第3章 ITS ORIGIN AND SOURCES.(3)
- International Law
- Sir Henry James Sumner Maine
- 933字
- 2016-03-02 16:37:42
Take one examplethe practices concerned with the treatment of the woundedand of prisonersAt first there are signs which cannot be mistaken thatthe prisoner and the wounded man are not only killed but tortured beforebeing put to deathThe still savage races from whom most has been learnedas to the original usages and conditions of men are the North American Indiansand the aborigines of AustraliaThat the North American Indians torturedtheir prisoners before putting them to death is one of a number of factsvery familiar to us which have made their way into literatureOne branchof this racethe Mexicansattained to a certain degree of civilization,but it is also matter of familiar knowledge that the Mexicans put their prisonersto death with the greatest cruelty almost in hecatombsand that the practicewith them had acquired a religious sanctionAs to the Australiansit hasbeen observed that they have inherited the animal instinct which leads themeven to torture their game after it is captured and before it is killed.
The English school-boy has often been shocked by the concluding passage ina Roman triumph when the gallant enemywho had been led in the procession,was not only killed but floggedWhen we come to medieval war these crueltieshave disappearedandthough the suffering of the wounded and of prisonerswas greatit seems to have been due rather to ignorance and carelessnessthan to crueltyIt is said that at the battle of Agincourt only one manwho had any knowledge of medicine or surgery was presentthe functionarywho was the predecessor of the official now known as the King's Staff Surgeon.
The only influences which at the beginning of history seem to put an endto war on a large scale are influences which have been much maligned andto which some injustice has been doneThe conventionally revised historyof the world begins with the formation of certain great empiresthe Egyptian,the Assyrianthe Medianand the PersianNo doubt they were a result ratherof man's rapacity than of his humanityThe object of their founders wasto gratify ambitious display on a great scale and to increase the area fromwhich they could take their taxesbut nevertheless no one could say howmuch war they extinguished by the Prohibitionwhich they undoubtedly carriedoutof hostilities among the various sub-divisions of their subjectsThelatest of these Empires which conferred similar benefits on mankind in theWest was the Roman EmpireDuring the long Roman peace not only did bloodshedpractically ceasebut the equality of the sexesthe mitigation of slavery,and the organization of Christianity made their appearance in the world.
Whenhoweverone of these empires breaks upthe old suffering revives.
'Give peace in our timeO Lord,is a versicle in the Anglican Liturgy whichis said to date from the rupture of the Empirethat is from the time whenthe Empire was breaking up into kingdoms occupied by barbarian racesItis obviously a prayer for an unusual and unhoped-for blessingIn the Eastthe amount of bloodshed prevented by the Chinese Empire is incalculable.
Independently of any other benefitswhich the Indian Empire may confer onthe collection of countries which it includesthere is no question thatwere it to be dissolvedor to fall into the hands of masters unable to governitthe territories which make it up would be deluged with blood from endto endAs the history of modern Europe proceeds there are moments when oldcontroversies seem to have been exhausted and fighting is to a certain extentrelaxedbut then some great difference arises between men -the wars ofreligionfor examplecommence -and Europe is again full of bloodshed.
There are other facts at first sight of smaller apparent importance whichare too little noticedAt all timesamid truculent wars ever reviving,there are signs of a conscious effort to prevent war or to mitigate itManhas never been so ferociousor so stupidas to submit to such an evil aswar without some kind of effort to prevent itIt is not always easy to readthe tokens of his desire and endeavour to obviate war or to diminish itscrueltiesit takes some time to interpret these signsbut when attentionis directed to them they are quite unmistakableThe number of ancient institutionswhich bear the marks of a design to stand in the way of warand to providean alternative to itis exceedingly greatThere are numerous old formsof trial discoverable in a great number of countries and in a great numberof races in whichamong the ceremonial acts of the partiesyou can seeevidence of a mimic combatThe Roman sacramentum is the best and most familiarinstance of thisWhat we call a judicial proceeding is obviously takingthe place of a fightAnother expedientwhich is a good deal misunderstood,is the pecuniary fine which was imposed sometimes on the individual authorof a homicidesometimes on his tribethe Wehr Geld of the GermanstheEric fine of the ancient IrishI have seen it represented as evidence ofthe slight value attached by these races to human lifeHere (it is said)is a mere money compensation for killing an enemyBut this is a misapprehensionof the amount of the punishment inflictedIf we had learned that a man whotools the life of another was deprived of the whole of his land we should,I supposehave been of opinion that the punishment was at all events nottrivialBut one of the new ideas which we owe to the ancient Irish law,the Brehon lawis an adequate conception which we for the first time gainof the importance to mankind of moveable propertyCapitalecattlecapital,a long descended termwas the imperatively required implement for the cultivationof landat a time when land was plentiful and perhaps common and undivided.
The necessity imposed on the family or tribe of a man who had taken a lifeof paying a portion of this jealously guarded subject of ownership to anotherof the ancient groups was not a slight but an exceedingly heavy penalty.