Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
(?-1899)
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Editor/Trans.
First Pub. Date
1881
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New York: Maynard, Merrill, and Co.
Pub. Date
1899
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Includes articles by Frédéric Bastiat, Gustave de Molinari, Henry George, J. B. Say, Francis A. Walker, and more.
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ENEMY

II.23.1

ENEMY.The ancient Romans had two words to express what we understand by the one word, enemy. They used the word hostis when speaking of a stranger, of a man belonging to a nation which formed no part of the Orbis Romanus. Inimicus was applied only to private hatreds, to enmities between citizen and citizen. Every stranger to the Roman universe was considered an enemy, hostis; and, added the legislation of Rome, may the authority of the laws be eternally against him. Wars, however, were preceded by solemn declarations, which show what persons become enemies in war. These were all individuals belonging to the nation against which war was declared, and even all persons to be met with on its territory.—"Quodque populus Romanus cum populo Hermundulo hominibusque Hermundulis bellum jussit ob eam rem ego populusque Romanus, etc." (Declaration of war from a lost work of Cincius, De Re Militari. Grotius.)

II.23.2

—Here is another declaration of war: "Philippo regi, Macedonibusque qui sub regno ejus essent." Thus war was declared not only against the nation and the king, but also against all the men of the nation and against all the subjects of the kingdom.

II.23.3

—We find the same principles of international law in Greece. Agesilaus spoke as follows, to a subject of the king of Persia: "While we were friends of your king, we acted also as friends in regard to all that belonged to him But now, O Pharnabazus, since we have become enemies, we act as enemies. Since then you wish to be considered as belonging to him. we have the right to injure him in your person." Yet morality sometimes asserted its rights. We meet with its happy influence in all ages and places. The very nations of antiquity, who admitted the right to kill all persons belonging to the nation of the enemy, wherever found, armed or not armed, able to defend themselves or not, allowed no attempts on the honor of wives and daughter—attempts which have thus been subjected, by way of an exception of which humanity may be proud, to the reprobation of the international law of all ages. "What brutality! O gods of Greece," exclaimed Diodorus Siculus; "so far as I can remember, the barbarians themselves did not approve such excesses!"

II.23.4

—We find at Rome a Torquatus transported to Corsica for having committed, in time of war, an attempt of this kind; and Chosro?s, a king of Persia, ordered a soldier to be crucified for the same crime. Hostages were not spared; to take their lives was considered right. Surrender was not sufficient to save life. The Romans were wont to put to death in their triumphs the enemy's chiefs, even although they had become prisoners by capitulation. The triumpher awaited at the capital the news of their execution.

II.23.5

—Were there no limits to the power of the victor over the person of the enemy? From the point of view of the laws of war there seem to have been but few restrictions. We have just called attention to the unanimous reprobation which was attached to certain acts, yet, in point of fact, women, though protected against violence in the beginning became captives, that is to say, the absolute property of a master. It was an admitted principle throughout all antiquity that the prisoner of war became a slave, and the very etymology of this work implied that the unhappy conquered being had been saved, preserved, when the laws of war authorized his destruction. This, according to the publicists of antiquity, was the origin of the word.

II.23.6

—To come down to Christian times. "If we keep before our eyes," says Montesquieu, "on the one hand the continual massacres of Greek and Roman chiefs and kings, and on the other the destruction of people and towns by Timur and Gengis Khan, who devastated Asia, we shall see that we owe to Christianity a certain political law in government and a certain international law in war, which humanity can not sufficiently acknowledge. It is this international law which brought it about that among us victory leaves to the vanquished life, liberty, laws, property." (Esprit des lois book xxiv., chap. iii) This international law did not prevail in a day. Christianity had to make many efforts during the centuries of strife and social transformation which constitute the middle ages, before it succeeded. "The influence of the church, which was so powerful in the middle ages, was not sufficient to stop the belligerents, and to prevent the violence and the cruelty of the acts to which they were addicted." (Vergé, Sur Martens, book viii.; Heffter, Droit International, 1855, p. 127)

II.23.7

—In the eleventh century, in England, at the time of its conquest by the Normans, nothing was respected, neither property nor person; men and women became the prey of the conqueror. The daughters of the noblest families passed into the hands of valets, who had become feudal lords by right of violence and rapine. The former lords were their serfs. Their property was almost entirely confiscated, and helped to establish those great aristocratic houses which to-day own the greater portion of the land in England. In the same century, in the wars between Philip Augustus and Richard Coeur de Lion, each blinded fifteen prisoners by way of reprisal, and sent them back in that state; in Palestine, Richard massacred 2,500 captives.

II.23.8

—Chivalry, that flower of Christianity, realized in and instant in practice the idea of generosity toward an enemy and of loyalty in combat. Ransom was introduced, and is still a boon to humanity. In 1179 Pope Alexander III., or rather the third council of Lateran, suppressed, by a decree, the enslavement and sale of prisoners. Finally, in 1315, appeared the maxim. "No slave in France." (Edicts of 1315, 1318 and 1553.)

II.23.9

—In the seventeenth century occurred the ravages of the Palatinate and the sacking of Magdeburg. However, ideas were progressing. There was always over all, dominating and judging events and actions, the evangelical law, the law of fraternity and humanity, which never permits tranquillity in evil doing.

II.23.10

—Who, to-day according to international law, are considered as enemies in case of declaration of war, and to what treatment are they subjected. A primary distinction and a great advance is this, that there are no enemies except those who take an active part in war, and then only during the progress of the struggle. Hence the following classes of persons should be spared: 1. children, women, old men, and in general all those who have not taken up arms or committed acts of hostility; 2. those who follow in the train of the army, but who are not intended to take part in hostilities, such as chaplains, doctors, surgeons, and vivandieres. To these custom has added quartermasters, drummers and fifers. As for officers and soldiers, "from the moment that they are to severely wounded or so surrounded by the enemy that they are no longer in a state to resist; or when they lay down their arms and ask quarter, the enemy is, as a rule, in duty bound to spare their lives. The only exceptions to this rule are: 1. in extraordinary cases when reasons of war forbid their being spared: 2, if it is necessary to use retaliation or reprisals, 3, if the vanquished is personally guilty of a capital crime, as, for example, of desertion, or if he has violated the laws of war. In all other cases we must consider as prisoners of war the soldiers who fall into the hands of the enemy; and in wars between nation and nation it would be a violation of faith and of the law of nature to put to death all prisoners of war." (Précis, book vii, chap. iv.) Hence there are no enemies except the combatants on both sides, and the quality of enemy, insofar as it authorizes to kill, vanishes the moment strife or resistance is no longer possible. Such is the positive, actual law of nations. It is for this reason that persons who take part in the struggle without making known from a distance their quality of enemy by wearing a uniform, are so severely treated.

II.23.11

—Are all means of destruction against the person of the enemy permitted? Martens states that "the civilized powers of Europe recognize it as absolutely contrary to the laws of war to make use of poison and assassination, or even to put a price upon the head of a legitimate enemy, the case of retaliation alone excepted. Custom and many treaties condemn any kind of arms or open violence which would unnecessarily increase the number of sufferers, (explosive balls, for instance).

II.23.12

—What are the laws of war in regard to the prisoner? "Just as little," says Martens (book viii., chap. iv.), "as natural law permits the killing of the legitimate enemy when he has been vanquished, does it authorize the reducing him to slavery. But it is right to force him to lay down his arms, and to detain him as a prisoner of war until the re-establishment of peace, unless it has been agreed to allow him to depart, wither immediately or at a fixed date. Officers are often released on their word of honor not to serve until they have been exchanged, or during a fixed period, or till peace is declared, and to repair to a given place when summoned to do so."

II.23.13

—Can the members of the nation at war, who are captured, be made prisoners or be considered as such? Evidently not, because, as has been stated, they are not enemies. Martens sums up international law at present as regards them in the following words: "It is contrary to the usages of civilized nations to deprive of their liberty the innocent subjects of the enemy, who have taken no part in hostilities, and to remove them against their will, but it is admissible to force them to give hostages, or to take such hostages by force, to serve as guarantees of an engagement or obligation." And again: "Those who are simply attached to the service of the army, and are not among the number of the combatants, are not received and treated as prisoners of war; on the contrary, it is the custom to send them back to the enemy."

II.23.14

—The taking by assault of towns and fortresses makes no change in the law. Life is due to the garrison. "But if there is no capitulation, and the place is taken by assault, the garrison has to surrender at discretion: then nothing can be asked but life."

II.23.15

—What is the treatment of prisoners of war? M. Verge thus deals with this question in his notes on our author: "Prisoners of war are deprived of their liberty in this sense, that they can not return to their own country, or take up arms again in the war then raging, but they are not subjected to violence or bad treatment, as long as they do not trouble the peace of the state. It is customary to allow officers a greater liberty than non-commissioned officers and soldiers. They are, in general, set at liberty on parol within the limits of a city, and provision is made for their maintenance. Non-commissioned officers and soldiers are placed under more direct surveillance, and their labor may be made to diminish the expense they occasion, but they can not be compelled to enter the army of the nation which made them prisoners." "The effects of captivity upon prisoners of war begin at the time of voluntary surrender, whether conditional or unconditional, and from the moment this surrender has been accepted by the promise of life being spared." "Captivity is terminated by a declaration of peace, by the voluntary submission accepted by the government which took the prisoners, by conditional or unconditional dismissal, or by ransom." (Notes sur Martens)

II.23.16

—What is the law as regards the property of the enemy? "Civilized nations have substituted for pillage and devastation the custom of exacting war contributions, wither in money or in kind under pain of military execution. The payment of these contributions should assure the preservation of property of all kinds, so that the enemy should then buy and pay for whatever he wishes delivered him thereafter, except the services he may demand from subjects, in their quality of temporary subjects." (Martens.) Respect for private property has to be established now only in naval warfare. This was almost effected in 1856, upon the initiative of the United States, which, almost a century ago, in 1785, sanctioned it in a treaty.

II.23.17

—Since the institution of regular armies war tends to become a simple duel between the armed belligerents. The consequence will be ever-increasing fair dealing between enemies. This latter appellation will pertain only to those who resist armed force; and it will not be applicable to these when defeated. Any outrage upon the property of the enemy, as well as an attack of any kind upon an unarmed person, women, children or old men, will still be regarded as a crime, will be subject to punishment, and will be checked, whether directed toward vanquished or victors. This will be the law of justice and civilization, until the word enemy itself shall disappear.

EMILE JAY.

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