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she determine to do so, whatever she may think of the justice or iniquity of the war, she is bound to act towards each belligerent as if his conduct were right, and to remain neutral, and, as to all military assistance, impartial between them.
1180. Some writers start with the general proposition that the belligerent has a right to kill his enemy, and consequently regard every act short of universal murder as a concession and surrender, on his part, of the rights of war.
1181. The proposition is as untrue as it is barbarous. It has no foundation either in natural or international law. Were it true, it would justify the utmost atrocities of war; it would make the massacre of Ismail lawful, and sanction the slaughters of Zenghis Khan. It would establish them as in accord with the laws of nature, and in harmony with sentiments we should entertain. We ought not to shrink or to shudder at the names of Suwarrow and Zenghis, but to regard them as warriors exercising their natural rights.
1182. Can a man by making a quarrel acquire a right to kill? Can a nation by quarrelling acquire such a right? If it could arise on any conditions, it could arise only in favour of the injured. It would be dependent on the absolute justice of the war. A man has a right to destroy his assailant, but only when necessary for self-defence.
1183. The military right of destruction is to be exercised only by and against the military forces of the belligerents, except when either has transgressed the laws of war, and is subject to many qualifications, limited by the requisitions of necessity for martial objects, though not so strictly as the right of individual men.
1184. If practice created the law, immolation or slavery would be the legitimate destiny of every prisoner taken in battle. The laws of nature are unalterable ; they may not be ascertained or understood; they may not be respected or applied. They exist however, immutable, incontrovertible rules, which, as civilization advances, begin to be gradually known, more gradually appreciated, more slowly recognized, and still more tardily applied.
1185. The cruelties of war have however, until very lately, been to some extent mitigated, and its calamities in some degree alleviated by the recognition, and even the adoption, of some of the laws which ought to regulate its course.
1186. Some mitigating usages bave sprung from the danger of retaliation, some from a sentiment of humanity, some from a notion of chivalry, some from imitation, some from obedience to the precepts of jurists, some have been stipu. lated in treaties between nations bleeding from the barbarities of war,—all tending more or less to alleviate the miseries and diminish the cruelties which had formerly prevailed.
1187. The Roman, the Greek, and the Carthaginian had no clear notions of the humanities of war, nor had they much opportunity of learning them from the history of the Egyptian, the Assyrian, and the Jew. Christianity, in contravention of the doctrines it taught, by superadding religious to political animosities, exacerbated the ferocity of the educated and uneducated barbarians alike.
1188. The warriors of Scandinavian descent and the chieftains of the tribes of Islam were the first on a broad scale to display the chivalry and generosity of wars. The valour of the chilly North encountered the bravery of the arid wastes ; the seeds of a genuine heroism, sown in Palestine, grew up, and, transplanted to genial soils, have thriven under the culture of civilization, but not fast. Their fruits are still immature.
1189. It is at length understood that, although the ordinary treaties and conventions which affect only their own relative rights, contracts, and possessions, are annulled by the fact of a regular war, the belligerents are bound to observe towards each other the conventional stipulations addressed to the conduct of war, or to the relations to be maintained between them or their subjects during hostilities. Treaties add the force of absolute contract to such natural laws as they adopt, and constitute them positive ordinances between the contracting parties. Yet they depend for enforcement on national honour, and the dangerous consequences of the violation of national faith.
1190. The law is, that you may carry the war into the country of your enemy; you may bear down all opposition; you may take his villages; you may besiege, bombard, storm, and raze his fortresses ; you may blockade his ports ; you may trample down his armies ; you may burn his navy; you may execute his guerillas. It is said, but we cannot admit it, that there are cases in which, for terrible example, you may put his most valiant garrisons to the sword, and sack and pillage his resisting towns. There are limits to the havoc of war. You may not slaughter the unresisting population ; you may not enslave their persons; you may not confiscate their lands; you may not commit their bouses and farmsteads to useless conflagration, or waste their harvests, or desolate their fields, or destroy their property in the mere wantonness of destruction. You are not to enter your warriors in blood, like bull-dogs and sleuth-hounds, to incite them by the taste of carnage; you are not to let them loose to ravish and destroy.
1191. Think of retaliation ; the tide of battle may turn, your towns may be given to the flames, your wives and daughters to the despoiler, and your own realm may be made a scene of desolation; or, though you return crowned with victory and laden with spoil, your disbanded soldiers will not have forgotten their habits, they may practise their lessons at home. You have a place in the community of nations. Will you degenerate into a savage horde ?
and laden their habvlace in the horde
· 1192. Even your ancestors, who slew in hecatombs the prisoners whom they could neither liberate nor retain, dared not transgress the laws of nature, except under the priestly sanction and in sacrifice to their gods.
1193. The sublime moral axiom, the imperial law of nature and nations, and of every particular nation, of the land and of the sea, and even of the horrible congress of arms, is, that without consideration of interest, without contemplation of consequences, WHAT IS RIGHT MUST BE DONE. That virtue is its own reward, that honesty is the best policy, are ignoble and vulgar expressions of the same law, addressed to selfish considerations, yet conducive to the establishment of the axiom, though often, as well by nations as by individuals, not understood.
1194. COMMENCEMENT OF HOSTILITIES.- War has ceased to be proclaimed by a herald strutting forth with his tabard and trumpet. It has been announced by the tramp of an army, the broadsides of a navy, by skirmishes, by manifestoes, embargoes, reprisals and letters of marque, before it has been formally declared.
1195. EMBARGO.—The government of every nation is entitled to detain all ships in its ports about to sail with military means and munitions to a country in the attitude of war.
It has a right to detain for a reasonable time the people and property of the expectant enemy, as hostages and by way of security for the return of its own subjects from the land of the contemplated foe. But it is a right to be most cautiously and leniently put in force.
1196. The exercise of such right is in anticipation that the other country will violate a law of war, to which we shall have occasion to refer. Were those laws better understood, foreigners residing in each country, and merchants and others having their property there, would be relieved from the grievous anxiety, vexation, and loss often occasioned by this precautionary act.
1197. Governments in old time practised, and text-books treat as of right, the detention of the ships and goods of the supposed hostile country by way of conditional reprisal ; and it is said that although, if the disagreement terminated in peace, the arrested property was released, yet if war followed it became captured and liable to confiscation as from the time of the embargo. This doctrine cannot be admitted as accordant with the progress of reason; for as it is a breach of national faith to take the property brought into a
non fiaitheo te beste property buron of the country on the confidence of peace, it is a breach of the law of nations to make it the subject of prize. If a process of reprisal and confiscation can be sustained, it can only be to the extent necessary for making satisfaction to the subjects who have been injured by the confiscations of the foe. · 1198. REPRISALS are general or special : general, executed by the public armament; special, confided to private execution.
1199. GENERAL REPRISAL is a sort of backgammon, a little battle or skirmish, which may lead to an accommodation and obviate a general war. Entrusted to the officers of the nation, it might be executed against public property, the compensation might be levied with discretion, and the fear of further mischief may restore the peace.
1200. SPECIAL REPRISAL.—No one but the descendant of a Scandinavian would have thought of such a course. A. complains to his sovereign that a subject of a Castilian town has taken his ship or done him some such wrong to the amount of £520. 178. 6 d., and that he has been here and there among the seaports of Castile looking after the redress which he could not find, and that in the bootless quest he has expended another £200. Instead of communicating with the foreign government, or taking compensation with his public force, the sovereign of A. hands him a letter of marque, an authority and direction to arm and man a schooner, and to do battle on his own account, to seize the property of any subject or subjects of the Castilian cities, until he shall have levied his £520. 178. 6 d., the costs of his expedi