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LAW OF NATIONS
INDEPENDENT POLITICAL COMMUNITIES.
ON THE RIGHTS AND DUTIES OF NATIONS
IN TIME OF WAR.
SIR TRAVERS TWISS, D.C.L., F.R.S.
MEMBER OF THE INSTITUTE OF INTERNATIONAL LAW, AND ONE
OF HER MAJESTY'S COUNSEL.
WITH AN INTRODUCTORY JURIDICAL REVIEW OF THE RESULTS
AND OTHER DOCUMENTS.
AT THE CLARENDON PRESS.
LONGMANS, GREEN, AND CO.
[All rights reserved ]
TO THE FIRST EDITION.
THE Author has endeavoured, in treating of the Rights and Duties of Nations in time of War, to observe, as far as the subject would permit, the same method of investigation, which he has found eminently convenient in discussing the Rights and Duties of Nations in time of Peace. He has accordingly sought to ascertain under each head the leading Principles, which lie at the foundation of the Law, by an historical analysis of the Practice which has prevailed amongst Nations at various times, as the earlier Practice will be found in most instances to disclose some general Principle, based upon an absolute view of Belligerent Right, the application of which has become modified in modern Practice, either under the civilising influence of Commerce, or in deference to some conflicting Right of Neutrals.
If the process of this Modification be carefully traced, Commerce will be found to have exerted its civilising influence chiefly through the form of express Treaty-Engagements, concluded in time of Peace upon a deliberate view of the mutual interest of the contracting Parties; whilst the adjustment of Belligerent Right with the conflicting Right of Neutrals has been for the most part the result of a tacit agreement between the Neutral and the Belligerent, the acquiescence of the Neutral in each case being purchased by a concession from the Belligerent of no little importance to the general Peace of the World.
History, in its relation to the Rights of War, may truly be said to be Philosophy teaching by Example; and the wider and more complete the historical survey will have been, the more irresistible will be the conclusion, that the employment of Force on the part of Nations in the prosecution of Right against other Nations has become subject to Rules, which are in accordance with Reason, and have the Common Weal for their object.
The end of War, regarded as a High Trial of Right between Nations, is either to redress past injury, or to prevent future injury, and the mode, whereby Belligerent Force operates to accomplish one or other of these objects, is by taking security (pignoratio) from the wrong-doer; in other words, by the seizure of his property. Hence War implies necessarily a direct operation of Force against Property, whilst it entails only accidentally the employment of Force against the Persons of individuals, by reason of the resistance which they may offer to the process of taking security from the wrong-doer. A Declaration of War implies indeed, that a Nation intends to overcome by Force any resistance, which may be offered to it in exacting satisfaction; but whilst the seizure of the Property of the Enemy is a necessary means for procuring satisfaction, which no Belligerent can be expected to renounce, the measures to be adopted for overcoming resistance are susceptible of infinite modifications; and it is in respect of such modifications that the Civilisation of the nineteenth century is far in advance of that of the seventeenth and eighteenth centuries, and may be expected in its turn to be left behind by the Civilisation of future ages.
With regard to the Rights, which a state of War gives rise to between the Subjects of two Belligerent Powers, the greater mildness of modern manners, coupled with the instinct of Human Nature, which leads us to pity in others what we fear for ourselves, has insensibly operated to restrain the extreme exercise of those Rights, and wherever the employment of Belligerent Force in an extreme manner has fallen into desuetude, the revival of its exercise would justly be regarded as an innovation upon the modern Practice, and, as such, a
, breach of the Customary Law of Nations.
On the other hand, if we regard the Duties, which a state of War gives rise to between a
a Belligerent Power and the Subjects of a Neutral