[亨利梅因：国际法Lecture6]LECTURE VI. THE DECLARATION OF PARIS.One point of considerable interest in International Law is the very different degree of durability which the various parts...+阅读

It is suggested by several of the international writers， and it is probable， that armistices first arose from the truce or truces of God which were repeatedly proclaimed by the Church. These truces took many and very singular forms. Thus one famous truce of God was to begin every Wednesday at sunset， and last till the following Monday at sunrise. It was to continue from Advent to the octes of Epiphany， and from Quinquagesima Sunday to the octes of Easter. If any person broke the truce and refused to give satisfaction he was exmunicated， and after the third admonition the bishop who exmunicated him was not to admit him into munion under the penalty of deprivation. The truce was confirmed at many councils， and especially at the Lateran Council of 1179. Some of the regulations were extended into England， and Wednesday and Friday were set apart as days for keeping peace. It is exceedingly likely that these temporary and limited truces accustomed the warlike munities of those days to temporary suspensions of hostilities， and armistices manifestly grew into considerable four. But they also ge rise， and indeed they give rise still， to a number of rather difficult questions. We find a greet number of rules laid down as to what belligerent parties might do or might not do during an armistice. The views taken of these duties in modern times are decidedly contradictory. On the one side it is held that all equivocal acts of hostility should be abstained from during an armistice whether they e， or do not， within the deion of acts capable of being interrupted by the enemy； while on the other hand it is contended that， according to the practice of modern warfare， belligerents he a perfect right to alter the disposition of their troops， construct entrenchments， repair breaches， or do any acts by which they may think fit to prepare themselves for the resumption of hostilities. The violation of an armistice by either of the contending parties gives to the other the right to put an end to it； but its violation by private individuals only confers the right to demand the punishment of the guilty persons. The question is one of great practical difficulty， and in all the Manuals the advice is given that the greatest caution should be observed in the case of an armistice to specify the acts which are or are not to be permitted during its continuance.

Another question which， evidently， was thought to present great difficulties， was the date of the mencement and the time of the termination of an armistice. Supposing it to be made for a certain number of days —— that is， from the 1st of May to the 1st of August —— questions he been raised whether the days named are both included or excluded. The usual mode of reckoning in England as legal time is to include the first day and exclude the last. （consequently， in the above-mentioned case， according to English law， the truce begins at the moment on which the 30th of April ends and ceases at the moment at which the 31st of July ends. To oid difficulties， it should be stated from the 1st of May inclusive to the 1st of August inclusive， if it is intended to include the 1st of August； or better still to begin at a certain hour on one day， and to end at a certain hour on another. In the case of a short armistice the number of hours should be stated； and it is advisable in all cases where an armistice has been arranged， to agree to indicate by some signal for example， the hoisting of a flag or the firing of a cannon —— both the mencement and the termination of the armistice. An armistice， it is to be remembered， is only a qualified peace， and the state of war continues， though active hostilities are suspended. This anomalous state of things leads， in the absence of express stipulation， to considerable difficulty in ascertaining what is allowed to be done or continued to be done. Apart from particular stipulation， the general rule seems to be that a belligerent cannot take advantage of an armistice to do any aggressive act which but for the armistice he could not he done without danger to himself. For example， in the case of an armistice between a besieging army and a besieged town， the besiegers must not continue their works against the town， and the besieged are forbidden to repair their walls， raise fresh fortifications， or introduce succours or reinforcements into the town. The last dangerous question which arose in Europe， arose on one of the class of terms which I he been examining.

Before closing this lecture it win be useful to note the substance of the statements made in the modern Manuals in respect to a number of terms which are in much use in this part of military operations， but which are very loosely employed by civilians and even by historical writers. First as to what is called a Capitulation. A capitulation is an agreement for the delivery of a besieged place or forces divided in the field into the hands of the enemy. The manders on either side are invested with popover to agree to the terms of a capitulation， inasmuch as the possession of such powers is necessary to the proper exercise of their functions. On the other hand， the extent of their powers is limited by the necessity for their exercise. In the surrender of a place the questions at issue are the immediate po

ssession of the place itself， and the fate of the garrison. A capitulation， therefore， must be limited to these questions. It may declare that the garrison is to surrender unconditionally as prisoners of war， or to be entitled to march out with all the honours of war. It may also provide that the soldiers prising the garrison are not to serve again during the war. Further conditions for the protection of the inhabitants and of their privileges， and for their immunity from pillage or contribution， may fairly be put into a capitulation. A stipulation in a capitulation to the effect that the garrison should never again bear arms against the forces of the conquering state， or that the sovereignty of the town should change hands， would be invalid， inasmuch as powers for such extensive purposes belong only to the sovereign power of the State， and cannot ever be presumed to be delegated to inferior officers.

A few words will not be thrown away on Flags of Truce. Such a flag can only be used legitimately for the purpose of entering into some arrangement with the enemy. If adopted with a view surreptitiously to obtain information as to the enemy's forces， it loses its character of a flag of truce and exposes its bearer to the punishment of a spy. Great caution， however， and the most conclusive evidence are held to be necessary before the bearer of such a flag can be convicted as a spy. The bearer of a flag of truce， at the same time， should not be allowed without permission to approach sufficiently near to secure any useful information. When an army is in position， the bearer of a flag of truce should not， without lee， be permitted to pass the outer line of signals， or even to approach within the range of their guns.

When a flag of truce is sent from a detachment during an engagement， the troop from which it is sent should halt and cease firing. The troop to which it is sent should， if the mander is willing to receive it， signal to that effect and also cease firing； but it must be understood that firing during an engagement does not necessarily cease on the appearance of a flag of truce， and that the parties municating with such flags cannot plain if those who sent them should carry on the firing. When it is intended to refuse admission to a flag of truce， the bearer should， as soon as possible， be signalled to retire； and if he do not obey the signal， he may be fired upon.

A few words may be usefully added on other terms of the art of war which are allied to those which I he been defining. A Cartel is an engagement for the exchange of prisoners of war. A cartel ship is a ship missioned for the exchange of prisoners. She is considered a neutral ship， and must not engage in any hostilities or carry implements of war except a signal gun. A Safe-conduct or Passport is a document given by the mander of a belligerent force enabling certain persons to pass， either alone or with servants and effects， within the limits occupied by the force of such manding officer. In the so-called Schnabele case which arose on the frontier of France and Germany， you may remember， it was decided there might be an implied safe-conduct. The expression 'passport' is usually applied to persons， and 'safe-conduct' both to persons and things. A safe-conduct for a person is not transferable， and es to an end at the date stated， unless the bearer is detained by sickness or other unoidable cause， in which case it terminates on the cessation of the cause. A safe-conduct may be revoked if it is injurious to the State； that is， an officer preparing for a great expedition may revoke the safe-conduct of a person who would by means of such safe-conduct be able to carry information to the enemy. In such case， however， he must give time and opportunity to the bearer to withdraw in safety. A safe-conduct， however， for goods admits of their being removed by some person other than the owner， unless there is some specific objection against the person employed. A Safe-guard is a guard posted by a manding officer for the purpose of protecting property or persons against the operations of his own troops. To force such a guard is by English law a military offense of the grest character， and our Army Act makes it punishable by death.

You may remember that not many months ago serious uneasiness was felt throughout Europe on account of an incident on the new French and German frontier. A French official， belonging by birth to the former German population of provinces now French， was found on territory now German， under circumstances which made him liable to arrest under a German law. His defence was， that on that and several past occasions he had been invited by the German frontier officials to help in settling border questions. The German officials asserted that， however that might be， he was on the present occasion engaged in acts of hostility to Germany. After some diplomatic correspondence， the German Government laid down that， if German officials invited a French functionary to cross the frontier into German territory for any reason， he enjoyed an implied safe-conduct to his home in France， and therefore M. Schnabele was released. The controversy， therefore， ended in the establishment of the point that a safe-conduct may be not only express but implied.

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