CHAPTER IL BEFORE GROTIUS. The confusion in the use of the terms “law" and "right.” -In a letter quoted later,' Count von Moltke denies rather warmly the applicability of the term law to international agreements, as there is no authority to watch over and execute them. He is one of a great number who have considered the essential quality of law to be that of command, so that there can be no law where there is no superior. He represents the opposite extreme from those who would extend the scope of international law to include natural law, and while this view as to what law is, has been regarded by Sir Henry Maine and others as negligible, since Count von Moltke would have undoubtedly recognized the obligation of well-settled usages of war by whatever name called, still it unquestionably produces 'confusion in the use of the term law and hinders that general consensus of opinion which is so desirable, especially in the relations between belligerents. Renders the ascertainment of war practice of past ages difficult. This confusion in the use of terms is not peculiar . to our own time, and it renders the ascertainment of the war practice of past ages peculiarly difficult. The most contradictory statements are made as to the existence or nature of a law of war, when the whole difficulty is apt to be a matter of terms. It is probably true, as Montesquieu has said, that "all countries have a law of nations, not excepting the Iroquois themselves, though they devour their prisoners." It is important to bear this in mind, for the statement is frequently made that till recently war broke all legal relations and that an enemy had no rights, a statement that is true only in some of the narrower senses in which the terms "law" and "right" have been used. 1 Infra., p. 114. • Montesquieu, Spirit of Laws, Bk. 1, Chap. III. The Aryans early showed high standards of humanity in war. No one who recalls the wars of extermination waged by the Jews, or the deeds of savagery that disfigure the pages of ancient and oriental history, will care to have them detailed here. Often they involved no suffering to the living, but consisted in savage exultation over the dead; but to us they must be equally revolting. On the other hand, it must be a matter of pride to us that, among the first glimpses we have of the Aryan peoples. we find incidents of humanity in time of war which foreshadow the high standards of war practice in vogue today and form a pleasing contrast to the general current of contemporaneous history. Diodorus Siculus says that, although among the ancient Hindus "the armies on both sides slaughter one another, yet they never hurt the husbandman, as one who is a servant for the common good and advantage of them all; neither do they burn their enemies' country, or cut down their trees or plants."" Instances of a like humanity are found among the Persians; and, while we find in Homer incidents of savagery and revenge, these are offset by the many instances of Greek and Roman humanity which are recited in the pages of Grotius; instances which caused him to turn to classic literature with relief from the sickening events of the Thirty Years' War. Greek and Roman war practice.-In some respects, war was more severe even in the best periods of Greece and Rome than it is today. Prisoners of war were made slaves, the inhabitants of towns taken by assault could expect little mercy, and acts of great severity intended to inspire terror were frequent. On the other hand, declarations of war were very elaborate, the release of prisoners on parole and ransom was not unknown, acts of violence against women and children were denounced and perfidy was condemned. The few precepts of the Roman Law relating to war made much of by the founders of the Law of Nations.-The The Historical Library of Diodorus the Sicilian, Bk. II, Chap. III, p. 73 (Trans. Booth). • Plutarch, Greek questions, Question 17 (Trans. Booth). Grotius, Bk. III, Chap. XI, 9-15 and Chap. IV, 18, quoting numerous Greek and Latin authors. Digest of Justinian, which is the great source of our knowledge of the Roman Law, and which embodies most of what was best of the great Roman jurists, contains little that pertains to the subjects covered by The Hague Regulations, and, except as to captives, that little consists of incidental remarks; but, like everything else in the Digest, that little was so worked over and elaborated by the jurists of the Middle Ages and their successors that it occupies a prominent place among the sources of the modern law of war. The law of capture.-Enemy property was placed in the same class with res nullius, things belonging to no one, such as animals in a state of nature, from the fact that in both cases title was not derived from someone else but was acquired by mere appropriation. Conquered land became the property of the state; but it was customary to leave the old proprietors in possession of part of what they had owned or even of all of it, subject to a permanent land tax. Other property, unless captured under such circumstances as to make it the individual property of the captor, as in an assault, became part of the general spoil,10 which, or the proceeds of which, was commonly distributed among the various ranks of the army after a deduction had been made for the public treasury and at times also for the gods." Prisoners of war became slaves, but only on being led into the camp of the enemy. Until then they retained their civil rights." This principle of intra praesidia, that firm possession was necessary to give title, occupies a very modest place in the Digest, but it was applied generally to things as well as to persons by Grotius and the other early writers on the Law of Nations; and it played a most important part in limiting the rights of Conquest to places which had been firmly occupied as well as in postponing the vesting of title to cap Gaius, II, 66-68; Just., II, 1, 17. TD, XLIX, 15, 20. Grotius, III, 6, 11; Bluntschli. Revue de Droit International, IX, 519. Livy, II, 41, VIII, 1. Grotius, III, 6, 18. 10 D, XLIX, 15, 20. 11 Grotius, III, 6, 16, 20. 12 D, XLIX, 15, 5, 1. tured ships till they were brought to a place of safety, such as a port of the captor or of an ally, or the vicinity of a fleet. Prisoners did not become slaves in civil wars.—Another important modification of the doctrine that prisoners. of war became slaves was that this took place only where the war was solemnly declared;" and, as this was impossible in the case of internal war, the opposing forces in such a war did not become formal enemies nor did prisoners of war become slaves.14 Grotius attributes much of the savagery of the civil wars to this cause, on the supposition that men were more inclined to kill where they had not the right to enslave." In the Middle Ages, when many were inclined to regard those recognizing the authority of the Roman Church as the successors of the Roman people, the modification in question had an important influence, as it gave a legal basis to the doctrine that the wars of Western Europe were civil wars and that accordingly no right of enslaving prisoners of war could arise from them.16 17 The effect of capture on a Roman citizen and of his return to his own country.-The enslavement of a prisoner of war meant the loss of his citizenship, of his position in his family, and of his property rights; but this was subject to the important qualification that his rights revested, and that his old position in his family and in the state revived, on his escape from the enemy and return to his own country. In effect his various rights were suspended for the period of his captivity. A will made during that period was invalid, and his children were released for the time being from obedience to him. If he died in captivity, however, it was provided by a Cornelian law that he should be considered to have died a Roman citizen. The jurists interpreted this to mean that he was considered to have died at the moment of capture, so that those who would have been entitled to succeed to his estate, if he had died at that time, became entitled to it.1a Law of reverter or postliminium.-This law of re 18 D, XLIX, 15, 24.. 14 D, XLIX, 15, 21. 15 Grotius, III, 7, 5, 3. 16 Nys, Origines, etc., p. 237. 17 Gaius, I, 129; Ulpian, X, 4. 18 Roby, Roman Private Law, I, 210; D, XLIX, 15, 22. verter, which changed the effect of capture from an absolute loss of rights to the mere suspension of them, was called the law of postliminium. It applied also to land, slaves, ships of war and horses; but as these are specifically mentioned it is probable that the law did not apply to property in general, but that such property became part of the general booty on recapture. It certainly did not apply to arms, which it was considered a disgrace to loose.20 It is probable, then, that most kinds of movable property when recaptured, did not vest in the old owners; and by the time of Grotius, at least, this had ripened into a well-recognized rule of international practice, so that the law of postliminium was considered by him and most of his successors to apply to land and territory, but with some exceptions not to movables. This law of war was elaborated in greater detail than any other by the Roman jurists, so that it came to occupy an important place in early works on the Law of Nations, as it has continued to do well into the present century. Its chief function in International Law has been in keeping clear the principle that territory seized by an enemy does not become his in equal right with his old territory till the conclusion of the war. The same result is much more simply worked out in our modern doctrine of Military Occupation; but to a great extent, the results of the old doctrine of defeasible title were the same as those of this later doctrine of mere possession. The Germanic migrations.-There is no sharp break between the character of the warfare waged by the armies of the later Roman Empire and of that waged by the Germanic tribes which overran it. From the beginning of the fifth century German mercenaries came to be a preponderating element in the imperial armies," and, as each corps was encouraged to keep its own national arms and equipment," there was probably more in common between the warfare waged by the German tribes in the great migrations and the warfare of the later Empire than between the latter and the earlier Roman practice. From the mo 19 D, XLIX, 15, 2-3; Roby, II, 265. 20 Ibid. 21 Oman, the Art of War, p. 16. |