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1168. But there are two preliminary questions—1, who are entitled to be treated as belligerents; 2, the justice of the war. 1169. BELLIGERENTs.-Every nation will determine whether it will allow itself to be ranked as a neutral with each or either of the combatants, or will disclaim all relations, and regard the conduct of either or both as the conduct of rebels or pirates. 1170. A state, which has already acknowledged a country as independent, is bound by its former decision until that country has been permanently subdued, or its government effectually overturned. Every independent state at war is entitled to be regarded as a belligerent. But it is the existing government, and not the titular sovereign, which is entitled to be so regarded. Otherwise a deposed sovereign might have lawfully commissioned privateers, or a neutral might be bound to deny the political existence of the most powerful state in the world. James II. attempted the first expedient after his utter expulsion from the realm; the English held the commissions null; yet the English required the Danes to regard as piratical the whole nation of France after the execution of the king; the Dane made a noble reply. 1171. A colony, a district, a state, being a member of a federation, is in arms against the mother-country, or the kingdom, or the rest of the league: is it to be regarded as belligerent, or are all its battalions and ships of war, in respect of their captures, to be executed as rebels guilty of robbery on land, or of piratical depredations on the sea? The decision must not be capricious, a puny rebellion may assume immense proportions, a colony may subdue the parent state. The decision may sometimes be deferred, but when the question arises whether the conduct of the commissioned ships is piratical, it can be no longer delayed; the people who commissioned them are entitled to treat an adverse decision as an act of war, and to resort to retaliation.
1172. The United States of America were prompt to recognize the revolted colonies of Spain, but the remnant of those states are wroth that Europe should recognize as a belligerent power a seceding confederation with 400,000 men in arms. 1173. It is difficult to measure the strength necessary to constitute a belligerent power; but as soon as to treat its soldiers as rebels, or its sailors as pirates, becomes dangerous, as soon as it becomes formidable, a people in arms is entitled to be recognized as a belligerent power. So long as a province or colony can, by its army or navy, hold the rest of a powerful nation at bay, so long as doubt hangs over the conflict, it is entitled to be regarded as a belligerent. 1174. The belligerent power, not yet treated as an independent nation, is to be regarded as a conditional state; so long as it is recognized as a belligerent, all the laws and intercourse of war and of commerce prevail between it and the neutrals who have made the recognition, as between independent nations. Its government, its civil and military officers, and its officers of revenue are regarded as lawful functionaries. Its armies are not rebels or guerillas, its commissioned war-ships are not privateers. Santissima Trinidad. 1175. We use “power” in connection with belligerent to comprise the expression in the Act of Congress as to enlistment, “any foreign prince or state, or any colony, district, or people,” with which the neutral may be at peace; and also to comprise the expression in the English Enlistment Act, “any foreign prince, state, or potentate, foreign colony, province, or part of any province or people, or any persons or person, exercising or assuming to exercise the powers of government, in any colony, province, or part of any province or country,”—so far as the United States or England have recognized them as belligerents. 1176. We may observe that a protected nation does not become a belligerent by reason of war between her protector
and another nation. (Ionian ships.) She is to be regarded as neutral until she has actually taken part, or is involved by the other belligerents, in the war. 1177. JUSTICE or THE WAR.—It is the object of each nation about to embark in a war to persuade all others of the justice of her quarrel, and to enlist their assistance, or at least their sympathies, on her side; but she reserves to herself the determination, and demands from all who remain neutral acquiescence in the alleged justice of her cause, and for the decision of this question there is no appointed tribunal, except that in some treaties there have been stipulations:—(1) For referring questions to arbitration; in others, (2) stipulations for limited neutral assistance, of which each of the bellicose parties is supposed to be aware; in others, (3) stipulations protecting certain countries by an absolute neutralization; and (4) in others, a guarantee of general or artial support in a just war. 1178. The first of these classes of stipulations depends for its observance on the faith of the nations in controversy. The second will have consideration under the head of confederation. The third will be discussed under that of neutralization. On the fourth, it may be sufficient to allude to the instance of the treaty of Paris, on the 30th of March, 1856, between England, Austria, France, Prussia, Russia, Sardinia, and the Sultan. By the eighth article of that treaty it is stipulated that, if there should arise between the Sultan and any one or more of the other parties to that treaty any misunderstanding which might endanger the maintenance of their relations, the Sultan, and each of those Powers, before having recourse to the use of force, shall afford the other contracting parties the opportunity of preventing such an extremity by means of their mediation. 1179. Each nation is, subject to its treaty stipulations, entitled to inquire into the justice of the actual or meditated hostilities, and their influence on her own interests and affairs, and to take part with either of the belligerents; but until 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 have 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 stipulated 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