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1127. WE now approach the miserable and desolate region of war. The sunshine of peace still lingers upon the devoted countries, but black clouds are lowering, and throwing their shadows across them. Two mighty nations are gathering their strength. The hills are white with tents,
and glittering with the panoply of battle. The drum and ,
the clarion sound through their limits, calling the myriads to their standards. The roar of the engines, and the noise of the hammers, inform us that the arsenals are in fast and hurried employment. The ships are stealing by ones and by twos into the harbours, where hundreds are already assembled, or steering forth in squadrons suspiciously to unknown destinations. There is still menace, protest, asseyeration. The buccaneer captains are calculating their resources, arming their fast schooners, collecting their ruthless retainers, preparing for murder and rapine with commission or letter of marque, or without. The citizens and husbandmen of the angry countries, and the merchants of the peaceable nations, in groups and in councils, in amazement and pale consternation, inquire when havoc will begin? what are the rights of neutrals f what are the laws of war? how the bristling belligerents will accept them P and how even their version will be observed P what will be the limits of ravage, of carnage, and conflagration ? what the pretences for capture and plunder P whether their ships and cargoes will be confiscated, or whether they will only be sold to pay the costs of acquittal, and the expenses of detention ? 1128. What are the laws which are to insinuate themselves in whispers while the cannon are thundering around them 2–especially, what are those laws so far as they regard the wanderer upon the sea?
1129. There are whispers which affect the hearts of men, there are spectres which haunt their consciences even while they deal the thunderbolts of battle. Their vaunts, their manifestoes, their proclamations cover with a transparent veil their atrocities, even while they commit them. We must search the heart and the conscience for the dictates of reason, and not be guided by the acts which they perpetrate in passion. We must endeavour to mollify their ferocious sentiments, and make them amenable to the arbitration of nature, and teach them what reason has prescribed as the laws of war. 1130. We must consult history for its occurrences; we must consult the prize courts for events, and watch how partiality has quailed under a sensation of justice, and concealed itself in precedents and quotations. 1131. We cannot learn science from barbarians, or civilization from savage hordes. We can learn little from conquerors who set forth to ravage and subdue. We must not be content with the authority of legists, who, rejecting the worst, and selecting the least objectionable of violent precedents, have founded upon them improved and progressively improving systems; resting there, because their contemporaries were unprepared for further advance. 1132. The laws of nature, and among them the laws of nations, are not of the ordination of man, they are the prescriptions of the Great God; they are active principles, which, by methods beyond our comprehension, inscrutable to our intelligence, work their own course, and achieve their, to us unintelligible, designs. 1133. Because it has not been enunciated in thunders or written in letters of light, because there has been no Amphictyonic council to proclaim it, because the nations are not confederated to maintain its decrees, let not any state, in the pride of its power, believe that there is no avenger, that there is no chastisement for the violation of international law. The Avatar will assuredly come, and vengeance will be inevitably dealt by insulted Nature on those who transgress her law. Let him who dares to doubt it look around. Let those who invoke the horrors of servile insurrection expect a terrible retribution.
“He who holds no laws in awe,
1134. War, in his least terrible aspect, is an invader of the domains of nature; but we must allow the monster some prerogatives, that we may control, as we cannot enchain him. 1135. The human intellect and human sentiment are not adapted to Utopia; we must admit that the privileges which reason reluctantly concedes to war are not inconsistent with, and even that they are to be treated as within, the ambit of the laws of nature. But there are sanctuaries which war dare not violate; there are still Elean regions which it may not profane. 1136. THE LAws of war involve a fourfold consideration: —First, the law of nature; secondly, the rights as between the belligerents; thirdly, the law of nations as between the belligerent and the neutrals; and, fourthly, the policy of all or any of these parties. Policy will not justify the violation either of the law of nature or of the law of nations, or a transgression of the rights of the antagonist or neutral; but it authorizes a departure by a nation on its own part from its extreme assumptions against others, although it may operate to its advantage and to the detriment of the opponent. 1187. To illustrate these propositions:—First, there are trangressions against the law of nature which are not transgressions of international law; for instance, if one of the belligerents sell his prisoners of war as slaves, it is not a breach of the law of nations. Yet a nation sensitive on the subject would have at least as good a right, if it thought fit, to found a war upon the offence, as the belligerent had to commit it. A fourth nation could not have a better ground of complaint against the sensitive than against the offending nation. 1138. Again, a belligerent, deeming it for his advantage, commissions privateers for the ransacking of neutral vessels suspected of breaking blockade, or carrying contraband of war, or he treats innocent cargoes as contraband. This is a violation of the law of nations, and not merely such as to entitle a nation of peculiar sentiment to treat it as a cause of war, but it is such an infringement of international rights as to impose on all neutrals a duty, controlled only by the consideration of their own interests or danger, to concur in chastising the offender. 1139. Thirdly,–A belligerent excites a class of the subjects of its adversary to domestic treason, to pillage and massacre their masters and their families. This is an outrage on the rights of war, as well as a crime against the laws of nature. As an excess of belligerent rights only, irrespective of its moral atrocity, it not merely gives to neutral nations a right, as in the case of selling the captives, but it imposes on them an obligation, to make war upon the of. fender. For if such violations of the rights of the enemy are permitted to pass unpunished, it imbues war with a barbarism, a brutality and perfidiousness of character which may prove destructive in the future wars of other nations. All are interested in restraining the lapse of each into the savagery and demoralization which damage the interests of the great commonwealth, of which all the despotisms and monarchies, as well as republics, are members. 1140. These duties and obligations are not so imperative as to require the neutral nations to sacrifice the lives and properties of their own people, at least by premature interposition; they confer the right, with an imperfect obligation at a proper time and under convenient circumstances to enforce it. But it is a principle that no nation is bound, except by treaty, to involve itself in war against its own interests or inclination. 1141. The law of nations is founded on the principle of universal convenience and utility; it is that rule, the observance of which is most beneficial for all nations, and the peoples of all nations,—the weak equally with the strong. 1142. We must not be misled by the legists of any particular country, or the conduct of any particular country, although it be our own; nor may we assume that it has been justified in acting on what, in the pride of power, the spirit of revenge, the agonies of desperation, or the delirium of victory, it has dared to enunciate as international law. 1143. “The present public law of Europe” (says Sir W. Molesworth) “has derivedits origin from two distinct sources: partly from those abstract notions of what is right and just, which form what is termed the law of nature; partly from the usage and customs of nations in their intercourse with each other. It is evident that those rules of the present public law of Europe, which are based upon correct notions of what is right and just, cannot require amendment. Not so those rules of the present public law of Europe which have been founded on custom and usage, for the custom and usage of nations, especially with regard to war, have frequently been at variance with correct notions of what is right and just; and the jus belli, which has been chiefly founded upon custom and usage, has differed in different nations, and in different sets and families of nations. It has varied in the same nation at various periods of its history; it has changed with the change of the religion, manners, and institutions of a nation.”—Debate on Neutral Rights in the House of Commons, 4th July, 1854. Wheaton, 649. 1144. The law of nations, then, is that law which ought to prevail, not the practice which may happen to prevail, or it would ever vary according to the caprice of the nation which from time to time attained a predominating influence. 1145. To form a correct judgment as to the law which