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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.a 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;
a Grotius, b. 3. c. 4. and 5. Puff. lib. 2. c. 16. sec. 6. Bynk. Q J. Pub. b. 1. c. 1, 2, 3. Burlamaq. part 4. c. 5.
of war con
and it controls the violence of war by the energy and severity of its reproaches.
Grotius, even in opposition to many of his own authorities, 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 entertain more enlarged
great authority, men began to
a B. 3. c. 4, 5, 7.
c Inst. b. 2. c. 9.
d Summary, b. 8. c. 3. sec. 3. e B. S. c. 8.
perfidious warfare; and 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.
There is a marked difference in the rights of war carried 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, is 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 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 pursuits.
a Lib. 5.
b 1 Emerigon des Ass. 129, 130. 457. 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 detrimental 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
very strongly the spoliations of a country without palpable necessity; and he 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
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 beseiged 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. 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.)
a Vattel, b. 3. c. 9. sec. 167.
b Vallel, b. 2. c. 8. sec. 147.-c. 9. sec. 165.)