CHAPTER II. THE RIGHTS OF WAR. 1145. HISTORY give us a glimpse of an ancient state of things in which the distinction of War and Peace had not been established for nations in general. The occupation of the Pirate, who plunders all whom he can overpower, was not less honourable than other occupations; and States granted to other States, or to particular persons, a protection from spoliation (àovía) as an exception to a general Rule. When peaceable relations were permanently established among the Greek States, this was still looked upon as the result of a Convention, which included them only. In Livy,* the Macedonian ambassadors say, "Cum barbaris eternum omnibus Græcis bellum est, eritque." A like state of things is indicated by the Latin word "hostis," which signified alike "a stranger" and "an enemy." The introduction of the term "perduellis," an enemy proprio nomine, indicated the establishment of a distinction between the two, though Cicero interprets the fact the opposite way; namely, that the open enemy was called a stranger as a gentler term, gentler term, "lenitate verbi tristitiam rei mitigante." 1146. It was an important step in International Law, to establish this distinction between War, and Piracy, the practice of general spoliation. And for this purpose, it is proper to give a definition of War. A definition which has been given, and which may serve as the basis of our remarks, is this, "Bellum est contentio publica, armata, justa.” It is necessary to attend to each of these three conWar is a public contest: it is the act of the ditions. *B. xxi., c. 29. State towards another State; not an act of or towards individuals. Hence, a contest with Pirates and Robbers, who are lawless individuals, is not a War; nor do the Rights of War belong to such persons. Again, War is an armed contest: for States, having no common superior who can decide their dispute, have no other ultimate authority to which they can appeal. On this account War has been termed "ultima ratio regum." But still, though the contest is an armed, it is a just, that is, a professedly just one. Though War is appealed to, because there is no other ultimate tribunal to which States can have recourse, it is appealed to for justice. It may easily happen between States, as between litigating individuals, that each has a just cause. Thus, when Attalus left his kingdom by testament to the Romans, the heir had the Right of legitimate, the Romans, the Right of testamentary succession. It is necessary that a State should have on its side some such asserted Right, in order that its War may be consistent with International Law. A State which should make war upon its neighbours, without asserting any claim of Right, professing only a desire of conquest, a hatred of its enemy, or a love of war for its own sake, would have no just claim to the Rights of War; and might most fitly be declared a Common Enemy, by all States which acknowledge the authority of International Law. Under the above conditions, States have a Right to make War, as we have already said (835). This Right may be unjustly, that is immorally, used; as individuals may use their Rights immorally, and may employ the forms of justice for unjust ends. 1147. War, so understood, is conceived as a state in which the hostile parties have mutual Rights and Obligations, notwithstanding the efforts they are making for each other's damage or destruction. The Rights of War, among the ancients, extended to the Right of enslaving or putting to death all who were taken prisoners in battle, and even all the inhabitants of a conquered country. Yet the same Laws of War condemned those conquerors who refused Sepulture to the dead bodies of their enemies; the same Laws required a reverence for the Heralds who acted as international envoys, and an exact fidelity in observing Truces and Treaties. Moralists have been blamed for saying that to enslave vanquished, and to kill captive enemies, is not contrary to the Natural Rights of War. Yet we see how natural such practices are, for they occur in all nations at the early periods of their jural career. The proper condemnation of these practices is, not that they are contrary to the Natural Rights of War, but that they are the Rights of War in a rude and savage condition of nations, and are condemned by International Law, when it has made any considerable progress in humanity. 1148. In ancient Greece and Rome, every citizen was considered as a soldier; but in modern times the combatant is distinguished from the noncombatant part of the nation, and there are different classes of Rights of War applicable to these differ ent classes of persons. 1149. The Rights of War, as they affect Combatants, are purified from much that was savage and cruel in their earlier form, by taking into account the general conception of War; that it is the use of the public Force of the State in order to enforce its asserted Right. The public Force, Armies, and Navies with their munitions, act so as to damage, defeat, and destroy the Armies and Navies of the enemy. Armies are defeated by destroying their organization; and hence, as soon as a man, or a body of men, by surrendering, has ceased to belong to the organization of the army, he is no longer an object of active hostility. He is a prisoner. The same is the case, when a ship, in a fleet, strikes her colours. In the seige and capture of a fortress, the amount of severity exercised upon the defenders of the place, depends upon the obstinacy of the strug. gle between them and the assailants. If the defence have been very obstinate, and the place is taken by storm, the practices of War, up to the most modern times, partake of the savage and cruel habits of the rudest nations. But though, on such occasions, unresisting men and helpless women may suffer death or violence in hot blood, the voice of all civilized nations condemns, as violators of the Rights of War, the soldiers who commit such deeds in cold blood. Sometimes severities are inflicted upon a captured garrison, professedly on account of a resistance too long protracted. In such cases, the severity may be considered as a punishment which the Laws of War entitle the victor to inflict, in return for damage and delay which the defenders have needlessly occasioned him, since their ultimate success was hopeless. The Romans spared the garrison of a place, if it surrendered before the battering-ram struck the walls. To put to the sword the garrison of a captured place, in order to strike terror into other places, and paralyze their resistance, is a course which has an aspect of savage cruelty; yet it is asserted to be conformable to the Laws of War; and has even been defended, as humane, because it tends to bring the War to an end. In like manner, the putting prisoners to death in the way of retaliation, or of punishment for violated faith, has a most cruel aspect; yet if this be not done, how is the cruelty, when commenced on one side, to be punished or stopped? and how can there be any value in the giving of Hostages for the performance of a treaty? That War has necessarily inhuman features, such as these, shows us how much the cause of humanity requires that the operation of War should be supereeded in all possible cases. 1150. The Laws of War which limit the modes of action of the combatants, flow from the conception of War,-that it is the Action of one State against another State, to enforce justice by its public force. The force used is to be public; hence assassins, poisoners, secret incendiaries, are prohibited. Damage done by such means, cannot be avowed by a State; and hence, cannot be a part of the conduct by which the State publicly seeks justice. Also, such damage cannot be used so as to make a State alter its conduct, and therefore cannot be used so as to obtain justice. But this view does not prohibit operations which are clandestine for a time, as an ambush, or a mine; for these are works of an army, and have the same results as other acts of warfare. 1151. Stratagems are frequently employed in warfare; and it may appear difficult to reconcile some of these with Good Faith; as when a general allows his enemy to get hold of letters, or informants, purposely contrived to deceive. But it is to be recollected, that the Rules of Good Faith apply only to those modes of communication with regard to which there is a Mutual Understanding. Soldiers are bound in Good Faith to respect a truce, a flag of truce, a demand of parley, or any other recognized mode of communication between combatants: for these proceedings are conformable to known Laws of War, and tend to the termination of hostilities. But when a general judges of his enemies' intentions by his motions, the information of neutral persons, intercepted letters, and the like,—he rests, not upon a mutual understanding, but upon his own sagacity and vigilance, in detecting the truth from the appearance. At the same time, the Laws of War allow him to visit, with the utmost severity, any person who intentionally misleads him by false intelligence. 1152. It appears, at first, an inconsistency in the Laws of War, that though they do not forbid a |