Greater cruelty in ancient than in modern warfare.

Grecian and

Roman warfare.

CHAPTER VI.

OF THE RIGHTS OF WAR WITH REGARD TO THE

PERSON OF THE ENEMY.

IN no part of the Law of Nations do we perceive more forcibly the advance which civilization has produced in morality, than in the diminished cruelty which marks the usages of modern warfare. But it is not only civilization, but Christianity, which has produced this improvement, for it is to the influence of this religion that we must attribute the spread of those correct rules for human intercourse, which are proclaimed by its doctrines, and enforced by its revelations. This will appear evident from remarking how, with all our reasons for desiring a more frequent reference to moral responsibility, the influence of Christianity has placed us, in our social and international relations, far beyond the condition of the classic nations of antiquity, even at the most refined periods of their history, when they were bequeathing to us creations of art which later ages regard as the guides of criticism rather than its objects, and which alternately animate the student by their beauty and discourage him by their unapproachable merit.

The practice of the Grecian States was more cruel than that of the Romans; their occasional slaughter of their prisoners, their executing the ambassadors sent to them by an enemy, and killing the crews of merchant vessels captured in war, were not imitated by the Romans, whose fecial college preserved them from such enormities; although the barbarous gratification of

their triumphs partook more of the exultation of a savage over a fallen enemy than of the generous treatment that might have been expected from warriors such as the Romans.

northern

The northern swarms who overran the Empire were And of the destitute of any trace of respect for humanity, and pur- hordes. sued the horrors of war to their fullest extent; ignorant of any moral law to restrain their cruelty, and animated by a brutalizing religion which inflamed instead of mitigating their ferocity.

days of

Under the feudal system, the influence of chivalry Cruelty of the was manifested in the introduction of a more generous chivalry. practice into the usages of warfare; but this was principally the case in the intercourse of the knights with each other; and they who have had their ideas of the days of chivalry coloured by those beautiful romances which so engross us by imagination as to leave the judgment for a time inactive, will find, with surprise and regret, that that æra of heroic virtues, was also marked by cruelties that are hardly surpassed in the warfare of savages. What will the admirers of the days of chivalry think of its being the custom of warfare to execute captives in the sight of a besieged town, in order to terrify their comrades into submission ?—yet this was done by the hero of Agincourt: or of executing, in cold blood, the garrison of towns that defended themselves bravely?-yet this was done by that favourite of romance, our Richard I.; or of hanging all who attempted to succour a place besieged?—as was done by the Duke of Burgundy, Charles the Bold. Nor were these solitary instances of barbarity; but appear to have been the usual custom of the times, and to have continued in use till nearly the sixteenth century. Poisoned arms were also occasionally used, and wells and fountains were poisoned, and the barbarous prac

The opinion of Grotius.

tice of 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

(1) See Ward's "Inquiry into the Law of Nations before the Age of Grotius," vol. I. ch. VI.-IX. In the latter are abundant, and

very interesting illustrations of the above positions.

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

goes, which are in themselves culpable:-but he 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

Of Bynkershock.

exceptions from the violence of war he supports by different 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 exemption 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.

Bynkershock 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.