Where there are neither treaties nor laws touching these points, nations continue still to seize on all the property belonging to its enemy's subjects which is carried into its territories after the declaration of war. Sometimes, too, we see a state make seizures provisionally, till assurance is received that the state which has done the injury is ready to make reparation, or fulfil its obligations.
Whatever be the conduct observed towards the subjects of an enemy, his ambassadors or other public ministers are always obliged to quit the state as soon as a war breaks out ; but they are allowed to depart, and to remove their property, without the least molestation. The Turks are the only nation who violate this law.
1. The law of nations permits the use of all the means necessary to obtain the satisfaction sought by a lawful war. Circumstances alone, then, must determine on the means proper to be employed ; and therefore war gives a nation an unlimited right of exercising violence against its enemy. But the civilized powers of Europe, animated by a desire of diminishing the horrors of war, now acknowledge cer tain violences, which are as destructive to both parties, as contrary to sound policy, as unlawful, though not entirely forbidden by the rigour or the law of nations. Hence those customs which are at present called the laws of war.
These laws, which are sanctified by custom, and in some cases even by treaty, have been observed with greater punctuality since war has been carried on by means of re gular troops: nor does any civilized nation now think it self justifiable in departing from them, unless the enemy set the example ; or unless an urgent necessity, arising from extraordinary circumstances, admit of exceptions au thorised by reasons of war.
2. According to modern usage, every individual in a state is not allowed to tall upen the enemy, even after war has been declared against him. Soldiers, by the order of their commanders, and such other subjects as may obtain express permission for the purpose from their sovereign, may lamully exercise hostilities, and are looked upon by the enemy as lawful enemies ; but those, on the contrary, who, nut being so authorised take upan them to attack the enemy, are treated by him as banditti ; and even the state to which they belong ought to punish them as such.
If subjects confine themselves to a imple defence, it would appear that circumstances ought to determine whe ther, acting by the presumed order of their so%ereign, they ought to be treated as lawful enemies or hot. They are, however, generally treated with more rigour than those wno act by express authority.
3. Among the arms and other means of doing injury to an enemy, there are several, which custom has declared to be unlawful. Such are, among secret means. poison, assassination, &c. but not different sorts of stratagems. Among open means, cert..in arms, the use of %i hic:i is top cruel, ar,d which the subject of tne war does not render necessary.
4. From the moment we are at war, all those who be long to the hostile state become our , mies, and we have a right to act against them as such ; hut our right to woui.d or kill being founded on nce, or on the resistance opposed to us, we can with justice wound or take the life of none, except those who take an active part in the war. So that, first, Children, old men, women, and in general all those who cannot carry arms, are safe un der the protection of the law of nations, unless they have exercised violence against the enemy. Second, Retainers to the army, whose profession is not to kill, or directly injure the enemy, such as chaplains, surgeons, ke. ought not to be killed or wounded deliberately. Third, Soldiers, on the contrary, being looked upon as ever ready for de fence or attack, may at any time be wounded or killed ; unless when it is manifest that they have not the will or have lost the power to resist. When that is the case,— when wounded, surrounded, or when they lay down their arms and ask for quarter ; in short, from the moment they are reduced to a state in which it is impossible for them to exercise further violence against the conqueror, he is ob liged by the laws of war to spare their lives ; except, how ever,first, When sparing their lives would be inconsis tent with his own safety ; second In cas,:s where he has a right to exercise the tali°, or to make reprisals ; third, W i When the crime committed by those who full into his hands justifies the iaking of their lives.