137 Hegel, Grundlinien der Philosophie des Rechts, § 324, p. 317 (English translation, p. 331).
138 See, e.g., Mabille, La Guerre, p. 139.
139 Nietzsche, Also sprach Zarathustra, i. 63.
140 Ruskin, Crown of Wild Olive, Lecture on War (Works, vi. 99, 105).
141 Lawrence, op. cit. p. 275 sq. Sidgwick, ‘Morality of Strife,’ in International Journal of Ethics, i. 13.
142 Geffken, quoted by Jähns, op. cit. p. 352, n. 2.
143 Jähns, op. cit. p. 307 sq.
It is said that, though Christianity has not abolished war, it has nevertheless, even in war, asserted the principle that human life is sacred by prohibiting all needless destruction. The Canon, ‘De treuga et pace,’ laid down the rule that non-resisting persons should be spared;144 and Franciscus a Victoria maintained not only that between Christian enemies those who made no resistance could not lawfully be slain,145 but that even in war against the Turks it was wrong to kill children and women.146 However, this doctrine of mercy was far in advance of the habits and general opinion of the time.147 If the simple peasant was often spared, that was largely from motives of prudence,148 or because the valiant knight considered him unworthy of the lance.149 As late as the seventeenth century, Grotius was certainly not supported by the spirit of the age when he argued that, “if justice do not require, at least mercy does, that we should not, except for weighty causes tending to the safety of many, undertake anything which may involve innocent persons in destruction”;150 or when he recommended enemies willing to surrender on fair conditions, or unconditionally, to be spared.151 Afterwards, however, opinion changed rapidly. Pufendorf, in echoing the doctrine of Grotius,152 spoke to a world which was already convinced; and in the eighteenth century Bynkershoek stands alone in giving to a belligerent unlimited rights of violence.153 In reference to the assumption that this change of opinion is due to the influence of the Christian religion, it is instructive to note that Grotius, in support of his doctrine, appealed chiefly to pagan authorities, and that even savage peoples, without the aid of Christianity, have arrived at the rule which in war forbids the destruction of helpless persons and captives.
144 Gregory IX. Decretales, i. 34. 2.
145 Franciscus a Victoria, op. cit. vi. 13, 35, 48; pp. 232, 241, 246 sq.
146 Ibid. vi. 36, p. 241.
147 Hall, Treatise on International Law, p. 395, n. 1.
148 d’Argentré, L’histoire de Bretagne, p. 391.
149 Mills, op. cit. p. 132.
150 Grotius, op. cit. iii. 11. 8.
151 Ibid. iii. 11. 14 sqq.
152 Pufendorf, De jure naturæ et gentium, viii. 6. 8, p. 885.
153 van Bynkershoek, Questiones juris publici, i. 1, p. 31: “Omnis enim vis in bello justa est.” Hall, Treatise on International Law, p. 395, n. 1.
The prevailing attitude towards war indicates the survival, in modern civilisation, of the old feeling that the life of a foreigner is not equally sacred with the life of a countryman. In times of peace this feeling is usually suppressed; it appears in no existing law on homicide, nor does it, generally, find expression in public opinion. It dares to disclose itself only in the form of national aggressiveness, under the flag of patriotism, or, perhaps, in the treatment of the aborigines of some distant country. The behaviour of European colonists towards coloured races only too often reminds us of the manner in which savages treat members of a foreign tribe. It was said that the frontier peasants at the Cape found nothing morally wrong in the razzias which they undertook against the Bushmans, without any provocation whatsoever, though they would consider it a heinous sin to do the same to their Christian fellow-men.154 In Australia there are instances reported of young colonists employing the Sunday in shooting blacks for the sake of sport. “The life of a native,” says Mr. Lumholtz, “has but little value, particularly in the northern part of Australia, and once or twice colonists offered to shoot blacks for me so that I might get their skulls. On the borders of civilisation men would think as little of shooting a black man as a dog. The law imposes death by hanging as the penalty for murdering a black man, but people live so far apart in these uncivilised regions that a white man may in fact do what he pleases with the blacks. … In the courts the blacks are defenceless, for their testimony is not accepted. The jury is not likely to declare a white man guilty of murdering a black man. On the other hand if a white man happens to be killed by the blacks, a cry is heard throughout the whole colony.”155
154 Waitz, Introduction to Anthropology, p. 314.
155 Lumholtz, Among Cannibals, p. 346 sqq. See also Mathew, in Jour. & Proceed. Roy. Soc. N. S. Wales, xxiii. 390; Breton, Excursions in New South Wales, p. 200 sq.; Stokes, Discoveries in Australia, ii. 459 sqq.
CHAPTER XVI
HOMICIDE IN GENERAL (concluded)