It is always justifiable to make the vanquished soldiers prisoners of war, and even those who are riot of the milita ry profession.
5. When the conqueror receives the conquered as pri soners of war, all violence between them is understood to have ceased. The ancient custom of making slaves of the conquered is no longer practised by the powers of Europe, except by way of retaliation towards Barbarians. Christian powers generally keep prisoners of war under a guard till they are ransonied or exchanged by cartel, or till the re-establishment of pe ice. Officers are often released on their parole of honour, by which they pro mise not to serve against the power who releases them, fur a certain time, or during the war; and to appear at an appointed place as often as they shall he duly summoned. Those who, regardless of their parole, take up arms while the convention is dbserved on the other side, are looked upon as infamous ; and if they again fall into the hands of the enemy, to whom they have given their parole, he is not by the laws of war obliged to give them quarter.
6. The conqueror has, strictly speakin,r., a right to make prisoners of war of all the subjects of the hostile state who may fall into his power, though they may have com mitted no violence against him ; and of course he has a right to remove them to at other count! y. But in modern usage, the conqueror generally carries his rights in this respect no further than to submit such subjects to his domi nation, to make them swear fealty to him, to exercise certain of sovereignty of er them, such as raising and guar tei mg troops among them, making them pay taxes, obey his laws, &c. and punishing as rebels those who attempt to betray him or shake off his yoke.
The intention with which a country or province is taken possession of generally determines the conqueror in the alterations he makes in the form of government, if he makes any at all. It is clear that the conqueror is lot obliged to preserve the constitution of a conquered country or pro vince, nor to leave the subjects in possession of the rights and privileges granted them by their former sovereign, unless he has made them a promise to that effect pre viously to their submission.
7. The conqueror has a right to seize on all the proper ty of the enemy that comes within his power : it matters not whe ther it he immoveable or moveable These seizures maybe made, first, In order to obtain what he demands as his due, or an equivalent ; second. To defray the ex penses of the war ; third, To force the enemy to an equita ble peace ; fourth, To deter him, or, by reducing his strength, hinder him from repeating in future the injuries which have been the cause of the war. And with this last object in view, a power at war has a right to destroy the property and possessions of the enemy, for the express purpose ol doing him mischief.
Toe modern laws of war, however, do not permit the destruction of any thing, except, frac, Such things as the enemy cannot be deprived of by any other means than those of destruction, and which it is at the same time ne cessary to deprive him of ; second, Such things as atter being taken cannot be kept, and which might if not des troyed strengthen the enemy ; third, Sucn things as can net be preset ved without injury to the military opera tions , to which we may add, juurth, Whatever is destroy ed by woy rut retaliation.
8. It is in battles that the laws of war ought to be ad hered to with the most scrupulous exactness, as well with regard to the arms made use ol, as to the treatment of tne yanquithed.
Tile victor, he who remains master of the field of bat tle, ought to take case of the wounded and bury the dead. It is against eery principle of the laws of war to refuse or neglect to do either.
It is, however, sometimes a question, who is master of the field ? and in such a case a truce is agreed on tor some days, during which period both sides bring in their own wounded and bury their own dead.
9 The taking of a fortress or fortified town is effected by surprise, by a blockade, or by a siege. In the two last cases, the place surrenders by capitulation, or is taken by assault, after being summoned in vain.