亨利-梅因：国际法Lecture 7

somewhat irregular form by the greater part of the nations of the world.

　　The Manual prepared for English officers， which was， I believe， chiefly compiled by the present Lord Thring， then the official draftsman of the British Government， is one of the best. Visibly the writer has taken all that he could take from the humaner doctrines of the publicists， more particularly from Vattel， but he never pretends to lay down authoritatively the law， which he nevertheless declares in such a form that it is now possible for a student of law to read it and to gain from it a very vivid notion of what a land war in which England was engaged would be like if unhappily it occurred. I will proceed to read to you certain passages from this Manual， taking portions at the same time from other Manuals， and making some remarks as I go on upon the older history of the customs of war of which it treats. I am sorry to say that the British Government has not thought fit to allow it to be published， and therefore I am afraid it cannot be procured. It begins with a statement of general principles.

　　'War， properly so called， is an armed contest between independent nations， and can only be made by the sovereign power of the State. In this country a formal announcement of war is made by a proclamation issued by her Majesty and posted in the City of London. The first consequence of this existence of a state of war between two nations is， that every subject of the one nation becomes in the eye of the law an enemy to every subject of the other nation； for as every subject is politically a party to the act of his own Government， a war between the Governments of two nations is a war between all the individuals of each nation. This principle carried to its extreme limits would authorise the detention， as prisoners of war， of subjects of one of the hostile parties travelling or resident in the country of the other at the time of the outbreak of war， and the confiscation of their goods. The exercise， however， of such a right is contrary to the practice of modern warfare， an

d the conduct of Napoleon cannot be justified， who on the outbreak of the war with England in 1803 seized all the English travelling in France between eighteen and sixty years of age， and detained 10，000 of them in prison， where they remained till the peace of 1814. The usage with respect to goods is to allow the owners to dispose of them， or leave them to be claimed by the owners on the restoration of peace. The expulsion of subjects of the enemy from the territory of the opposing state is justifiable， and may be exercised or not according to circumstances. During the Crimean war Russians were allowed to reside quietly both in England and France. In the Franco-German war of 1870 hostile strangers revere required to quit the soil of France within a few days after they had received notice to quit. On the other hand， war is not a relation of man to man， but of state to state， and in itself implies no private hostility between the individuals by whom it is carried on. They are enemies only in their character of soldiers， and not as men. The object of war， politically speaking， is the redress by force of a national injury. The object of war in a military point of view is to procure the complete submission of the enemy at the earliest possible period with the least possible expenditure of men and money.' 'Wars，' says Lord Bacon， 'are no massacres and confusions， but they are the highest trial of right， when princes and states， that acknowledge no superior on earth， shall put themselves upon the justice of God for the deciding of their controversies by such success as it shall please Him to give to either side.'

　　Going back upon this list of general principles， I must call your attention to the contrast between the statement that the first consequence of the existence of a state of war between two nations is that every subject of the one becomes in the eye of the law an enemy to every subject of the other nation， and the proposition that war is not a relation of man to man， but of state to state， and of itself implies no private hostility between the individuals by whom it is carried on， that they are enemies only in their character of soldiers， and not as men. Several critics in European countries have remarked on this， that the two propositions do not fall in with one another； that the first of them would authorise the killing of women and children， whereas the second reduces war to a contest between professional soldiers. I think there is some justice in this criticism， that the two propositions belong to different periods of history. The first represents what might have been the theory of law if an attempt had been made to express it at the period of Greek classical antiquity， while the second proposition represents a new theory to which the world has generally advanced. Many passages which meet us in Thucydides show that in point of fact in the view of the Greeks war must have been thought （if anybody theorised about it） to be waged between the whole of the subjects of one state and the whole of the subjects of another. There is a passage that recurs frequently， that they killed the men， and the women and children they reduced to slavery. The women and children were in fact considered， as well as the men， to be in a state of enmity to the other belligerent state. I remark here， what many have remarked as well， that one consequence of the decay and abolition of slavery was an increase of bloodshed. Women and children and occasionally grown men had a value of their own which supplied a motive for keeping them alive， and at a later date bloodshed was， to a certain extent， diminished by the practice of ransoming； and there were no bloodier wars than those which occurred when the practice of ransoming had just died out.

　　The next portion of the Manual has for a title： 'The means by which war should be carried on' —— that is to say， the means by which war is as a fact carried on among civilised and relatively humane

enemies. The writer says： 'The poisoning of water or food is a mode of warfare absolutely forbidden； but the turning off the supply by stopping convoys of food to the enemy is one of the usual methods of reducing them to submission. The use of poisoned weapons and of weapons calculated to produce unnecessary pain or misery is prohibited， on the ground that， as the object of war is confined to disabling the enemy， the infliction of any injury beyond that which is required to produce disability is needless cruelty.'

　　As to the poisoning of water and food， the best explanation of its prohibition is that it seems to have existed from very earliest times. It is quite certain that both Greeks and Romans thought that the poisoning of water and food was worthy only of barbarians. What was the origin of this feeling？ has been asked by writers of modern days. It may have been that the poisoning of water and food was thought a peculiarly pailful mode of inflicting death. The only poison of great efficacy which seems to have been known to antiquity， and which indeed was the base of the subtle poisons employed in the Middle Ages by the Italians， was arsenic， which no doubt causes death coupled with the extremest pain. Or it may have been the idea that poison was not fair fighting —— and this shows itself as a very strong feeling in very ancient days —— that on the whole each combatant ought to have the means of employing his skill in resistance.

　　On the subject of the use of poisoned weapons， and weapons calculated to produce unnecessary pain or injury， one of the chief modern reforms of the law of war has been attempted， and with as much success as it was possible for it to command. By the Declaration of St. Petersburg， proposed by the Emperor Alexander II and signed in 1868 by all the civilised Powers， the contracting parties agreed to renounce the use by their forces on land or sea of an explosive projectile of a weight below 400 grammes —— a little more than fourteen ounces —— charged with fulminating or inflammable matter. I have heard that this provision in the Declaration of St. Petersburg has no longer its humane effect in consequence of the progress of science， which， I am sorry to say， has often had the effect of defeating attempts to increase the area of humanity. It is alleged that the conical bullets which are universal in modern armament do in fact cause pain as severe and wounds as incurable as ever did the explosive bullets which were just coming in about the year 1868. I am myself incompetent to meet the objection， but at all events we must mark that the Declaration of St. Petersburg， expressing the opinion of the whole civilised world， declares that the object of war is confined to disabling the enemy， and lawful usage does not warrant any state in causing injuries which give more pain than is necessary for that comparatively humane object.

　　A further universally accepted rule is as follows： 'Assassination is against the customs of war. Assassination is the murder by treachery of individuals of the hostile forces. The essence of the crime is treachery， as a surprise is always allowable， and a small force may penetrate into the enemy's camp， despatch the sentinels， take the general officer prisoner or kill him， without infringing any of the customs of war or subjecting themselves， if taken， to be treated otherwise than as prisoners of war. It is the duty of the enemy to be prepared against a military surprise， but not to guard himself against the treacherous attacks of individuals introduced in disguise into the camp.'

　　Assassination began to be regarded with peculiar horror immediately after the Reformation. No doubt it was the murder of William of Orange， more than suspected of having been prompted by the Spaniards， which

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