亨利-梅因：国际法Lecture 7

　　LECTURE VII. THE MITIGATION OF WAR.

　　The age in which International Law was born was an age of land wars. The wars of succession and of feudal ascendancy had partially died out， but the Reformation brought with it a new fury of fighting， and the wars of religion were among the most ferocious that mankind had waged. Armies did not then so much consist of rival potentates， as of hosts in which each individual detested every man on the generally believed to have culminated in the siege of Magdeburg. There is a famous passage of Grotius about the licence of fighting which he saw around him； and though the dates forbid us to see here with solve writers any allusion to the siege of Magdeburg， there seems little doubt that the stories of the horrors which became current gave a new point to the speculations of Grotius and his school. Until very recent times there is great ground for distrusting the accuracy of the figures which purport to represent the amount of slaughter at battles and sieges. It is said， however， that the population of Magdeburg， which was taken by storm， was reduced from 25，000 to 2，700. The siege is described by an English eyewitness， whose account of it， generally regarded as authentic， constitutes those 'Memoirs of a Cavalier' which are generally embodied in the works of Defoe. The writer states that out of 25，000 men， and some said 30，000， there was not after the storm a soul to be seen alive till the flames drove those that were hid in vaults and secret places to seek death in the streets rather than perish in the fire. Of these miserable creatures too some were killed by the fierce soldiers， but at last they saved the lives of such as came out of their cellars and holes， and so about 2，000 poor desperate creatures were left. There was little shooting. The execution was an cutting of throats and mere house murders. Later historical information tends on the whole to relieve the memory of Count Tilly， the commander of the besiegers， from the infamy which has hitherto attached to it； but all sieges in that day were to the last degree homicidal， and there is a general impression that the peculiar ferocity of the soldiery after the capture of a town by storm was due to the Tartars， who had twice overrun what were then the most fertile and civilised portions of the world， and who never spared the population of the town which had resisted them. They appear to have considered that every stratagem and every degree of bad faith was justifiable for the purpose of inducing the garrison to surrender， but in the long run they never spared any man. Nor have the countries in which these massacres took place ever wholly recovered from them. So far， indeed， as the centre and west of Europe are concerned， there is visible a calming down of these bitter extremities of war as soon as Grotius， with perhaps a few predecessors and a series of successors， began to write. I have already several times referred to his method. He was guided， as it seems， principally by what he supposed to be examples and precedents. He was a man of great learning according to the particular standards of learning which prevailed in that day； but the critical treatment of history had not begun， and the worst of the pile of innumerable examples which are collected in the 'De Jure Belli et Pacis' is that we cannot be sure of the authenticity of the accounts of them which are found in the books of ancient writers. Grotius digested these precedents. He separated the most humane from the most ferocious， performing the function of separation by applying to the mass of matter before him， first of all the test of religious teaching as he found it in the Scriptures， and next the principle of what the Romans called the Law of Nature. The method of his immediate successors has been substantially the same； but in our day some scepticism has arisen， not so much as to the philosophical value of the process as with regard to its practical results. I

n modern international writings you may sometimes find it said that the softening of the usages of war was not so much due to Grotius， or to writers who came after him， as to the growing humanity of military commanders. It is true that among the successors of Grotius there is a great variety in the degree of humanity which characterizes them. Puffendorf and Bynkershoek are inferior to Vattel in gentleness， and in the wish to prefer the more humane to the queller usage， but beyond comparison the most humane of the publicists is Vattel， a Swiss. There is， however， very good reason to suppose that it was the writings of the publicists which most encouraged the humanity of war. They all followed Grotius in professing unbounded respect for the Roman conception of the Law of Nature. Philosophically that principle is now not much cared for； but the supposed rules of the Law of Nature were applied by another set of writers to another subject matter. There was a gradual growth all over continental Europe in the eighteenth century of respect and reverence， and even enthusiasm， for humanity， and you may perceive that on the whole the persons who experienced， or pretended to experience， this feeling， were： believers in the Law of Nature. The chief of them was that famous man the whole of whose philosophy， political， social， and educational， was based on the Law of Nature， Jean Jacques Rousseau. It seems in truth， apart from what the opinion of scholars may have been， that there was always a close association between the Law of Nature and humanity， and that by their constant profession of applying that law and of easily distinguishing its dictates from one another the international writers did materially increase the gentleness of mankind even when their passions were most excited.

　　The wars of the last part of the seventeenth and most of the eighteenth century were naval wars. A great amount of law grew up while they were continuing. One chief reason why， on the whole， naval usages are reasonable and humane is， that the belligerents were checked by the neutrals. In land wars a neutral can only affect proceedings to which he objects by taking part in the strife； but from the very first the belligerent maritime Powers were prevented from going to the full lengths of predatory destructiveness by the authority of prize courts. It is， however， quite true that the commanders of land forces did gradually abandon the ferocity with which Tilly has been reproached. There was no more humane commander on the whole than our own Duke of Wellington. It is singular， at the same time， that he constantly falls into an error with which English lawyers are specially charged， that of confounding military law， which is regulating law， with martial law， which means the will of the officer commanding. He always spoke of the law of war as consisting in the volition of the Commander of the Forces.

　　The first great attempt which was made after the epoch of Grotius to give general fixity and to humanise the law of land war， was made almost in our day by an unfortunate sovereign to whom justice has never been fully done， Alexander II of Russia. He does seem to have been animated， as were both the statesmen and literary men occasionally in the eighteenth century， by an enthusiasm for humanity. You are all aware that almost immediately after his succession to the Russian throne he abolished serfdom； but his efforts to reform International Law， and specially the usages of war， are less remembered. He joined in promoting the Geneva Convention， of which I shall say much presently； he was the author of the proposal for renouncing the use of certain weapons which caused wounds of unusual painfulness； and he was the sovereign who summoned and who took an unflagging interest in the

　　Brussels Convention of 1874. The Brussels Convention failed， and we shall find， I think， hereafter that the reasons why it failed are remarkably instructive. I will say

that one of the grounds for its not coming to maturity was， that it was commenced too soon after one of the greatest of modern wars， which probably never had a rival in the violence of the passions which it excited. England before the Convention met had stipulated for the omission of all discussion of the rules of naval war. These， I suppose， were considered to have been sufficiently settled for the day by the Declaration of Paris； and at the close of the discussions of the Conference， when even its members admitted that they had been able to agree on a very small part of the matters submitted to them， it was the English Foreign Secretary of State， Lord Derby， who finally gave the Convention its deathblow. Undoubtedly the smaller Powers of Europe， and the Powers which have not yet taken up the system of great armies raised by conscription， had very serious reasons for objecting to many of its suggestions， which had not unnaturally sprung up in the minds of military men who sympathised either with France or with Germany in the war which a few years before had been brought to a conclusion. The Brussels Conference had， however， one result which had great importance and interest. Just at the close of the American War of Secession the United States had prepared a Manual of Rule and Usage for the use of their officers in the field. This example —— the formation of a practical Manual stating for the officers of each nation what contingencies they were to be prepared for in actual contest and how they were to deal with them —— was followed by Germany， by England， and by France？ and some of these Manuals have been adopted by smaller Powers. But they were all greatly affected by the recommendations of the Conference of Brussels； and in reality it may be said that wherever there was anything like an approach to unanimity in the decisions and votes of the Conference， it is adopted in this

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