CHAPTER 7: On the Right Over Prisoners of War.



By the law of nations, slavery the result of being taken in solemn war — 

The same condition extends to the descendants of those taken — The power 

over them — Even incorporeal things may be gained by the rights of war — 

Reason of this — This right not prevalent to the same extent among 

Christian powers of the present day — The substitute used in place of this 

right.



I. BY THE law of nature, in its primaeval state; apart from human 

institutions and customs, no men can be slaves: and it is in this sense 

that legal writers maintain the opinion that slavery is repugnant to 

nature. Yet in a former part of this treatise, it was shewn that there is 

nothing repugnant to natural justice, in deriving the origin of servitude 

from human actions, whether founded upon compact or crime.



But the law of nations now under consideration is of wider extent both in 

its authority over persons, and its effects. For, as to persons, not only 

those, who surrender their rights, or engage themselves to servitude, are 

considered in the light of slaves, but all, who are taken prisoners in 

public and solemn war, come under the same description from the time that 

they are carried into the places, of which the enemy is master.



Nor is the commission of crime requisite to reduce them to this condition, 

but the fate of all is alike, who are unfortunately taken within the 

territories of an enemy, upon the breaking out of war.



II. and III. In ancient times, while slavery was permitted to exist, the 

offspring, born during captivity or servitude, continued in the same 

condition as the parents. The consequences of such rules were of wide 

extent; there was no cruelty, which masters might not inflict upon their 

slaves; — there was no service, the performance of which they might not 

compel; — the power even of life and death was in their hands. However the 

Roman laws at length set bounds to such wanton power, at least to the 

exercise of it within the Roman territories.



Every thing too, found upon the prisoner's person, became a lawful prize 

to the captor. For as Justinian observes, one who was entirely in the 

power of another could have no property of his own.



IV. and V. Incorporeal rights, gained by the enemy, along with the person 

so captured, cannot be considered in the light of primary and original 

acquisitions. And there are some rights so purely personal in their 

nature, that they cannot be lost even by captivity, nor the duties 

attached thereto ever be relinquished. Of such a nature was the paternal 

right among the Romans. For rights of this kind cannot exist but 

immediately with the person to whom they originally belonged.



All these rights to prizes, which were introduced by the law of nations, 

were intended as an inducement to captors to refrain from the cruel rigour 

of putting prisoners to death; as they might hope to derive some advantage 

from sparing and saving them. From hence Pomponius deduces the origin of 

the word, SERVUS, or SLAVE, being one, who might have been put to death, 

but from motives of interest or humanity had been saved.



VI. (being the IX. of the original.) It has long been a maxim, universally 

received among the powers of Christendom, that prisoners of war cannot be 

made slaves, so as to be sold, or compelled to the hardships and labour 

attached to slavery. And they have with good reason embraced the latter 

principle. As it would be inconsistent with every precept of the law of 

charity, for men to refuse abondoning a cruel right, unless they might be 

allowed to substitute another, of great, though somewhat inferior rigour, 

in its place.



And this, as Gregoras informs us, became a traditionary principle among 

all who professed one common religion; nor was it confined to those, who 

lived under the authority of the Roman empire, but prevailed among the 

Thesalians the Illyrians, the Triballians, and Bulgarians. Though such an 

abolition of slavery, and mitigation of captivity may be considered as of 

trivial import, yet they were effects produced by the introduction of the 

Christian religion, especially upon recollection that Socrates tried, but 

without effect, to prevail upon the Greeks to forbear making slaves of 

each other.



In this respect the Mahometans act towards each other in the same manner 

as Christians do. Though it is still the practice among Christian powers 

to detain prisoners of war, till their ransom be paid, the amount of which 

depends upon the will of the Conqueror, unless it has been settled by 

express treaty. The right of detaining such prisoners has sometimes been 

allowed to the individuals, who took them, except where the prisoners were 

personages of extraordinary rank, who were always considered as prisoners 

of war to the state.