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亨利-梅因:国际法Lecture 1

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  The eminent man who founded the Whewell Professorship of International Law laid an earnest and express injunction on the occupant of this chair that he should make it his aim, in all parts of his treatment of the subject, to lay down such rules and suggest such measures as might tend to diminish the evils of war and finally to extinguish war among nations. These words of Dr. Whewell, which occur in his vill and in the statute regulating his professorship, undoubtedly contain both a condemnation and a direction. International Law in its earlier stages was developed by a method of treatment which has been applied to many important subjects of thought when their growth has reached the point at which they are included in books to theology, to morals, and even, in some cases, to positive private law. Writers of authority who have gained the ear of the learned and professional classes follow one another in a string, each commenting on his predecessor, and correcting, adding to, or devising new applications for, the propositions he has laid down. For a considerable time International Law, as the words are commonly understood, had to be exclusively collected from the dicta of these authoritative writers, who, however, differed from one another materially in their qualities and defects. At the head and at the foot of the list two names are often conventionally placed, first that of Grotius, who was born in 1583, and died in 1645, and last that of Vattel, who was born in 1714 and died in 1767. Of both these writers it may be confidently asserted that the rules and propositions which they laid down did tend to diminish the evils of war and may possibly help to extinguish some day war among nations. But of the residue of this class of publicists, it must be confessed that some were superficial, some learned and pedantic, some were wanting in clearness of thought and expression, some were little sensitive to the modifications of moral judgment produced by growing humanity, and some were simply reactionary. As these lectures proceed I may be able to point out to which class, and for what reasons, the writer immediately before us belongs.

  Meantime I may be allowed to pause and say that at first sight it seems hopeless to discharge in our day the responsibility which Dr. Whewell has laid on his professor. What teacher of Law, public or Private, considering what we see around us, can hope to suggest the means of controlling, and still less of weakening and destroying, the prodigious forces which seem now to make for war? The facts and the figures alike appear to point to an enormous growth of these forces in volume and strength. The middle year of this century was the thirty-fifth of the long peace which began in 1815 —— a peace which was not quite unbroken, for there were some intervals of petty local war, but which was as long as any which existed since Modern Europe began, and a peace which was fruitful in every sort of remarkable result. That generation may be said to have had a dream of peace. It looked forward to a time when, in the words of the great poet who was then beginning to exercise influence over it, 'The war drum should beat no longer and the battle flag should be furled.' And in 1851 an event occurred which has since then been somewhat vulgarized by repetition, the establishment of the first of the Exhibitions of Art and Industry. It seriously added to the belief that wars had ceased; strife in arms was to be superseded by competition in the peaceful arts, controversy was to be conducted by literary agencies and no longer by arms. As a poet and prose-writer then still living put it, 'Captain Pen had vanquished Captain Sword.'

  But the buildings of this Temple of Peace had hardly been removed when war broke out again, more terrible than ever. First came the Crimean War in which this country was a principal belligerent; then followed the frightful struggle of the Indian Mutiny in which England was solely concerned. Shortly afterwards the Government of the new French Empire attacked the Governments established in Italy by the Treaty of Vienna, and soon the whole of the Italian arrangements set up by that Treaty were destroyed. Before long, the United States of America, supposed to be preserved from war by a sort of homely common sense, were torn asunder by the war of secession, which, proportionately to its continuance, was the costliest and bloodiest of wars. In no long time the German arrangements which were established at Vienna fell in pieces through a quarrel between the chief German powers, Almost the other day there came the French and German war and the struggle between the Russians and the Turks —— contests which unveiled the bases of quarrels of which we have not seen the end: namely, the historical rivalry between the French and Germans, and the most hopeless of all the problems which the civilised world has to solve, the contest provoked by the inevitable break-up of the Turkish Empire.

  The immediate causes of these wars can of course be traced; but to believers in the permanent return of peace they were a bitter deception. Even more alarming than the return of war was the intrusion of war into peace. After the defeat of Jena, the limitation of their army which the Emperor Napoleon forced upon the Prussians produced a system of which the effect was to teach the Western world a new method of military organization. The whole population of a country was passed through the ranks of armies. As in the most ancient days, the young men primarily fought, after them came the next above them in age, after these their elders; all of them knew, and now know, the use of arms, and nobody escapes the necessity for fighting in particular contingencies, except either the very old or the very young. The figures are exceedingly astonishing. When Russia was rising to the height of military reputation which she gained in 1812 and 1813, she had always a difficulty in bringing as many as 100,000 men into the field; now she is said to contain six millions of armed men. The most energetic effort which was ever made by France to arm her population was in 1813, after the retreat from Moscow and before Napoleon's surprising campaigns within the limits of France herself were commenced. The number of men which Napoleon with all his lieutenants led to combat from France, Italy, and the Confederation of the Rhine (to which were added the disengaged garrisons of French soldiers) was almost exactly equal to the number of men which France at this moment regards as that of her army when on a strictly peace footing.

  'War,' says Grotius, in a remarkable passage in which he shows his dissent from the opinions of the preceding age, 'war is not an art.' Nowadays not only is it an art requiring a long apprenticeship and equipped with a multitude of precise rules, but besides this it is the mother of new arts. The whole science and art of explosives, which has occupied the inventive genius of civilised lands for about twenty years, is of warlike origin; and an apparently most peaceful art, hydraulic engineering, is said to owe its remarkable modern development to the study of the means of lifting and working great naval guns. Guns of long range were first tried in the field during the Crimean war, when they were on the whole pronounced to be a costly failure. But we have some very remarkable evidence at this moment of what they have come to, supplied partly by a Committee of the House of Commons appointed to consider the army estimates, and partly by the report of a Royal Commission appointed to investigate the subject of naval patterns, or in other words, the mode in which new inventions are dealt with by the civil and military officers of our government. The Director-General of Artillery stated to the Parliamentary Committee that the increase in army estimates which was due to the advance of military science, began in 1882-83, when breech-loading guns were finally adopted. The cost of the steel gun was a third more than that of the old wrought-iron tube, but this cost increased till in the case of the 100-ton gun it exceeded 19,000 l., while the cost of the projectile, which once was rather over 7 l., now reaches at least 150 l. All the treasure and all the labour and all the skill expended nowadays on ships and fortifications appear to end in this. Each of the most modern guns is likely to cost 20,000 l. It fires a charge of powder and shot weighing about a ton and a quarter. Each charge costs 150 l. It thus happens that one of the large guns used in the ships in which the great naval victories of England were won at the end of the last century and the beginning of the present did not cost much more than a few charges of powder and shot fired off in a gun of the present day. Nor is this all the story. After a gun of the present day has fired 150 shots it is so damaged by the labour and strain it has undergone that it must be repaired. This short effective existence is the result of the extreme delicacy with which it has been endowed by modern art. I repeat, then, my question when the forces at work are so enormous, how shall they be controlled, diminished, or reduced by a mere literary agency?

  Some consolation may be found in a position which it is all the more necessary to insist upon because it is not quite in harmony with the assumptions made by some famous writers, presently to be discussed, who are more associated than any others with the origin of International Law. Most of them thought that mankind had started from a condition of innocent peace. It was man's depravity which had interrupted this state and had produced virtually universal and unceasing war. There can be no question that this proposition reverses the truth. It is not peace which was natural and primitive and old, but rather war. War appears to be as old as mankind, but peace is a modern invention. Our intelligence is only just beginning to enable us to penetrate the clouds which rest on the farther verge of history, but what does seem clear to trained observation is the universal belligerency of primitive mankind. Not only is war to be seen everywhere, but it is war more atrocious than we. with our ideas, can easily conceive.

  Take one example, the practices concerned with the treatment of the wounded and of prisoners. At first there are signs which cannot be mistaken that the prisoner and the wounded man are not only killed but tortured before being put to death. The still savage races from whom most has been learned as to the original usages and conditions of men are the North American Indians and the aborigines of Australia. That the North American Indians tortured their prisoners before putting them to death is one of a number of facts very familiar to us which have made their way into literature. One branch of this race, the Mexicans, attained to a certain degree of civilization, but it is also matter of familiar knowledge that the Mexicans put their prisoners to death with the greatest cruelty almost in hecatombs, and that the practice with them had acquired a religious sanction. As to the Australians, it has been observed that they have inherited the animal instinct which leads them even 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 in a Roman triumph when the gallant enemy, who had been led in the procession, was not only killed but flogged. When we come to medieval war these cruelties have disappeared, and, though the suffering of the wounded and of prisoners was great, it seems to have been due rather to ignorance and carelessness than to cruelty. It is said that at the battle of Agincourt only one man who had any knowledge of medicine or surgery was present, the functionary who 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 end to war on a large scale are influences which have been much maligned and to which some injustice has been done. The conventionally revised history of the world begins with the formation of certain great empires, the Egyptian, the Assyrian, the Median, and the Persian. No doubt they were a result rather of man's rapacity than of his humanity. The object of their founders was to gratify ambitious display on a great scale and to increase the area from which they could take their taxes; but nevertheless no one could say how much war they extinguished by the Prohibition, which they undoubtedly carried out, of hostilities among the various sub-divisions of their subjects. The latest of these Empires which conferred similar benefits on mankind in the West was the Roman Empire. During the long Roman peace not only did bloodshed practically cease, but the equality of the sexes, the mitigation of slavery, and the organization of Christianity made their appearance in the world. When, however, one of these empires breaks up, the old suffering revives. 'Give peace in our time, O Lord,' is a versicle in the Anglican Liturgy which is said to date from the rupture of the Empire, that is from the time when the Empire was breaking up into kingdoms occupied by barbarian races. It is obviously a prayer for an unusual and unhoped-for blessing. In the East the amount of bloodshed prevented by the Chinese Empire is incalculable. Independently of any other benefits, which the Indian Empire may confer on the collection of countries which it includes, there is no question that were it to be dissolved, or to fall into the hands of masters unable to govern it, the territories which make it up would be deluged with blood from end to end. As the history of modern Europe proceeds there are moments when old controversies seem to have been exhausted and fighting is to a certain extent relaxed, but then some great difference arises between men —— the wars of religion, for example, commence —— and Europe is again full of bloodshed.

  There are other facts at first sight of smaller apparent importance which are too little noticed. At all times, amid truculent wars ever reviving, there are signs of a conscious effort to prevent war or to mitigate it. Man has never been so ferocious, or so stupid, as to submit to such an evil as war without some kind of effort to prevent it. It is not always easy to read the tokens of his desire and endeavour to obviate war or to diminish its cruelties; it takes some time to interpret these signs; but when attention is directed to them they are quite unmistakable. The number of ancient institutions which bear the marks of a design to stand in the way of war, and to provide an alternative to it, is exceedingly great. There are numerous old forms of trial discoverable in a great number of countries and in a great number of races in which, among the ceremonial acts of the parties, you can see evidence of a mimic combat. The Roman sacramentum is the best and most familiar instance of this. What we call a judicial proceeding is obviously taking the place of a fight. Another expedient, which is a good deal misunderstood, is the pecuniary fine which was imposed sometimes on the individual author of a homicide, sometimes on his tribe, the Wehr Geld of the Germans, the Eric fine of the ancient Irish. I have seen it represented as evidence of the slight value attached by these races to human life. Here (it is said) is a mere money compensation for killing an enemy. But this is a misapprehension of the amount of the punishment inflicted. If we had learned that a man who tools the life of another was deprived of the whole of his land we should, I suppose, have been of opinion that the punishment was at all events not trivial. But one of the new ideas which we owe to the ancient Irish law, the Brehon law, is an adequate conception which we for the first time gain of the importance to mankind of moveable property. Capitale, cattle, capital, a long descended term, was the imperatively required implement for the cultivation of land, at 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 life of paying a portion of this jealously guarded subject of ownership to another of the ancient groups was not a slight but an excee

  dingly heavy penalty. It is remarkable further that, among the tribal groups of which society was primitively or anciently made up, the observance of good faith seems to have been more strict than among individuals. There is some evidence of want of respect for sanctity of agreement among individuals, but not so amid tribes. The ancient monuments which are open to us no doubt generally recount victories and defeats, but they also record treaties. Treaties of great complexity and antiquity are found among the surviving savages. Also we have a glimpse of systems of what would now be called International Law; that is to say of rules enforced with a regular ceremonial by trained official agents. Such was the jus fetiale of the Romans. And it is to be noted that there are certain departments of this law in which stricter provision teeny to have been made than were at the outset found in modern days in what is technically called the Law of Nations; for example, the extremely express and severe rules which regulate declarations of war.

  In modern days the name of International Law has been very much confined to rules laid down by one particular class of writers. They may be roughly said to begin in the first half of the seventeenth century, and to run three parts through the eighteenth century. The names which most of us know are first of all that of the great Hugo Grotius, followed by Puffendorf, Leibnitz, Zouch, Selden, Wolf, Bynkershoek, and Vattel. The list does not absolutely begin with Grotius, nor does it exactly end with Vattel, and indeed as regards the hither end of this series the assumption is still made, and I think not quite fortunately, that the race of law-creating jurists still exists. It is further to be noted that before international law fell into the hands of these writers it had like most other subjects of thought attracted the attention of the Church. There is a whole chapter of the law of nations which is treated of by Roman Catholic theological writers, and a slight difference which distinguishes their use of technical expressions, such for example as 'law of nature' and 'natural law,' occasionally perplexes the student of the system before us.

  The rules, however, laid down by the writers I have named and a few others, the nature of their system, and the degree in which it is settled, will occupy much of our time in the present or future courses of lectures. In the first place their system is that conventionally known as International Law; and secondly in them we find, not only the writers at whom Dr. Whewell's implied condemnation is aimed, but the writers whose works acted on the spirit of belligerency like a charm, who did prevent wars and mitigate them, and did something to prepare a time when war should be do more. I said something a few minutes ago of the erect of great agglomerations of countries in territorial empires in producing peace. When the Roman Empire had broken up, after a while the new European world was long protected against incessant war by its surviving authority. Its very shadow gave as much peace as was to be had. The pope or the emperor, each a continuation of the Caesars, served as a court of arbitration and did compose disputes and prevent wars. Too much influence must not, I have to warn you, be attributed to their influence. Their sphere was more particularly Italy; but Ferrari, an historian who has written both in Italian and French, and who has conceived the expedient of mapping out Italian history into periods according to the nature of the revolutions which occurred in the Italian States, has counted among these states no less than 7,000 revolutions, each with a war of its own, small or great. Still the emperor and the pope, and yet more the pope than the emperor, were unquestionably, on the whole, makers of peace; and sometimes the place of the pope was taken by a prince of acknowledged sanctity, like St. Louis of France. But the outbreak of the great wars of religion, the wars between (Catholic and Protestant, put an end to these pacific influences. The pope, of course, was necessarily on one side among the combatants, and on the whole the emperor was on the same side. Hence it came about that the great international jurists belonged to the smaller states and were wholly Protestants. The International Law of the Roman Catholic doctors had fallen into suspicion and finally into disrepute. A law with a new sanction was required if states were to obey it, and this is what the new jurists produced. The effect was a rapid mitigation of wars and a rapid decrease in their frequency.

  It is very important that we should ask ourselves what is the true place in legal history of the set of rules called International Law. It will be found that the proper answer to this question involves replies to several less general questions which are nowadays put by critical writers, or which spontaneously suggest themselves to the mind of the student, as to the nature and authority of the famous system before us. What, then, is its place in the general development of European jurisprudence? We may answer pretty confidently that its rapid advance to acceptance by civilised nations was a stage, though a very late stage, in the diffusion of Roman Law over Europe. Those of you who have paid any attention to the history of law are aware that I have now touched upon a subject of much interest, and of some difficulty. In considerably less than a century, all the ideas of learned men on the history of Roman Law in the western world have undergone change. A hundred years ago, the virtually universal assumption of Juridical writers was that, when the pressure of invading barbarous races had broken up the territories of the Roman Empire into separate kingdoms, the Roman Law was lost, as the Empire itself was supposed to have been lost. It was indeed plain that, if this were so, the Roman Law must in some way or other, and at some time or other, have undergone a revival, and this was explained by fables, like the story of the discovery of a copy of Justinian's Pandects at the siege of Amalfi.

  More recent learning, learning which on some points is extremely recent, has taught us that many of these assumptions are doubtful and many others are certainly false. The Roman Empire was never wholly lost, nor the Roman Law either. The Empire, with Caesar at the head of it, and with some institutions associated with it which even pointed back to the Republican Roman period, survived to be destroyed by Napoleon Bonaparte, though no doubt it was ever decaying and sinking into a heap of ceremonies, names, and forms. The Roman Law, on the other hand, was practically everywhere, and its tendency was, not to decay, but to extend its area and enlarge its authority. The systems of local custom which first established themselves in the new Europe betray a large ingredient of Roman Law it many portions of their structure. At a later date, writers of treatises professing to set forth the whole, or a definite part, of the institutions of particular countries, are found to have borrowed considerable fragments of books which the Romans regarded as of authority. And then we seem to see a whole flood of Roman jurisprudence spreading to the ends of civilised Europe.

  No one explanation can be offered of these facts. In some countries, the Roman Law probably never ceased to be obeyed, and the foreign element in its institutions was the barbarous usage. In others the reverse of this occurred; the basis, at least the theoretical basis, of the institutions was barbarous, but the Roman Law, still known to some classes, was rapidly absorbed. A barbarous system of law is always scanty, and if it be contiguous to a larger and snore extensive system, the temptation in practitioners to borrow from this is irresistible. Only the other day, this process was full in view in British India. The bulk of the Native Indian law was extremely narrow. In whole departments of affairs, no rules were found to settle controversies which naturally rose up. And the result was that the bulk of Native Indian law was gradually becoming English through the filtration of rules into it from the more extensive system by its side. And this went on, until both the English and the purely Native law were gradually superseded by the new Indian Codes. We are not, however, to suppose that the Roman Law came to be received by European communities through any process resembling legislation. In the history of law, it is always essential to keep in mind the fact that legislatures are of very recent appearance in modern Europe. The earliest attempt to distinguish clearly between legislative and executive power, between legislative and executive action, has been traced to an Italian writer of the fourteenth century. The powerful bodies from which many of the legislatures are descended, assemblies of great men advising and controlling kings, were not true legislatures themselves. They assisted occasionally in the making of laws, but that was because law-making was recognized as important business, and the duty of these Councils, Parliament or States-General, was to advise the King in all important business. In truth, far the most influential cause of the extension of particular laws and of particular systems of law over new areas was the approval of them by literate classes, by clergymen and lawyers, and the acquiescence of the rest of the community in the opinions of these classes. When then we are asked by what legislative authority International Law came to be adopted so as to make it binding on particular communities, we should rejoin that the same question must first be put respecting the extension of Roman law and of every other system of law which, before the era of legislatures, gave proof of possessing the same power of self-propagation.

  A great part, then, of International Law is Roman Law, spread over Europe by a process exceedingly like that which, a few centuries earlier, had caused other portions of Roman Law to filter into the interstices of every European legal system. The Roman element in International Law belonged, however, to one special province of the Roman system, that which the Romans themselves called Natural Law or, by an alternative name, Jus Gentium. In a book published some years ago on 'Ancient Law' I made this remark: 'Setting aside the Treaty Law of Nations, it is surprising how large a part of the system is made up of pure Roman law. Wherever there is a doctrine of the Roman jurisconsults affirmed by them to be in harmony with the Jus Gentium, the Publicists have found a reason for borrowing it, however plainly it may bear the marks of a distinctively Roman origin.' I must observe, however, that the respect for natural law as the part of the Roman Law which had most Cairns on our reverence did not actually begin with the international lawyers. The habit of identifying the Roman law with the Law of Nature, for the purpose of giving it dignity, was of old date in Europe. When a clergyman or a lawyer of an early age wishes to quote the Roman Law in a country in which its authority was not recognised, or in a case to which Roman Law was not allowed to apply, he calls it 'Natural Law.' When our Edward III laid a document before the Pope for the purpose of establishing his claim to the French throne, and of contending that the descendants of women may succeed to the property or throne of a male ancestor, he spoke of himself as arguing on Natural Law; though in point of fact the power of women to transmit rights of inheritance to their descendants was pure Roman Law of recent origin, and was not specially connected in any way with the Law of Nature.

  But though the founders of the system which lies at the basis of the rules now regulating the concerns of states inter se were not the first to describe the Law of Nature and the Law of Nations, Jus Nature, Jus Gentium, as the most admirable, the most dignified portion of Roman Law, they speak of it with a precision and a confidence which were altogether new. They look upon it as perfectly determinable if the proper tests be applied, partly on the authority of express texts of Roman Law, partly by a process of inference from a great mass of recorded precedents. Its fitness for international purposes they regard as a discovery of their own, and some writers of their day speak of the system as the new science. No more doubt of its reality seems to have been entertained than (let us say) of the English common law by an English mediaeval lawyer. It is sometimes difficult to be quite sure how Grotius and his successors distinguished rules of the Law of Nature from religious rules prescribed by inspired writers. But that they did draw a distinction is plain. Grotius's famous work, the 'De Jure Belli et Pacis,' is in great part composed of examples supplied by the language and conduct of heathen statesmen, generals, and sovereigns, whom he could not have supposed to know anything of inspired teaching. If we assume him to have believed that the most humane and virtuous of the acts and opinions which he quotes were prompted by an instinct derived from a happier state of the human race, when it was still more directly shaped and guided by Divine authority, we should probably have got as near his conception as possible. As time has gone on, some parts of this basis of thought have proved to be no longer tenable. Grotius greatly overrated the extent of recorded history and, still more, the accuracy of the record. The very conception from which he started, the conception of a real and determinable Law of Nature, has not resisted the application of modern criticism. To each successive inquirer, the actual childhood of the human race looks less and less like the picture which the jurists of the seventeenth century formed of it. It was excessively inhuman in war; and it was before all things enamoured of legal technicality in peace. But nevertheless the system founded on an imaginary reconstruction of it more and more calmed the fury of angry belligerency, and supplied a framework to which more advanced principles of humanity and convenience easily adjusted themselves.

  The effects of the 'De Jure Belli et Pacis,' both in respect of its general influence and of the detailed propositions which it laid down, were exceedingly prompt and have proved extremely durable. At about the middle of his reign Louis XIV of France adopted two measures by which he was thought to have carried the severity of war to the furthest point. He devastated the Palatinate, expressly directing his officers to carry fire and sword into every corner of the province, and he issued a notice to the Dutch, with whom he was at war, that, as soon as the melting of the ice opened the canals, he would grant no more quarter to his Dutch enemies. The devastation of the Palatinate has become a proverb of savageness with all historians, though fifty years earlier it might at most have been passed as a measure of severity, or might even have been defended; but the proclamation to the Dutch called forth a burst of execration from all Europe, and the threat to refuse quarter was not acted upon. The book of Grotius was making itself felt, and the successors of Grotius assure us that it was his authority which deterred the French king and the French generals from the threatened outrage.

  But there is other evidence of the respect paid to the details of his system. Among the most interesting legal products of our day are the Manuals of the usages of war which a great number of civilised states are now issuing to their officers in the field. The Manual prepared for the United States is the oldest of them, but most of them have followed the attempt to form a Code of Land War which was made at the Conference at Brussels in 1874, an attempt which miscarried principally through recollections of the course of the great Franco-German war in 1870-1871. There is very much that is remarkable in all this private codification, as I propose to show in one or two lectures which will follow; but perhaps the most singular feature of the Manuals is the number of rules adopted in them which have been literally borrowed from the 'De Jure Belli et Pacis,' and specially from its third book. Remembering what Grotius himself says of the condition in which he found the law and usage of war when be began to write of it, and recalling what we learn from historical sources of the wars of succession and the wars of religion, we may well believe Vattel, the Swiss Jurist, a contemporary of the Seven Years' War and of Frederick the Great, when he tells us that what struck him most in the wars of his day was their extreme gentleness; and of the standard of gentleness proper to be followed in war Vattel was a severe judge.

  I here conclude this Introductory Lecture, but there still remain some points of principle which meet us on the threshold of International Law, and which cannot be dismissed absolutely in silence. In my next lecture I propose to consider the binding force of International Law, and with it a question of some gravity on which the judges of England and the legal authorities of the United States do not entertain absolutely identical opinions, and I will state the way in which I venture to think the various shades of difference can be got over. In the succeeding lectures I shall have to consider a few fundamental topics in the system before us, and I hope afterwards to give a sketch, which must be brief on account of the narrow limits of my course, on the law of war by sea and land; and finally I will endeavour to discharge a part of the duty imposed on me by Dr. Whewell's directions, and to state what measures proposed in our day seem to me to tend to diminish the evils of war and to do something to something.

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