亨利-梅因：国际法Lecture 8

creditable to the skill of a commander than successes in drawn battles， was very largely held in the last century， and military writers of great celebrity have left accounts of the successful use which they made of spies and their services. Frederick the Great of Prussia， in November 1760， published Military Instructions for the use of his Generals， which were based on a wide practical knowledge of the matter. He classed spies as 'ordinary spies，' 'double spies，' 'spies of distinction，' and 'spies by compulsion.' By 'double spies' he meant spies who also pretended to be in the service of the side they betrayed； by ' spies of distinction' he meant officers of Hussars whose services he found useful under the peculiar circumstances of an Austrian campaign. When he could not procure himself spies among the Austrians owing to the careful guard which their light troops kept around their camp， the idea occurred to him， and he acted on it with success， of utilizing the suspension of arms that was customary after a skirmish between Hussars， to make those officers the means of conducting epistolary correspondence with the officers on the other aide. 'Spies of compulsion' he explained in this way. When you wish to convey false information to an enemy， you take a trustworthy soldier and compel him to pass to the enemy's camp to represent there all that you wish the enemy to believe. You also send by him letters to excite the troops to desertion； and in the event of its being impossible to obtain information about the enemy， Frederick prescribes the following： choose some rich citizen who has land and a wife and children， and another man， disguised as his servant or coachman， who understands the enemy's language. Force the former to take the latter with him to the enemy's camp to complain of injuries sustained， threatening him that if he fails to bring the man back with him after having stayed long enough for the desired object his wife and children shall be hanged and his house burnt. 'I was myself，' he adds， 'constrained to have recourse to this method， and it succee

ded.' The humanity and good faith of Frederick the Great have never been celebrated； but how much of these principles survive to our own times we can gather from Lord Wolseley's 'Soldier's Pocket Book.' 'The best way，' he suggests， 'to send out a spy is to send a peasant with a letter written on very thin paper， which maybe rolled up so tightly as to be portable in a quill an inch and a half long， and this precious quill may be hidden in the hair or beard， or in a hollow at then end of a walking stick. It is also a good plan to write secret correspondence in lemon juice across a newspaper or the leaves of the New Testament. It is then safe against discovery， and will become legible when held before a fire or near a red-hot iron. As a nation，' adds Lord Wolseley， 'we are brought up to feel it a disgrace even to succeed by falsehood. The word "spy" conveys something as repulsive as "slave." We keep hammering along with the conviction that "honesty is the best policy，" and that truth always wins in the long run. These sentiments do well for a copy-book， but a man who acts upon them had better sheath his sword for ever.'

　　One of the most important subjects of which the new Manuals treat is the person of the enemy. The enemy， it is laid down， consists of armed forces and of the unarmed population. The first principle of war is that armed forces as long as they resist may be destroyed by any legitimate means. The right of killing an armed man exists only so long as he resists. As soon as he submits， he is entitled to be treated as a prisoner of war. Quarter should never be refused to men who surrender， unless they have been guilty of some such violation of the customs of war as would of itself expose them to the penalty of death； and when so guilty they should， whenever practicable， be taken prisoners and put upon their trial before being executed， as it is seldom justifiable in a combatant to take the law into his own hands against an unresisting enemy. Most of you， I imagine， are aware that this principle， stated in this broad way， is quite modern. Most of us have learnt， when children， touching stories of the refusal of quarter to garrisons that had surrendered in our avers of succession with France. Many of us remember Froissart's story of six citizens of Calais whom Edward III was with difficulty restrained from hanging for the obstinate resistance they had made to the siege of their town. In point of fact， during this war， and the later war of Henry V against France， even when the successful General was disposed to be merciful， he generally reserved a certain number of the besieged， though a small number， for execution. When Rouen surrendered to Henry V the latter stipulated for three of the citizens to be left at his disposal， of whom two purchased their lives， but the third was beheaded. When the same king， the year following， was besieging the castle of Montereau， he sent twenty prisoners to treat with the Governor for a surrender； but when the Governor refused to treat even to save their lives， and when， after taking leave of their wives and families， they were escorted back to the English army， the King of England ordered erected， and had them all hanged in sight of those within the castle. When Meaux surrendered to the same king， it was stipulated that six of the bravest defenders should be delivered up to justice， four of whom were beheaded at Paris， and its commander at once hanged on a tree outside the walls of the city. No doubt this severity was due in a great degree to the hard measure which in those days was always dealt out to a force which had resisted an attack when there was no chance of success. And this is one ground on which the savage practices which accompanied storms and sieges were explained； but it is always to be recollected that in these French and English wars there was another cause of extreme truculence. In the minds of those who waged them they were wars of succession， and questions ther

efore of the faith and submission due to a sovereign mixed themselves up with the ordinary considerations of the field. On reading the accounts of them carefully， the special severities of our Edward III and our Henry V may be seen to be constantly explained by the successful king's belief that he was dealing with traitors who had surrendered themselves； and in fact it appears to have been the conviction that the population attacked owed legally fealty to the General of the army attacking them， which led specially to the cruelties of these wars， just as a conviction of the lawfulness of the severest punishment for heresy and infidelity led to the savageness of the wars of religion. There is no doubt that at present the Manuals state the practice correctly， that quarter ought never to be refused to men who surrender， unless they have been guilty of some such violation of the customs of war as would of itself expose them to the penalty of death， and when so guilty they should whenever practicable be taken prisoners and put upon their trial before they are executed， for it is seldom justifiable for a combatant to take the law into his own hands against an unresisting enemy. The point was one which was largely discussed at the Conference of Brussels， and it was proposed by some of the delegates that even spies should be no longer executed when taken， but should always be treated as prisoners of war.

　　We come now to portions of these Manuals of warlike customs which are pleasanter reading. 'The wounded must not only be spared， but humanity commands that if they fall into the hands of their opponents the care taken of them should be second only to the care taken of the wounded belonging to the captors. Surgeons and others in attendance on the wounded， though forming part of the armed forces， are exempted from the liability of being attacked unless they divest themselves of their non-combatant character by actually using arms， in which case they may be treated as part of the combatant body. The same amenity and under the same conditions should be extended to camp followers， and other persons in attendance on the army but not bearing arms，'

　　The first and last parts of this paragraph give the results of the Geneva Convention， the furthest point which has at present been reached by humane doctrine in the actual conduct of war. This Convention was signed on August 22， 1864. It states that it was drawn up for the amelioration of the condition of the wounded of armies in the field. I will read you a few of its principal provisions：

　　'Ambulance end military Hospitals shall be acknowledged to be neutral， and as such shall be protected and respected by belligerents so long as any sick or wounded may be therein. Such neutrality shall cease if the ambulances or Hospitals should be held by a military force. Persons employed in Hospitals and ambulances， comprising the staff for superintendence， medical service， administration， transport of wounded， as well as chaplains， shall participate in the benefit of neutrality while so employed， and so long as there remain any wounded to bring in and to succour.' The persons designated in the preceding article may even after occupation by the enemy continue to fulfil their duty in the Hospital or ambulance which they serve， or may withdraw in order to rejoin the corps to which they belong. Under such circumstances， when those persons shall cease from their functions they shall be delivered by the occupying army to the outposts of the enemy. As the equipment of military Hospitals remains subject to the laws of war， persons attached to such Hospitals cannot on their withdrawing carry away any articles but their own private property； and under the circumstances an ambulance shall， on the contrary， retain its equipment. Inhabi

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