CHAPTER II.
SECTION I.
Actual War.—Its Effects.
[Sidenote: Objects of War.]
Vattel tells us
"The end of a just war is to avenge or prevent injury; that is to say, to obtain justice by force, when not obtainable by any other method; to compel an unjust adversary to repair an injury already done, or to give us securities against any wrong with which we are threatened by him. As soon therefore as we have declared war, we have a right to do against the enemy whatever we find necessary for the attainment of that end, for the purpose of bringing him to reason, and obtaining justice and security from him.
"The lawfulness of the end does not give us any thing further than barely the means necessary for the attainment of that end. Whatever we do beyond that, is reprobated by the law of nature—is faulty and condemnable at the tribunal of conscience. Hence it is that the right to such acts varies according to circumstance. What is just and perfectly innocent in one situation is not always so on other occasions. Right goes hand in hand with necessity and the exigency of the case, but never exceeds them."
Such are some of the arguments that Vattel puts forth with all the strength of reason and eloquence, against all unnecessary cruelty, and all mean and perfidious warfare.
There was no limit to the career of violence and destruction, justified by some of the earlier writers; they considered a state of war as a dissolution of all moral ties, and a licence for every disorder and fierceness: even such authors as Bynkershoek and Wolff, who lived in the most learned and not the least civilized nations of Europe, and were the contemporaries of that galaxy of talent that adorned the commencement of the eighteenth century, held that every thing done against an enemy was lawful. He might be destroyed, though unarmed, harmless, defenceless; fraud, even poison, might be used against him. A foe was a criminal and an outlaw, who had forfeited his rights, and whose life, liberty, and property, lay at the mercy of the victor.
But such was not the public opinion or practice of enlightened Europe at the time they wrote. Grotius had long before, even in opposition to his own authorities, but influenced by religion and humanity, mentioned that many things were not fit and commendable, though they might be strictly lawful. He held that the Law of Nations prohibited the use of poisoned arms, the employment of assassins, violence to women or the dead, or making slaves of prisoners. Montesquieu followed in the same humane spirit. He writes, that the civilians said,
"That the law of nations, to prevent prisoners being put to death, has allowed them to be made slaves…. The reasons of the civilians are all false. It is false, that killing in war is lawful, unless in case of absolute necessity; but when a man has made another his slave, he cannot be said to be under a necessity of taking away his life, since he actually did not take it away. War gives no other right over prisoners than to disable them from doing any further harm, by securing their persons. All nations concur in detesting the murdering of prisoners in cold blood."[79]
Thus, it is now the established Law of Nations, that necessity is the measure of violence in war, and humanity, its tempering spirit; or, as it has been otherwise enunciated, the rights of war are to be measured by the objects of the war.
Although we have a right to kill our enemies in war; it is only when we find gentler methods insufficient to conquer their resistance and bring them to terms, that we have a right to put them to death.[80]
Under the name of enemies are comprehended not only the first author of the war, but also those who join him and support his cause.
[Sidenote: Cartel]
Out of these enlightened views of war has sprung the System of Cartels for the exchange of prisoners. These exchanges are generally regulated by special convention between the hostile states. Prisoners are sometimes permitted to return home, upon condition not to serve again during the war, or until duly exchanged. Officers are frequently released upon their parole, on the same condition; and to carry more effectually into operation the arrangements necessary for these purposes, commissaries are permitted to reside in the respective hostile states.
Subject to the principle of non-resistance, there are several classes of persons that are generally considered exempt from the operations of war, beyond the effects of unavoidable accident. "All the members of the enemy's state," says Wheaton,
"may lawfully be treated as enemies, in a Public War; but it does not follow that all are to be treated alike; though we may lawfully destroy some of them, it does not follow that we may lawfully destroy all; for the general rule derived from the natural law is still the same, that no force against an enemy is lawful, unless it is necessary to accomplish the purposes of war. The custom of civilised nations founded on this principle, has therefore exempted the persons of the Sovran and his family, the members of the Civil Government, women and children, cultivators of the earth, artizans, labourers, merchants, men of science and letters, and generally all other public or private persons engaged in the ordinary civil pursuits of life, from the direct effect of military operations, unless actually taken in arms, or guilty of some misconduct in violation of the usages of war, by which they forfeit their immunity."[81]
The same principle of moderation towards that which is non-resisting limits and restrains the operations of war against the territory and other property of the enemy. There is a marked difference in the rights of war carried on by land and at sea, in modification of the general right to seize on all the enemy's property, and to appropriate that property to the captors.
[Sidenote: Objects of a Maritime War.]
The object of a Maritime War is the destruction of the enemy's commerce and navigation, in order to weaken and destroy the foundations of his naval power. The capture or destruction of private property is necessary to that end, and is allowed in maritime wars, by the practice and law of nations.
[Sidenote: Private Property on Land.]
But private property on land is exempt from confiscation, with the exception of such as may become booty in special cases, when taken from enemies in the field or in besieged towns, and of military contributions levied upon the inhabitants of the hostile territory. This exemption extends even to an absolute and unqualified conquest of an enemy's country. In ancient times, both real and personal property of the vanquished passed to the victors; but the last example of confiscation and partition among the conquerors in Europe, was that of England, by William of Normandy.
Unless in special cases, private property on land is not touched, without making compensation; though contributions are sometimes levied in lieu of a necessary confiscation, or for the expenses of maintaining and affording protection. In other respects private rights are unaffected by war.
[Sidenote: Government Property.]
The property, however, belonging to the Government of the vanquished nation, passes to the victorious state, which also takes the place of the former Sovereign, in respect to the eminent domain.[82]
[Sidenote: Limitations of the Right of making War.]
The right of making War, as we have shown in the first chapter of this book, solely belongs to the Sovran power. Subjects cannot, therefore, of themselves, take any step in the affair; nor are they allowed to commit any act of hostility without orders from their Sovran.
The Sovran's order which commands acts of hostility, is either general or particular. The declaration of war, which enjoins the subjects to attack the enemy's subjects, implies a general order. Generals, officers, soldiers, privateersmen, and partisans, being all. commissioned by the Sovran, make war by virtue of a particular order.
In declarations of war, the ancient form is still retained,[83] by which subjects in general are ordered, not only to break off all intercourse with, but also to attack the foe. Custom interprets this general order. It authorises, indeed, and even obliges every subject, of whatever rank, to secure the persons and things belonging to the enemy, when they fall into his hands; but it does not invite the subject to undertake any offensive expedition without a commission or particular order.[84]