CHAPTER VI.

OF THE RIGHTS OF BELLIGERENT NATIONS IN RELATION TO EACH OTHER.

THE end of war is to procure by force the justice which cannot otherwise be obtained; and the law of nations allows the means requisite to the end. The persons and property of the enemy may be attacked, and captured, or destroyed, when necessary to procure reparation or security. There is no limitation to the career of violence and destruction, if we follow the earlier writers on this subject, who have paid too much deference to the violent maxims and practices of the ancients, and the usages of the Gothic ages. They have considered a state of war as a dissolution of all moral ties, and a license for every kind of disorder and intemperate fierceness. An enemy was regarded as a criminal and an outlaw, who had forfeited all his rights, and whose life, liberty, and property, lay at the mercy of the conqueror. Every thing done against an enemy was held to be lawful. He might be destroyed, though unarmed and defenceless. Fraud might be employed as well as force, and force without any regard to the means'. But these barbarous rights of war have been questioned, and checked, in the progress of civilization. Public opinion, as it becomes enlightened and refined, condemns all cruelty, and all wanton destruction of life and property, as equally useless and injurious;

1 Grotius, Bk. I. ch. iv. and v. Puff. lib. II. ch. xvi. § 6. Bynk. Q. J. Pub. Bk. I. ch. i. ii. iii. Burlamaq. Part IV. ch. v.

Ancient rules of war

and controls the violence of war by the energy and severity of its reproaches'.

Grotius, even in opposition to many of his own authocondemned. rities, and under a due sense of the obligations of religion and humanity, placed bounds to the ravages of war, and mentioned that many things were not fit and commendable, though they might be strictly lawful; and that the law of nature forbade what the law of nations (meaning thereby the practice of nations) tolerated. He held that the law of nations prohibited the use of poisoned arms, or the employment of assassins, or violence to women, or to the dead, or making slaves of prisoners; and the moderation which he inculcated had a visible influence upon the sentiments and manners of Europe. Under the sanction of his great authority, men began to entertain more enlarged views of national policy, and to consider a mild and temperate exercise of the rights of war, to be dictated by an enlightened self-interest, as well as by the precepts of Christianity. And, though some subsequent writers, as Bynkershoek and Wolfius, contended for the restoration to war of all its horrors, by allowing the use of poison, and other illicit arms, yet such rules became abhorrent to the cultivated reason and growing humanity of the Christian nations. Montesquieu insisted that the laws of war gave no other power over a captive than to keep him safely, and that all unnecessary rigour was condemned by the reason and conscience of mankind. Rutherforth has spoken to the same effect, and Martens enumerates several modes of war, and species of arms, as being now held unlawful by the laws of war. Vattel has entered largely into the subject, arguing with great strength of reason and

4

1 De Hautefeuille, Droits et Devoirs des Nations Neutres, T. I. tit. III. § 1, and Heffter, Droit International, § 125.

2 Bk. III. ch. iv. v. vii.

4 Inst. Bk. II. ch. ix.

3 Esprit des Loix, Bk. xv. ch. ii.

Summary, Bk. VIII. ch. iii. § 3 (translation by William Cobbett, 1802;) and see also the last edition of Martens' Droit des Gens, by Vergé, T. II. SS 273, 274, with Pinheiro Fereira's notes.

6 Bk. III. ch. viii.

eloquence, against all unnecessary cruelty, or base revenge, and all mean and perfidious warfare; he recommends his benevolent doctrines by the precepts of exalted ethics and sound policy, and by illustrations drawn from some of the most pathetic and illustrious examples'.

land.

There is a marked difference in the rights of war car- Plunder on ried on by land and at sea. The object of a maritime war is the destruction of the enemy's commerce and navigation, in order to weaken or destroy the foundations of his naval power. The capture or destruction of private property is essential to that end, and it is allowed in maritime wars by the law and practice of nations. But there are great limitations imposed upon the operations of war by land, though depredations upon private property, and despoiling and plundering the enemy's territory are still too prevalent a practice, especially when the war is assisted by irregulars. Such conduct has been condemned in all ages by the wise and virtuous, and it is usually severely punished by those commanders of disciplined troops who have studied war as a science, and are animated by a sense of duty, or the love of fame. We may infer the opinion of Xenophon on this subject (and he was a warrior as well

[1 In an admirable Essay on the Growth and Usages of War, by Professor Montague Bernard, published in the Oxford Essays of 1856, the reader will find all that can be said in favour of the merciful and humane doctrines above eulogized, with a most complete sketch of the changes in the method of conducting war and the changes in sentiment and feeling with regard to the conduct of war, from the earliest well recorded period in the history of war down to the Russian war of 1854.

How far there has been an improvement in the customs and established laws of war since the peace of Westphalia, has been discussed by Mr Wheaton and Mr Nassau Win. Senior, with opposite opinions, the former in his History of the Law of Nations, p. 760, holding that an immense improvement has taken place, the latter, in No. 146 of the Edinburgh Review (Vol. LXXII.) contesting that view.]

[ For an elaborate examination of the difference between war by land and war by sea, the reader is referred to De Hautefeuille, Droits et Devoirs des Nations Neutres, T. 1. Tit. iii. Sect. III. § 1.]

[3 The Johanna Emilie, 1 Spink, 14; and see also Tudor's Leading Cases in Mercantile Law, p. 804.]

as a philosopher), when he states, in the Cyropædia', that Cyrus of Persia gave orders to his army, when marching upon the enemy's borders, not to disturb the cultivators of the soil; and there have been such ordinances in modern times for the protection of innocent and pacific pursuits2.

1 Lib. V.

2 Emerigon Des Ass. ch. iv. § 9. and ch. xii. § 19 (Meredith's translation, pp. 105 and 364), refers to ordinances of France and Holland, in favour of protection to fishermen; and to the like effect was the order of the British government in 1810, for abstaining from hostilities against the inhabitants of the Feroe islands and Iceland. General Brune stated to the Duke of York, in October, 1799, when an armistice in Holland was negotiating, that if the latter should cause the dikes to be destroyed, and the country to be inundated, when not useful to his own army, or detri mental to the enemy's, it would be contrary to the laws of war, and must draw upon him the reprobation of all Europe, and of his own nation. Nay, even the obstinate defence of a town, if it partake of the character of a mercantile place, rather than a fortress of strength, has been alleged to be contrary to the laws of war. (See the correspondence between General Laudohn and the Governor of Breslau, in 1760. Dodsley's Ann Reg. 1760.) So, the destruction of the forts and warlike stores of the besieged in the post of Almeida, by the French commander, when he abandoned it with his garrison by night in 1811, is declared by General Sarrazin, in his history of the Peninsular war, to have been an act of wantonness which justly placed him without the pale of civilized warfare. [In his account of the evacuation of Almeida, General William Napier so far from denouncing General Brennier's act, as wanton and uncivilized, speaks of the whole affair as one that reflected credit upon the strategical skill and the military reputation of that officer, the result of whose successful evacuation was a junction of the garrison with Marmont, provoking a strong remonstrance from the British Commander, Lord Wellington, in a general order to the army. Napier's History of the Peninsular War, Vol. III. pp. 520-522. A perusal of the general orders of the Duke of Wellington, when in command of the armies in Spain, will show how war may be conducted vigorously and effectively, and yet with the utmost regard for feelings of humanity. One instance out of many will suffice for special notice:-that instance is the order issued to the army under his command upon the memorable occasion of crossing the frontiers of France and carrying the war into the enemy's country (9th July 1813): "The officers and soldiers must recollect that their nations are at war with France solely because the ruler of the French nation will not allow them to be at peace....They must not forget that the worst of the evils suffered by the enemy in his profligate invasion of Spain and Portugal have been occasioned by the irregularities of the soldiers and their cruelties authorized and encouraged by their chiefs towards the unfortunate and peaceful inhabitants of the country." (See The

Vattel condemns very strongly the spoliations of a country without palpable necessity, and speaks with a just indignation of the burning of the Palatinate by Turenne, under the cruel instructions of Louvois, the war minister of Louis XIV. The general usage now is not to touch private property upon land, without making compensation, unless in special cases dictated by the necessary operations of war, or when captured in places carried by storm, and which repelled all the overtures for a capitulation. Contributions are sometimes levied upon a conquered country, in lieu of confiscation of property, and as some indemnity for the expenses of maintaining order, and affording protection. If the conqueror goes beyond these limits wantonly, or when it is not clearly indispensable to the just purposes of war, and seizes private

Dispatches of the Duke of Wellington, Vol. XI. p. 169.)] When a Russian army under the command of Count Diebitsch had penetrated through the passes of the Balkan to the plains of Romelia, in the summer of 1829, the Russian commander gave a bright example of the mitigated rules of modern warfare, for he assured the Mussulmen that they should be entirely safe in their persons and property, and in the exercise of their religion; and that the Mussulman authorities in the cities, towns and villages might continue in the exercise of their civil administration for the protection of person and property. The inhabitants were required to give up their arms, as a deposit, to be restored on the return of peace, and in every other respect they were to enjoy their property and pacific pursuits as formerly. This protection and full security to the persons and property of the peaceable inhabitants of conquered towns and provinces, is according to the doctrine and declared practice of modern civilized nations. (See Dodsley's Ann. Reg. 1772, p. 37). [An admirable testimony to the discipline of European armies, and to the progress of civilization and humanity in the conduct of war, as evinced by the appearance of the country traversed by the French and Austrian armies in 1859, during the Italian campaign, is rendered by Mr W. B. Lawrence in a note (190) to Wheaton's Elements, p. 625, ed. 1863.]

1 Vattel, Bk. III. ch. ix. § 167.

2 See Phillimore's International Law, Vol. III. p. 135. Twiss, on the Law of Nations, Vol. 1. p. 118. Halleck, on International Law, ch. xix. § 12, p. 456. Wheaton's Elements, Vol. 11. Part IV. ch. ii. § 5, pp. 596, 597, ed. 1863, by W. B. Lawrence. Hautefeuille, Des Nations Neutres, T. II. tit. vii. ch. i. p. 176. Heffter, Droit International, § 133.

3 Vattel, Bk. III. ch. ix. § 165. Halleck on International Law, ch. xix. 15-18. Heffter, Dr. Int. §§ 135, 136.