CHAPTER II. 1. Rights of war against an enemy. RIGHTS OF WAR AS BETWEEN ENEMIES. In general it may be stated, that the rights of war, in respect to the enemy, are to be measured by the object of the war. Until that object is attained, the belligerent has, strictly speaking, a right to use every means necessary to accomplish the end for which he has taken up arms. We have already seen that the practice of the ancient world, and even the opinion of some modern writers on public law, made no distinction as to the means to be employed for this purpose. Even such institutional writers as Bynkershoek and Wolf, who lived in the most learned and not least civilized countries of Europe, at the commencement of the eighteenth century, assert the broad principle, that every thing done against an enemy is lawful; that he may be destroyed, though unarmed and defenceless; that fraud, and even poison, may be employed against him; and that an unlimited right is acquired by the victor to his person and property. Such, however, was not the sentiment and practice of enlightened Europe at the period when they wrote; since Grotius had long before inculcated milder and more humane principles, which Vattel subsequently enforced and illustrated, and which are adopted by the unanimous concurrence of all the public jurists of the present age.1 § 2. Limits of war The law of nature has not precisely determined how to the rights far an individual is allowed to make use of force, either against the to defend himself against an attempted injury, or to obtain reparation when refused by the aggressor, or to persons of an enemy. 1 Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 1. Grotius, de Jur. Bel. ac. Pac. lib. iii. cap. 4, §§ 5-7. iii. ch. 8. Wolfius, Jus. Gent. § 878. bring an offender to punishment. We can only collect from this law the general rule, that such use of force as is necessary for obtaining these ends is not forbidden. The same principle applies to the conduct of sovereign States, existing in a state of natural independence with respect to each other. No use of force is lawful, except so far as it is necessary. A belligerent has, therefore, no right to take away the lives of those subjects of the enemy whom he can subdue by any other means. Those who are actually in arms, and continue to resist, may be lawfully killed; but the inhabitants of the enemy's country who are not in arms, or who, being in arms, submit and surrender themselves, may not be slain, because their destruction is not necessary for obtaining the just ends of war. Those ends may be accomplished by making prisoners of those who are taken in arms, or compelling them to give security that they will not bear arms against the victor for a limited period, or during the continuance of the war. The killing of prisoners can only be justifiable in those extreme cases where resistance on their part, or on the part of others who come to their rescue, renders it impossible to keep them. Both reason and general opinion concur in showing, that nothing but the strongest necessity will justify such an act.1 prisoners of According to the law of war, as still practised by $3. Exsavage nations, prisoners taken in war are put to death. change of Among the more polished nations of antiquity, this war. practice gradually gave way to that of making slaves of them. For this, again, was substituted that of ransoming, which continued through the feudal wars of the middle age. The present usage of exchanging prisoners was not firmly established in Europe until some time in the course of the seventeenth century. Even now, this usage is not obligatory among nations who choose to insist upon a ransom for the prisoners taken by them, or to leave their own countrymen in the enemy's hands until the termination of the war. Cartels for the mutual exchange of prisoners of war are regulated by special convention between the belligerent States, according to their respective interests and views of policy. Sometimes prisoners of war are permitted, by 1 Rutherforth's Inst. b. ii. ch. 9, § 15. capitulation, to return to their own country, upon condition not to serve again during the war, or until duly exchanged; and officers are frequently released upon their parole, subject to the same condition. Good faith and humanity ought to preside over the execution of these compacts, which are designed to mitigate the evils of war, without defeating its legitimate purposes. By the modern usage of nations, commissaries are permitted to reside in the respective belligerent countries, to negotiate and carry into effect the arrangements necessary for this object. Breach of good faith in these transactions can be punished only by withholding from the party guilty of such violation the advantages stipulated by the cartel; or, in cases which may be supposed to warrant such a resort, by reprisals or vindictive retaliation.1 (a) 1 Grotius, de Jur. Bel. ac Pac. lib. iii. cap. 7, §§ 8, 9; cap. 11, §§ 9-13. Vattel, Droit des Gens, liv. iii. ch. 8, § 153. Robinson's Adm. Rep. vol. iii. Note, Appendix A. Correspondence between M. Otto, French Commissary of Prisoners in England, and the British Transport Board, 1801. Annual Register, vol. xliv. p. 265. (State Papers.) Wheaton's Hist. Law of Nations, pp. 162–164. (a) [The Dutch were in the habit of selling any prisoners they took from the Barbary powers as slaves to the Spaniards; and ordinances relating to this subject were made in 1661 and 1664. From the treaties between the Porte and Austria, in 1791, and the Porte and Russia, in 1792, it appears that Christian prisoners were used as domestic slaves in Turkey at that period; but, by recent treaties with the Porte, prisoners are exchanged as between Christian States, and stipulations to the same effect were also made in a treaty between the Porte and Persia, in 1823, and in one between Russia and Persia, in 1828. In the Treaty of 1787, between the United States and Morocco, it was provided that, in the event of a war between the parties, all prisoners should be exchanged, and not used as slaves, and that any balance of prisoners should be redeemed, at the rate of one hundred Mexican dollars per man. Manning's Commentaries on the Law of Nations, p. 162. A cartel of 12th March, 1780, between England and France, after regulating, in the 18th article, the number of privates to be exchanged against officers, by the 19th article stipulates the money price to be paid, in default of the necessary number of officers or men to effect an exchange. This ransom, in the case of a field-marshal of France or an English field-marshal or captain-general, was fixed at £60 sterling. Martens, Recueil de Traités, tom. iii. p. 361. It seems to have been deemed necessary even in the Treaty of Amiens, of 1802, between Great Britain and the French and Batavian republics, to stipulate that the prisoners, on both sides, should be restored without ransom, (seront restituês sans rançon.) Id. tom. ii. Supp. p. 565. A cartel for the exchange of prisoners, between the United States and Great Britain — such arrangements, made during war between belligerents, not being deemed treaties in the sense of the Constitution - was ratified by the American Secretary of State, May 14, § 4. Per from acts of All the members of the enemy State may lawfully be treated as enemies in a public war; but it does not sons exempt therefore follow, that all these enemies may be lawfully hostility. treated alike; though we may lawfully destroy some of them, it does not therefore follow, that we may lawfully destroy all. For the general rule, derived from the natural law, is still the same, that no use of force against an enemy is lawful, unless it is necessary to accomplish the purposes of war. The custom of civilized nations, founded upon this principle, has therefore exempted the persons of the sovereign and his family, the members of the civil government, women and children, cultivators of the earth, artisans, laborers, merchants, men of science and letters, and, generally, all other public or private individuals 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.1 § 5. Ene The application of the same principle has also limited and restrained the operations of war against the terri- my's protory and other property of the enemy. From the far subject perty, how to capture fiscation. moment one State is at war with another, it has, on and congeneral principles, a right to seize on all the enemy's property, of whatsoever kind and wheresoever found, and to appropriate the property thus taken to its own use, or to that of 1813. It provided for American agents at Halifax and other places, and for British agents in the United States; and stipulated not only for an exchange of prisoners of the same rank, but for equivalents in men, where they were of different ranks. National Advocate, May 26, 1813. The Act of March 1, 1817, ch. 29, extended by the Act of March 3, 1823, ch. 70, authorized the War Department to settle the accounts of any person, who may have redeemed and purchased from captivity any citizen of the United States, taken prisoner during the late war with Great Britain, provided that in no case a greater sum than $150 is allowed for the ransom of any one person. U. S. Statutes at Large, vol. iii. pp. 351-788. The prisoners, whose ransom was thus provided for, were such as fell into the hands of the Indian allies of Great Britain, and many of whom were retained in captivity long after the termination of the war. Niles's Register, vol. ii. p. 382.] 1 Rutherforth's Inst. b. ii. ch. 9, § 15. Vattel, Droit des Gens, liv. iii. ch. 8, §§ 145-147, 159. Klüber, Droit des Gens Moderne de l'Europe, Pt. II. tit. 2, sect. 2, ch. 1, §§ 245-247. the captors. By the ancient law of nations, even what were called res sacræ were not exempt from capture and confiscation. Cicero has conveyed this idea in his expressive metaphorical language, in the Fourth Oration against Verres, where he says that "Victory made all the sacred things of the Syracusans profane." But by the modern usage of nations, which has now acquired the force of law, temples of religion, public edifices devoted to civil purposes only, monuments of art, and repositories of science, are exempted from the general operations of war. Private property on land is also 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 the case of an absolute and unqualified conquest of the enemy's country. In ancient times, both the movable and immovable property of the vanquished passed to the conqueror. Such was the Roman law of war, often asserted with unrelenting severity; and such was the fate of the Roman provinces subdued by the northern barbarians, on the decline and fall of the western empire. A large portion, from one third to two thirds, of the lands belonging to the vanquished provincials, was confiscated and partitioned among their conquerors. The last example in Europe of such a conquest was that of England, by William of Normandy. Since that period, among the civilized nations of Christendom, conquest, even when confirmed by a treaty of peace, has been followed by no general or partial transmutation of landed property. The property 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. In other respects, private rights are unaffected by conquest.1 § 6. Ravaging the The exceptions to these general mitigations of the enemy's ter- extreme rights of war, considered as a contest of force, lawful when all grow out of the same original principle of natural ritory, 1 Vattel, Droit des Gens, liv. iii. ch. 9, § 13. Kluber, Droit des Gens Moderne de l'Europe, Pt. ii. tit. 2, sect. 2, ch. 1, §§ 250-253. Martens, Précis, &c., liv. viii. ch. iv. §§ 279-282. |