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LECTURE V.

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 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 *90 equally useless and injurious; and it controls the violence of war by the energy and severity of its reproaches. Ancient Grotius, even in opposition to many of his own authorities, condemned, and under a due sense of the obligations of religion and humanity, placed bounds to the ravages of war, and mentioned

rules of war

■ Grotius, b. 3. c. 4 and 5. Puff. lib. 2. c. 16. sec. 6. Bynk. Q. J. Pub. b. 1. c. 1. 2, 3. Burlamaqui, part 4. c. 5.

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 na-
tions) tolerated. He held, that the law of nations prohibited
the use of poisoned arms, and the employment of assassins,
and violence to women, or to the dead, and making slaves of
prisoners. The moderation which he inculcated had a visi-
ble influence upon the sentiments and manners of Europe.
Under the sanction of his great authority, men began to en-
tertain more enlarged views of national policy, and to consi-
der a mild and temperate exercise of the rights of war, to be
dictated by an enlightened self-interest, as well as by the pre-
cepts of Christianity. And, notwithstanding some subsequent
writers, as Bynkershoeck and Wolfius, restored war to 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 in-
sisted that the laws of war gave no other power over a cap-
tive 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 Martensd enu-
merates several modes of war, and species of arms, as being
now held unlawful by the laws of war. Vattele has entered
largely into the subject, and he argues with great
strength *of reason and eloquence, against all unneces-
sary cruelty, all base revenge, and all mean and perfi-
dious 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 illus-
trious examples.

*92

land.

There is a marked difference in the right of war, carried on Plunder 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 and 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

a B. 3. c. 4, 5. 7.

Esprit des Loix, b. 15. c. 2.

• Inst. b. 2. c. 9.

VOL. I.

7

Summary, b. 8. c. 3. sec. 3.

• B. 3. c. 8.

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, 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

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protection of innocent and pacific pursuits. Vattel *92 condemns *very strongly the spoliation of a country without palpable necessity; and he speaks with a just

a Lib. 5.

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. So it is the practice of all civilized nations to consider vessels employed only for the purpose of discovery and science, as excluded from the operations of war. The American commissioners, (John Adams, Benjamin Franklin and Thomas Jefferson,) in 1784, submitted to the Prussian Minister a proposition to improve the laws of war, by a mutual stipulation not to molest non-combatants, as cultivators of the earth, fishermen, merchants and traders in unarmed ships, and artists and mechanics inhabiting and working in open towns. These restrictions on the rights of war were inserted in a treaty between the United States and Prussia, in 1785. (See post. p. 98.) 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 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 Sarazin, 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

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

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 Mussulmen 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, are 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.

Vattel, b. 2. c. 8. sec. 147.—c. 9. sec. 165. Scott's Life of Napoleon, vol. iii. 58. Contributions exacted from the inhabitants by the armies of an invader, without payment, is contrary to the ordinary usages of modern warfare, though the practice is not consistent. The campaigns of revolutionary France, and of Napoleon, in modern Europe, were melancholy exceptions, of the severest character. Upon the invasion of Mexico by the armies of the United States, in 1846, the American Secretary of War (Marcy) instructed General Taylor (September 22d, 1846,) to abstain from appropriating private property to the public uses, until purchased at a fair price, though, he said, that was in some respects going far beyond the common requirements of civilized warfare, and that an invading army had the unquestionable right to draw its supplies from the enemy without paying for them, and to require contributions for its support, and to make the enemy feel the weight of the war. He further observed, that upon the liberal principles of civilized warfare, either of three modes might be pursued in relation to obtaining supplies from the enemy; first, to purchase them on such terms as the inhabitants of the country might choose to exact; second, to pay a fair price, without regard to the enhanced value resulting from the presence of a foreign army; and, third, to require them as contributions, without paying or engaging to pay therefor: that the last mode was the ordinary one, and General Taylor was instructed to adopt it, if in that way he was satisfied he could get abundant supplies for his forces. The previous instructions in that campaign had been to abstain from appropriating private property to the public use without purchase, at a fair price; but the instructions had now, in the progress of the campaign, risen to a severe character. The principle of kindness and liberality towards the enemy seems to be of a flexible character, and to be

goes beyond these limits wantonly, or when it is not clearly indispensable to the just purposes of war, and seizes pri

war.

swayed by considerations of policy and circumstances. The President of the United States, (James K. Polk,) in his letter to the Secretary of the Treasury, of the 23d March, 1847, declared the right of the conqueror to levy contributions upon the enemy, in their seaports, towns or provinces, which may be in his military possession by conquest, and to apply the same to defray the expenses of the He further declared, that the conqueror possessed the right to establish a temporary military government over such seaports, towns or provinces, and to prescribe the terms of commerce with such places: that he might, in his discretion, exclude all trade, or impose terms upon it—such, for instance, as a prescribed rate of duties on tonnage and imports. The President of the United States, therefore, with a view to impose a burden on the enemy, and deprive him of the revenue to be derived from trade, and secure it to the United States, ordered that all the ports and places in Mexico, in the actual possession of the land and naval forces of the United States, by conquest, should be opened, while the military occupation continued, to the commerce of all neutral nations, as well as of the United States, in articles not contraband of war, upon the payment of a prescribed tariff of duties and tonnage, prepared under the instructions of the President, and by him adopted, and to be enforced by the military and naval commanders. All these rights of war undoubtedly belong to the conqueror or nation who holds foreign places and countries by conquest; but the exercise of those rights and powers, except those that temporarily arise from necessity, belong to that power in the government to which the prerogative of war is constitutionally confided. The President of the United States, in his official letter to the Secretary of the Navy, of March 31st, 1847, claimed and exercised, as being charged by the constitution with the prosecution of the war, this belligerent right to levy military contributions upon the enemy, and to collect and apply the same towards defraying the expenses of the war, and to open the Mexican ports for that purpose, on a footing favourable to neutral commerce. The whole execution of the commercial regulations was placed under the control of the military and naval forces, and, with the policy of blockading some, and opening other Mexican ports, to compel the whole commerce for the supply of Mexico to pass under the control of the American forces, subject to the contributions, exactions and duties to be imposed. (See President Polk's Letter of March 31, 1847, to the Secretary of the Navy, and his Letter of March 23d, 1847, to the Secretary of the Treasury, and the Letter of Mr. Walker, of the 30th March, 1847, to the President, containing a scale of duties to be collected, as a military contribution, in the ports of Mexico, and with a recommendation that the Mexican coastwise trade, and the interior trade, above ports of entry, be confined to American vessels, and that, in all other respects, the ports of Mexico in our possession be freely opened.) These fiscal and commercial regulations, issued and enforced at the mere pleasure of a President, would seem to press strongly upon the constitutional power of Congress to raise and support armies, to lay and collect taxes, duties and imports, and to regulate commerce with foreign nations, and to declare war, and make rules for the government and regulation of the land and naval forces, and concerning captures on land and water, and to define offences against the law of nations. Though the constitution vests the executive power in the President, and declares him to be Commander-in-Chief of the Army and Navy of the United

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