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The opinion of Grotius.

mutilation, of various kinds, was resorted to to an extent that is hardly credible; and, so late as the battle of Agincourt, it was determined by the French to cut off the fingers of the right hand of every captured English archer. Amidst the general desolation of Europe, during the middle ages, the characters of many noble warriors stand out in bold relief, embodying those feelings of generosity, and honour, and heroism, which compose the ideal of knighthood: with these imagination rests; but truth conveys a sterner picture of the times, and extorts the admission, that the warfare of the middle ages was marked by unnecessary cruelty, and savage outrage, and unrelenting vengeance; and though knightly bearing affords occasional relief to the scene, yet these were the general characteristics of the warfare of that period of history. (1)

Grotius, as we have seen in a previous chapter, derived the Jus Gentium wholly from the practice of nations, and, living when such periods as we have just alluded to afforded the precedents from which he drew his rules, he allows great cruelty in the operations of warfare. The chapter in which he treats of the rights upon the person of the enemy, (2) is, I think, the most faulty in his work, and the one where the errors of his plan are made the most prominent indeed he himself appears to have seen that the conclusions to which he was led were such as to shew that the process must be erroneous; and he endeavours to supply a remedy, by a limitation of the term allowable, (licere), which he qualifies, by marking the difference between human impunity and moral responsibility; and saying, that many things are allowable, as far as human impunity goes, which are in themselves culpable:—but he

(1) See Ward's Inquiry into the Law of Nations before the age of Grotius, vol. 1. ch. vI.— IX. In the latter are abundant,

and very interesting illustrations of the above positions.

(2) De Jure, lib. III. c. Iv.

still applies the term Jus Gentium to the former of these divisions, including under it all that appeared permitted by the practice of nations, although avowedly forbidden by the Law of Nature. (1) Thus Grotius says, that it is not only allowable to kill all who bear arms, or are the subjects of a belligerent, but all who are within the enemy's territory; (2) and that the subjects of an enemy may be slain wherever they are met with, excepting on neutral territory; (3) and that this permission extends even to women, children, old men, captives, and those who have surrendered at discretion, who may all be massacred (4) according to the Jus Gentium. Well might Grotius observe, "jus gentium permittit multa, eo permittendi modo quem jam explicavimus, quæ jure naturæ sunt vetita." (5) But he does not enter upon the investigation of what restraint the Law of Nature should impose upon the usages of warfare practised in former ages, and merely states what was allowable in warfare according to the practices of nations. After an interval of several chapters, Grotius returns to the subject, and recommends moderation, in a chapter entitled "temperamentum circa jus interficiendi in bello justo;" and he here says, that no one can justly be slain unless as a just punishment, or because we cannot defend our life or property without such violence: (6) but he does not follow out this principle, but recommends a lenient treatment to be pursued, from considerations of charity, of moderation, and magnanimity. (7) To these motives he appeals for sparing women and children, and old men, and all whose mode of life is opposed to the use of arms, as ministers of religion, husbandmen, and all engaged in traffic. (8) And these

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Of Bynkershoek.

exceptions from the violence of war he supports by dif ferent quotations from various poets, historians, and moralists. Yet, at the end of his chapter, he mentions what is the true key to all discussions on the violence that may be used towards an enemy, namely, that all acts of violence which have no tendency to obtain justice, or to terminate the war, are at variance, both with the duty of a Christian, and with humanity itself. (1) Had he but employed this principle in the investigation, he would have blamed the cruelties of ancient warfare, instead of deducing from them inferences of what was allowable in future wars; and would have based the immunity of those who are helpless, or harmless, not upon the compassion and magnanimity of the victor, but upon the clear right that they have to protection from useless cruelty. A better system of philosophy would have saved Grotius from these erroneous conclusions; and so would an attention to the dictates of the Christian religion, which, as far as morality goes, stands the unlearned in the stead of other wisdom, and gives them principles which moral science, at its best, can only attain by other means, or support by other sanctions.

Bynkershoek does not discuss the extent to which violence may be carried, so much as the method in which it may be exercised; and, in this, his opinions are of the harshest character. He says, that, in his opinion, all violence in war is just, so that it is allowable to fall upon an enemy even unarmed, to obtain his assassination, to have him carried off by poison, or by machines for explosion, (igne factitio), or, finally, "ut uno verbo dicam, quomodocunque libuerit." (2) And he subsequently observes, "quia in victum victori licent omnia, jus quoque vitæ et necis penes victorem esse nemo dubitaverit.” (3)

(1) De Jure, lib. III. c. Iv.

$ 19.

(2) Quæst. Jur. Pub. lib. I. c. I. (3) Id. c. III.

Very superior to the opinions of these writers, is the Of Vattel. principle that should regulate violence in war, as expounded by Vattel. The rights of a nation upon an enemy, in a just war, are wholly, he says, "to be deduced from one single principle, from the object of a just war: for, when the end is lawful, he who has a right to pursue that end, has, of course, a right to employ all the means which are necessary for its attainment.

The lawfulness of the end does not give us a real right to anything farther than barely the means necessary for the attainment of that end. Whatever we do beyond that, is reprobated by the law of nature, is faulty, and condemnable at the tribunal of conscience. Hence it is, that the right to such or such acts of hostility varies according to circumstances. What is just and perfectly innocent in war, in one particular situation, is not always so on other occasions. Right goes hand in hand with necessity and the exigency of the case, but never exceeds them."(1)

This appears a correct exposition of the principles that regulate the degree of violence justifiable towards an enemy. War is an evil, recourse to which can only be justified by the necessity of the case, and for the avoidance of greater evils; and no further evil can possibly be right, than is absolutely necessary to obtain the end of war. It is obvious that to cause unnecessary suffering is as much a crime during war as during peace. Neither the absence of human jurisdiction, nor the precedents of former outrage, at all affect the wrongfulness of useless violence in war: if the former were an excuse, it would make legal conviction the measure of right; and the latter would, unfortunately, supply a reason for the commission of almost every enormity. If the great purposes of justice between nations cannot be preserved from

(1) Droit des Gens, liv. III. ch. v111. § 136, 137.

True principle of the degree in which

violence is justifiable.

Regulations established by

the customary law.

violation without hostilities, recourse to war is justified, and such a degree of slaughter and violence as is inseparable from that condition, and indispensable to attain the end of war, is innocent in the injured, though it attaches a grievous responsibility to the aggressor who occasions such destruction and suffering. To such an extent violence is justifiable; but every commission beyond this is a crime, and as such is forbidden by the Law of Nations. For the Law of Nature, as derived from human reason, and corroborated by inferences from divine revelation, allows no suffering to be inflicted but for the attainment of some just purpose-and only justifies such an extent of infliction, as the circumstances of the case render imperative and indispensable.

The acts of violence allowable in warfare being thus determined by their necessity for the object of the war, it would seem to be indifferent, according to the Law of Nature, in what manner that violence is exercised; so that it would be as allowable to obtain the ends of justice by destroying an enemy by poison, as by killing him in open battle. But the customs of warfare have interfered to regulate the manner in which violence should be exercised; and many of these usages have become acknowledged parts of the Law of Nations, and cannot now be infringed without violating that law. Thus Grotius says, that though the Law of Nature does not forbid the use of poison in war, yet that the Law of Nations prohibits this mode of destruction. (1) Bynkershoek, as we have just seen, allows any sort of violence to be employed, and does not enter upon the consideration of whether this general rule is modified by the usages of nations. Vattel, on the other hand, will not even admit that poison may be used according to the Law of Nature. But, without entering

upon this point, it may now be stated, as decided and

(1) De Jure, lib. III. c. Iv. § 16.

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