principle of Christianity and justice.

369 CHAPTER XIII. On Moderation in Making Captures in War.

Effects belonging to the subjects of an enemy, and taken detained as a pledge or debt—Not to be taken by way of punishment for another's offence—The debt or obligation, arising from a state of war, illustrated by examples—Forbearance in the exercise of such a right from principles of humanity.

I. The capture of an enemy’s goods, even in JUST WAR, is not, in ALL CASES, perfectly justifiable, nor is the captor always exempt from the ties of restitution. For strictly speaking, according to the rules of pure justice, it is not lawful to seize or detain goods except to the exact amount of the debt which the enemy has incurred. Indeed goods may be detained beyond that, as a necessary pledge of security, but still upon the condition of being restored, as soon as the danger has ceased: RESTORED EITHER LITERALLY, OR BY SOME PROPER COMPENSATION BEING MADE.

Here then is a right of capture, which confers no right of property or acquisition. But when any thing may become due to us, either from a penalty or the non-performance of an engagement, in both cases a right to an enemy’s goods, if they can be taken, is acquired. By the latter kind of debt not only the effects of the debtor himself, but those, belonging to his subjects, may according to the principles introduced by the law of nations be taken as a security.

This right of the law of nations is very different from that established in impunity alone, or depending upon the external force of judicial authority. For as by our private consent the person with whom we contract acquires not only an external and legal right over our property, but an internal right, proceeding from conscience, so he acquires the same right by a kind of common consent, which virtually comprehends the consent of individuals, in which sense the law is called the common compact or covenant of the state.

And in transactions of this kind it is most likely that nations approving of such a rule, introduced a law, which370 might not only prevent greater evils, but also enable every one to attain his own right.

II. But in the other kind of debt arising from penalty, or punishment, it does not appear, that nations consented to the establishment of any such right over the effects of subjects. For binding the property of one man for the offence of another is a kind of odious act, and therefore ought not to be extended farther than the law appears to have actually decreed. Nor is the advantage derived from the latter, by any means equal to that attending the former kind of debt. For what is due to us from damage, or the non-performance of a treaty may be considered as a part of our effects, but it is not so with the obligation to punishment, which is purely of a personal nature, therefore no loss is incurred by relinquishing this right.

Nor is the argument in the least weakened by what was said before68 respecting the Athenian law. For there it was maintained that subjects were not bound to suffer, because the state was amenable to punishment, but in order to compel the state to do what she ought to do, in bringing the guilty to punishment: a debt arising from duty, and relating to obligations of the former kind, rather than to those of the latter. For there is a difference between being obliged to punish another and being one’s self amenable to punishment: tho’ the latter may frequently arise from the neglect of doing the former, but still there is the same distinction between them, as between cause and effect.

The goods of subjects can only be taken by way of reprisal in return for other goods taken by the enemy; but they can never be taken as a punishment for the neglect of bringing offenders to justice. The delinquents themselves, in the number of whom may be reckoned those, who have neglected to discharge their duty in this respect, must answer for such offences.

III. The goods of subjects may be taken, and a property acquired therein, not only in order to obtain payment of the ORIGINAL debt, which occasioned the war, but of OTHER debts also, to which the same war may have given birth. And in this sense the words of those are to be taken, who maintain, that captures in war are not a perfect compensation for the principal debt, but only used as a means to enforce satisfaction for the371 damages sustained from aggressions. Thus the Romans, in their dispute with Antiochus, as related by Livy, thought it but right for that king to make reparation for all the expenses incurred in the war, which he had occasioned. Indeed any terms, that may be justly imposed upon the conquered may justly be enforced by war.

IV. The right of seizing the goods of the innocent subject of an enemy seems to have been introduced, in order to compel the original aggressor, or debtor to grant redress for the injury he had done: and although his falling on the innocent may be no way repugnant to what is legally right, it is in some measure a departure from the principles of humanity. On the other hand, history, especially the Roman history, abounds in examples of humanity, where lands have been restored to a conquered enemy, upon condition of their belonging to the STATE, and becoming subject to the payment of a tribute.