Right of war

“ All history is the decline of war, though the slow decline. All that society has yet gained is mitigation: the doctrine of the right of war still remains. ”

“ Force, therefore, or war, as it is called when exerted by a nation against another nation, is at present the only legal and final method of settling international differences. In other words the nations are in that stage of civilization today where without a qualm they claim the right to settle their disputes in a manner they would put their own subjects to death for imitating. The peace movement, therefore, is nothing but the process of substituting law for war. ”

“ I, for my part, am convinced that the error, which has been handed down to us from antiquity, according to which all law is suspended during war, and everything is allowable against the enemy nation—that this abominable error can but increase the unavoidable sufferings and evils of war without necessity, and without utility from the point of view of that energetic way of making war which I also think is the right way. ”

“ America’s outstanding authority on matters of international conduct, former Secretary of State Elihu Root, declared that the World War was a mighty and all-embracing struggle between two conflicting principles of human right and human duty; it was a conflict between the divine right of kings to govern mankind through armies and nobles, and the right of the peoples of the earth who toil and endure and aspire to govern themselves by law under justice, and in the freedom of individual manhood. ”

“ III. In the second place, it is generally known that it is not the ORIGIN only of a just war which is to be viewed as the principal source of many of our rights, but there may be causes growing out of that war which may give birth to additional rights. As in proceedings at law, the sentence of the court may give to the successful litigant other rights besides those belonging to the original matter of dispute. So those who join our enemies, either as allies or subjects, give us a right of defending ourselves against THEM also. ”

“ A war may gradually change its nature and its object from the prosecution of a right to the desire of seconding or supporting the aggrandizement of some other power. But such motives, though blamable, when even connected with a just war, do not render the war ITSELF unjust, nor invalidate its conquests. ”

“ We have no desire to humiliate the German people, but we are determined that this war, with all the cruel suffering that it has entailed and will entail, shall not be fought in vain. [Cheers.] We are determined that in our time and that of our children never again shall that dread spectre which has haunted us as a nightmare have the power to frighten us. We have put our hands to the plough, and we shall not turn back until we have made sure that the law not of might, but of right, that the law not of force, but of humanity and justice, is the law which must govern the world. ”

“ Causes.—A nation may wage war to defend any right which as a state it is bound to protect, to redress wrong, or to prevent injury; for instance, to defend its own sovereignty; to protect a citizen in his rights; to obtain satisfaction for insults to its flag, its ambassadors, or its good name; for the violation of treaty rights; to prevent injury, as by checking the onward march of some "conquering hero." War for conquest is not now recognized as legitimate. ”

“ Secondly, the right to obtain justice by force, if we cannot obtain it otherwise, or to pursue our right by force of arms. This is the foundation of offensive war.”
Justice is pledged by men to each other by means of promises or contracts; what promises and contracts are between men, treaties are between nations. ”

“ As soon therefore as we have declared war, we have a right to do against the enemy whatever we find necessary for the attainment of that end, for the purpose of bringing him to reason, and obtaining justice and security from him. ”

“ Relaxation of right in order to avoid war—particularly penalties—Self-preservation motive for forbearing hostilities—Prudential rules in the choice of advantages—Peace preferable to the extermination of hostile powers—Forbearance prudent in inferior powers—War not to be undertaken, but from necessity. ”

“ It is from the same source of authority that we derive the unquestioned right, after the war has been declared by Congress, to blockade the ports and coasts of the enemy, to capture his towns, cities, and provinces, and to levy contributions upon him for the support of our Army. Of the same character with these is the right to subject to our temporary military government the conquered territories of our enemy. They are all belligerent rights, and their exercise is as essential to the successful prosecution of a foreign war as the right to fight battles. ”

“ The injury which the allies of our enemy, in a war common to them, (but in which we are not engaged,) sustain, by this occasional interruption, is incidental, while, on our part, it is the exercise of a direct and essential right. But when we attack a friend who is carrying on military operations conjointly with our enemy, but not against us, we are not making direct war, but are using those incidental rights which war gives us, against those direct rights which are exercised by a belligerant not our enemy, and which constitute war itself. ”

“ Since effect was thus given to the modern usage of nations, it was unnecessary to declare, as he did in the course of his opinion, that "war gives to the sovereign full right to take the persons and confiscate the property of the enemy, wherever found," and that the "mitigations of this rigid rule, which the humane and wise policy of modern times has introduced into practice," though they "will more or less affect the exercise of this right," "cannot impair the right itself." ”

“ Lawfulness of despoiling an enemy's country—Forbearance of using this right, where things may be useful to ourselves, and out of an enemy's power—Forbearance in the hopes of speedy conquest, or where things are not immediately necessary to support an enemy, and aid him in maintaining the war—Buildings for the purposes of religion not to be wantonly destroyed—Advantages of this moderation. ”

“ As the object of a just war is to obtain justice, a nation, when it has declared war, has a right to use all necessary means, and no other, for attaining that end. A just war gives the right to take the life of the enemy ”

“ This great and pervading change in the existing condition of a country, and in the relations of all her citizens or subjects, external and internal, from a state of peace, is the immediate effect and result of a state of war, and hence the same code which has annexed to the existence of a war all these disturbing consequences has declared that the right of making war belongs exclusively to the supreme or sovereign power of the State. ”

“ The same spirit of justice and humanity animating him in defence of liberty inspired his exertions for the abolition of the barbarous custom or institution of War. When I call war an institution, I mean international war, sanctioned, explained, and defined by the Law of Nations, as a mode of determining questions of right. I mean war, the arbiter and umpire, the Ordeal by Battle, deliberately continued in an age of civilization, as the means of justice between nations. Slavery is an institution sustained by municipal law. War is an institution sustained by the Law of Nations. ”

“ The right is unquestionable by the laws of War. The expediency must be determined by circumstances, keeping in view the great object of overcoming the Rebels, reestablishing the Laws, and restoring Peace to the Nation. ”

“ I might furnish a thousand proofs to show that the pretensions of gentlemen to the sanctity of their municipal institutions under a state of actual invasion and of actual war, whether servile, civil or foreign, is wholly unfounded, and that the laws of war do, in all such cases, take the precedence. ”

“ Nor is it upon conjecture alone that such a right is founded, but the divine law giver himself pronounces sentence against a city that has rejected the offers of peace, and afterwards been taken by storm, that he gives all her spoils to the conqueror.
II. But according to the law of nations, not only the person, who makes war upon just grounds; but any one whatever, engaged in regular and formal war, becomes absolute proprietor of every thing which he takes from the enemy: so that all nations respect his title, and the title of all, who derive through him their claim to such possessions. ”

“ It has long been a widely accepted theory that the only sanction for the right conduct of nations, for those rules of conduct which nations seek to enforce upon each other, is the exercise of force; that behind their diplomatic argument rests, as the ultimate argument, the possibility of war. ”

“ By the right of the sword is understood the exercise of every kind of restraint, in the sense adopted by the Lawyers, not only over offenders amongst his own people, but against neighboring nations, who violate his own and his people's rights. ”

“ Right of Going to War in relation to Hostile States. Viewed as in the state of Nature, the Right of Nations to go to War and to carry on hostilities is the legitimate way by which they prosecute their Rights by their own power when they regard themselves as injured ”

“ I. That equity and moderation towards individuals, which are so highly extolled, are still more deserving of admiration, when exercised towards nations and kingdoms; where injustice would be attended with more signal calamities, and moderation with more beneficial effects.
In just war the right of dominion over a people, and the sovereign power, which that people possess, may be acquired as well as any other right. But the claims to such a right ought by no means to be prosecuted beyond indemnity for aggression, and security against future evils. ”

“ Ordinarily, only the sovereign power—that is, the person or body in whom the chief authority is vested according to the constitution of the nation—can make war. War is an act of the nation, and hence only the authority that represents the nation can make war. Subordinate bodies in a confederation or union of states have the right to make war, if custom or law allows it. ”

“ As the Law of Nations recognises the status of war and its effects as regards rights and duties between the two or more belligerents on the one hand, and, on the other, between the belligerents and neutral States, the question arises what kind of States are [Pg 91] legally qualified to make war and to become thereby belligerents. Publicists who discuss this question at all speak mostly of a right of States to make war, a jus belli. But if this so-called right is examined, it turns out to be no right at all, as there is no corresponding duty in those against whom the right is said to exist. ”

“ It is no wonder that it is against us, as we know, the German enmity is strongest now. It is right that it should be so. The force which binds our Empire together is the very antithesis of the force on which they alone rely. It is a moral force on which we rely. [Cheers.] Well, gentlemen, it is not for us who are putting on our armour and are urging you to put on yours to boast as those who are taking it off. ”

“ Till our opponents can prove that they have a right which is paramount to the public interest, we must persist in denying the right to thwart the success of the war. War has been declared by a law of the land ”

“ As between belligerents, the rights of war are substantially measured by their power. But as between neutrals, the mere power of the belligerents carries no right whatever. The whole scope and measure of the rights of a belligerent towards neutrals, are determined by the conceded or adjusted rules and limits of interference fixed by the law of nations. ”

“ According to these, a belligerent takes to itself a commerce with its own enemy which it denies to a neutral, on the ground of its aiding that enemy in the war. But reason revolts at such an inconsistency, and the neutral, having equal right with the belligerent to decide the question, the interests of our constituents, and the duty of maintaining the authority of reason, the only umpire between just nations, impose on us the obligation of providing an effectual and determined opposition to a doctrine so injurious to the rights of peaceable nations. ”

“ Among this last class are the powers of making offensive or defensive war, of concluding treaties and alliances, of controlling the immigration of foreigners, and of regulating commerce. By the laws of war, the sovereign acquires the right to spoil, plunder, and destroy the goods of his enemy, and possess his lands. ”

“ The third condition which, as we have said, must be fulfilled to make a war righteous is a right intention on the part of him who wages it; because, failing this, even when the other two conditions concur—to wit, authority and just cause—a faulty intention may render and does render the war unjust. ”

“ If there is a Democratic historian in this assembly, will he point out to me a single instance in the annals of the world, where, after a war, the victorious government did not claim the right, and where its right was not recognized, to dictate terms of peace to the defeated enemy? Why, look at two men fighting on the street. One has been assailed by another ”

“ To say that a capture which is out of the sanction and protection of the rights of war can nevertheless derive a validity from the rights of war, is surely a contradiction in terms. The rights of war can only taken place among enemies, and therefore a capture can give no right unless the property capture be the property of an enemy.'
5. The object of the war against rebellion as prosecuted by the government, and its policy repeatedly declared by the legislative and executive departments and followed by the judiciary, require the restoration of this property. ”