按键盘上方向键 ← 或 → 可快速上下翻页，按键盘上的 Enter 键可回到本书目录页，按键盘上方向键 ↑ 可回到本页顶部！
————未阅读完？加入书签已便下次继续阅读！
formidable increase of the power of another state （potestas
tremenda） by acquisition of territory。 Lesion of a less powerful
country may be involved merely in the condition of a more powerful
neighbour prior to any action at all； and in the state of nature an
attack under such circumstances would be warrantable。 This
international relation is the foundation of the right of
equilibrium； or of the 〃balance of power；〃 among all the states that
are in active contiguity to each other。
The right to go to war is constituted by any overt act of injury。
This includes any arbitrary retaliation or act of reprisal
（retorsio） as a satisfaction taken by one people for an offence
committed by another； without any attempt being made to obtain
reparation in a peaceful way。 Such an act of retaliation would be
similar in kind to an outbreak of hostilities without a previous
declaration of war。 For if there is to be any right at all during
the state of war； something analogous to a contract must be assumed；
involving acceptance on the side of the declaration on the other；
and amounting to the fact that they both will to seek their right in
this way。
57。 Right during War。
The determination of what constitutes right in war； is the most
difficult problem of the right of nations and international law。 It is
very difficult even to form a conception of such a right； or to
think of any law in this lawless state without falling into a
contradiction。 Inter arma silent leges。* It must then be just the
right to carry on war according to such principles as render it always
still possible to pass out of that natural condition of the states
in their external relations to each other； and to enter into a
condition of right。
*＇〃In the midst of arms the laws are silent。〃 Cicero。＇
No war of independent states against each other can rightly be a war
of punishment （bellum punitivum）。 For punishment is only in place
under the relation of a superior （imperantis） to a subject （subditum）；
and this is not the relation of the states to one another。 Neither can
an international war be 〃a war of extermination〃 （bellum
internicinum）； nor even 〃a war of subjugation〃 （bellum subjugatorium）；
for this would issue in the moral extinction of a state by its
people being either fused into one mass with the conquering state；
or being reduced to slavery。 Not that this necessary means of
attaining to a condition of peace is itself contradictory to the right
of a state； but because the idea of the right of nations includes
merely the conception of an antagonism that is in accordance with
principles of external freedom； in order that the state may maintain
what is properly its own； but not that it may acquire a condition
which； from the aggrandizement of its power； might become
threatening to other states。
Defensive measures and means of all kinds are allowable to a state
that is forced to war； except such as by their use would make the
subjects using them unfit to be citizens； for the state would thus
make itself unfit to be regarded as a person capable of
participating in equal rights in the international relations according
to the right of nations。 Among these forbidden means are to be
reckoned the appointment of subjects to act as spies； or engaging
subjects or even strangers to act as assassins； or poisoners （in which
class might well be included the so called sharpshooters who lurk in
ambush for individuals）； or even employing agents to spread false
news。 In a word； it is forbidden to use any such malignant and
perfidious means as would destroy the confidence which would be
requisite to establish a lasting peace thereafter。
It is permissible in war to impose exactions and contributions
upon a conquered enemy； but it is not legitimate to plunder the people
in the way of forcibly depriving individuals of their property。 For
this would be robbery； seeing it was not the conquered people but
the state under whose government they were placed that carried on
the war by means of them。 All exactions should be raised by regular
requisition； and receipts ought to be given for them； in order that
when peace is restored the burden imposed on the country or the
province may be proportionately borne。
58。 Right after War。
The right that follows after war； begins at the moment of the treaty
of peace and refers to the consequences of the war。 The conqueror lays
down the conditions under which he will agree with the conquered power
to form the conclusion of peace。 Treaties are drawn up； not indeed
according to any right that it pertains to him to protect； on
account of an alleged lesion by his opponent； but as taking this
question upon himself； he bases the right to decide it upon his own
power。 Hence the conqueror may not demand restitution of the cost of
the war； because he would then have to declare the war of his opponent
to be unjust。 And even although he should adopt such an argument； he
is not entitled to apply it； because he would have to declare the
war to be punitive； and he would thus in turn inflict an injury。 To
this right belongs also the exchange of prisoners； which is to be
carried out without ransom and without regard to equality of numbers。
Neither the conquered state nor its subjects lose their political
liberty by conquest of the country； so as that the former should be
degraded to a colony； or the latter to slaves； for otherwise it
would have been a penal war； which is contradictory in itself。 A
colony or a province is constituted by a people which has its own
constitution； legislation； and territory； where persons belonging to
another state are merely strangers； but which is nevertheless
subject to the supreme executive power of another state。 This other
state is called the mother…country。 It is ruled as a daughter； but has
at the same time its own form of government； as in a separate
parliament under the presidency of a viceroy （civitas hybrida）。 Such
was Athens in relation to different islands； and such is at present
（1796） the relation of Great Britain to Ireland。
Still less can slavery be deduced as a rightful institution； from
the conquest of a people in war； for this would assume that the war
was of a punitive nature。 And least of all can a basis be found in war
for a hereditary slavery； which is absurd in itself； since guilt
cannot be inherited from the criminality of another。
Further； that an amnesty is involved in the conclusion of a treaty
of peace is already implied in the very idea of a peace。
59。 The Rights of Peace。
The rights of peace are：
1。 The right to be in peace when war is in the neighbourhood； or the
right of neutrality。
2。 The right to have peace secured so that it may continue when it
has been concluded； that is； the right of guarantee。
3。 The right of the several states to enter into a mutual
alliance； so as to defend themselves in common against all external or
even internal attacks。 This right of federation； however； does not
extend to the formation of any league for external aggression or
internal aggrandizement。
60。 Right as against an Unjust Enemy。
The right of a state against an unjust enemy has no limits； at least
in respect of quality as distinguished from quantity or degree。 In
other words； the injured state may use… not； indeed any means； but
yet… all those means that are permissible and in reasonable measure in
so far as they are in its power； in order to assert its right to
what is its own。 But what then is an unjust enemy according to the
conceptions of the right of nations； when； as holds generally of the
state of nature； every state is judge in its own cause？ It is one
whose publicly expressed will； whether in word or deed； betrays a
maxim which； if it were taken as a universal rule； would make a
state of peace among the nations impossible； and