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Full text of "The law of war between belligerents; a history and commentary"

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HARVARD 
COLLEGE 
LIBRARY 



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o 



THE^sLAW OF WARy 

BETWEEN 

BELLIGERENTS 



A 

HISTORY 

OOMMiBNTARY 



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THE LAW OF WAB 

BETWEEN 

BELUGEBENT9 



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M"wnfColteg9lJbniy 
, DEC 2 1909 
From the UnberaJhr 



Oamxaqbam a OmttAMr. 



TO 

Mt Motusb. 



PREFAGR. 



Thii work ii a history of and oommentaxy on the lawa of 
war as between belligerents. Some time in the fntore it k 
hoped to eomplete the treatment of the laws of war bj a 
like work on the laws of war as afPeeting nentrals and 
eyentoally to sapplement them by a third on amieaUe 
means of settling international dispotes. 

Part I is a history of war praetiee and of the develop- 
ment of a well-reeognised body of law regolating it It 
attempts to show how changes have come about in war 
practice and to show the historical position of the great 
Congresses and Conferences sach as those of Paris, Geneva 
and The Hagae. Especially is the Seoond Peace Confer- 
ence the sabject of carefol treatment. Finally it takes up 
questions which have arisen in late warn such as the eon- 
duct of the Germans in Prance, the reeoncentration meas- 
ures in South Africa and the opening of hostilities in the . 
Bnsso-Japanese War, and considers them in the light of 
International Law. The treatment of Russian subjeets by 
the Japanese Goyemment during the Basso-Japanese War 
is given in special detail in Appendix L 

Part n is intended to be a tharouifik eommentaxy on war 
practice between belligerents. Particular emphaids is laid 
on the militaxy as distinguished from the civil side of the 
laws of war. Comment is made on the international con- 
ventions such as those drawn up at the Second Peace Con- 
f Mence, and the Begolations respecting the Laws and Cos- 
toms of War on Lud and the Bed Cross Conventions are 
treated in great detaiL For convenience of reference it 
has been thouf^t best to follow Ptef cssor Wcstlake in re- 
ferring to the articles of the Begolations as H I, H II» etc, 
and to those of the Geneva Convention as G I, GH, etc. 
Articles of the naval Bed Cross Convention are also r^ 
ferredtoasGNI,GNII,etc It is hoped that this part 
may be of use to anny and navy oAcers jw a manual. 

Aside from this practical purpose, the* work is intended 
(k) 



tt a ito^y in law and it k hoped tbat the iint part ea* 
peeially will not be withoat interat to the general reader. 

So many aathoritiea are leried on for eontribntiona in a'^ 
book of thia kind that it ii hard to show proper appr^ 
elation withoat largely dnplieating the list of anthoritiea 
eited, but of living anthoni probably Profenor Nya and 
Profenor Weatlake have been of the greatest assistanee; 
the former* for his researchea in the law of the Middle Agea, 
the latter for his clearheaded Mialysii of the modem law 
and especially his comments on the work of the Second 
Peace Conference. To Dr. MasanosnkA i^nyama, of Tokio, 
especial thanks is dne for a copy of his Tnutement de Snjela 
Basses and permisBion to make extensive nse of the same. 

It is my ftirther pleasare as well as daty to express my 
thanks here to General Oeorge B. Davis for having read 
the mannscript at an earlier stage; also to the friends who 
have assisted in the manaal preparation of the work and to. 
the Fkcnlty in Pablic Law and Jnrispradence of CofauaUa' 
University. To two members of that Faenlty especial 
thanks are dne. Ptefessor Mnnroe Smith has pat me ondMr 
ondying obligations by the stimalos of his lectares on Bo- 
man Law and the Htetory of Baropean Law and besides 
has kindly read a portion of the mannscript while Prof ea* 
sor John Bassett Hoore, nnder whom most of my work wsa 
done, has been as a lamp nnto my feet and a lif^t onto 
my path. If there be any vahie in these pages, let it be 
r^^arded as the isspiratibn of his nnfioling kindness and 
profoond insight* 

PEBCT BOBDWBLL. 
Nxw Toix, Jnly 28^ 1MB. 



TABLE OF OOHmm. 



TABLE OF OONTBNTa 



Pabt I. 
HISTORY. 



CHAPTEBL 

pim. 
mTBODUonoH • ••••••••••••••••! 

CHAPTEBIL 

BBIOBB QlOnDB ••••• ••••••«••••• •Y 

Among the Andonts— Boles Expanded from the Bomaa 
Law— -German, Modem and Byiantine Praetiee— The Mid- 
dle Ages — Private Wan — Bepriaak — Inflnence of the 
Churdi— Dying oat of the Endavement of Priaonem of War 
—Chivaliy— Henry V— Swiaa and Italian Pntetiee— Piraej. 

CHAPTEB HL 

OBOnUB AKD Hm TDOBB.....^..... • • ..M 

The BenaisBance— The Itdian Writen— The Bpanidi Wri&> 
era—Oentilia-^rotiuB— The Condition of Warftoe at flia 
Time he Wrote— Hie Work— Its Infloeneo-^-CromwdL 

CHAPTEB IV. 

WAB8 OB PBDron. 86 

Their Moderation— Dedarationa of War— Sabatitiltion of. 
Contribntiona for Pillage— Vattd—BooBiea n — Byn lreidioet. 

CHAPTEB ▼• 

THE BBVOCOnOKABT AKD HAFOUOHIO BnTOOOUB SO 

The Amerieaa Bevdntion— Major Andrta-Tnihmnee of the 



Xii TABU OF OOVTBRDk 

Frendi Berohitionaiy Wan on the Doetrino of i 
Beimre of Art Trewo re i C ontribatioM and BeqnkitionL 

CHAFTBB VL 

THB PSnOD or. FBA0I Um THB mOLABAXIOH OF FlUS M 

Caumges in 8oei«t7— I>oelaration of Park— Podtion of Bng- 
land---Bz6mption of Private Ptepertgr mt Sea from Captore 
—Views of Franklin— The Position of flia United Statea— 

Hie RflMitWIS A ga iw^ 

CHAPTEB YH 

THB OniL WAB IV THB UBITBD STATB.* ••••••••••.• 7S 

Instnietions for the Armies in the Fieldr- Confiscation, 8e- 
qnestration and Captured and Abandoned Pxoperty Aets — 
Onerilla Hinting— *'Fort Pillow Massaere"— De Fketo Gor- 



CHAPTBB VnL 

THB GBHBTA OOHTBNTIOV OF 1864 AND THB DBOLABATIOV. OF 
ST. FB T B I SBUIMI 84 

Pint Steps Towards the Convention of 1864--Conf erenee of 
1883— Formation of the Bed Cross Soeieties— Congress of 
1864— The Convention— Additional Artieles of 1868-8t 
Petersborg Dedaratioo. 

CHAPTBB DL 

FBAVOO-OBBKAV WAB 88 



Francs-tireors— Ooenpation by Flying Cohimns— Bigjits of 
the Oeeupant—Bomings— Hostages on Trains— Attenqyts 
of Inhabitants of Oeenpied Territory to Jofai the Natioosl 
Army— Contribntions and Beqnisitions— Treatment of the 
Foresta— Captore of Private Pteperty at Bea^Treatment of 
Prisonen of Wai^-Administration of Oeenpied TerrUoiy. 

CHAPTBB Z. 

THB OOnEFIOATIOB OF THB LAW OF WAB 100 

The Institnte of Intemational Law— Stepa Leading isp to 



TABLB OF OOHTnmL zBt 

the Bnusels Ckmf erenee— Who mzo Entitlad to the Bi|^ti 
of Regular Comhatants— Definition of Oeeapation— Contii- 
bationa and Reqoiaitiona— An Able Conf erenee— Fate of the 
Declaration— Approval of the Inatitnte of International 
Law— The Declaration largely the Work of ICilitaxy Men— 
The Mannal of Oxford— Letter of Coont von Moltke Ooei^ 
doned by the Mannal— Other Codifieationa. 

CBAPTEB XL 

WAB8 DT THB XAaX AND WBT. 117 



Chino-Japanese War^— Hif^ Standarda of Japaneae in Gen* 
oral- Taking of Port Arthur— Treatment of CSiinese Dead- 
— ^The Sick and Wonnded— Exemption of Private Ptepertgr 
at Sea from Gaptore— Oraeco-Torkiah War of 1897— Span- 
ish-American War— Begnlationa relating to Maritime Law 
—Exemption of Fishing Yessela from Capture— Pxogreasrre 
Tendency of International Law— The Aasnmption of the 
Cabaa Debt 

CBAPTEB ZIL 

THE won TEAOE OOSHtMBMSOE, • 188 

Stepa.Leading up to it— Organintion of the Conferenee— 
Attempted Limitation of the Use of New Anna— Expandmg 
Bnlleta— Projectiles Emitting Asphyxiating Oases— Con- 
yention Applying the Principles of the Oeneva CouTentioa 
to Naval Waifan— Convention as to the Laws and Costons 
of War on Land— Work of the Conference. 

GHAFTEB Trm 

THB Wjixnr SOUTH Amoa^ 188 

Expanding Bnllets^EmpIoyment of Natives— Gombataot 
Character— Confiscations and Alienations— Annexation of 
the Bepablics— Declaration of Martial Law-*"The . Neu- 
trality Oath"— Burning of the Fkrms— Acts of IHolenee in 
Oecapied Territory— Beconcentration-PMNdamatibn of Ai^ 
gost 8, 1901, Threatening Baniahment for Life— Tnmbks 
in Chinsr-War in the Philippines— Establishment of ^ones 
of Befogs. 



jdf niLK ov ocwmn. 

CHAPTEBZIT. 

THB BDBMMlPlVnB WAX IM 

Opening of Hostilities— Treatment of Vessels in Hostile 
Ports at Outbreak of War— Treatment of Resident Rnemies 
— Threst to Treat Wireless Operators as Spies— Hooting 
Mines— The Bossian Vohmteer Fleets-Care for the SIek and 
Woonded— Begolationa. 

GHAPTEB ZV. 

TBI XSnnOH OF THB GSVSYA OOMVXNTIOH AND THE SIOOXD 

nuoi oonnBSiioi 175 

Imperfeetions of Gonyention of 1864— Steps towards Beri- 
sionr-Work of the Bed Cross Soeieties and of the Institate 
of International Law— The Oeneya Conference of IMS- 
Appreciation of the Work of the Conference— The Second 
Ptece Conference— Convention Bespeeting the Laws and 
Costoms of War on Land— Opening of Hostilities— Declara- 
tion Concerning Discharge of Fkojeetiles from Balloons— 
Bombardments by Naval Foreea— Sabmarine Contact Mines 
— Geneva Convention and Naval War— Conversion of Her- 
chant Ships into Warships— Exemption ci Private Propertjr 
at Sea from Capture— Bestrictions on Bight of Capture fai 
Naval War— Status of Enemy Merchant Oups— Fomal Jb> 
tides Appreciation of Work of Conference. 



Part IL 
COMMENTABT. 



CHAPTER L ' 

or WAX 197 

Measores of Force Falling Short of Waxb— Pltdilc Blockades 
—Opening of Hostilities— Effect of the Breaking Out of 
War— On Treaties— Commercial Intereoiine— Private Debts 
— Status of Enemy Merchant Ships at Outbreak of Hosr 
tOities— Contracts— Insurance— Standing of Aliens in Orart 



XABU OF OOHTSiniL Zf 

CHAPTEB n. 

OHABAOXn AKD PBOFEBTT tU 

Liabilitiet of Neutral Domiciled in BeUigerent Territory— 
Neutral Railway Material— Rolea aa to Bnemy Cbaraetei^— 
Commereial Domicil— Produeta of Soil— Bnemy Shipa— 
Tranafer of Property in fmiMf<»— Invalidi^ of Lieua — 
Tranaf era of Enemy Shipa during War— Eifeet of Oonqueat 
on Enemy Character— Da . fado Poaaeaaion— Personal 
Uniona— Alliancea— Ezemptiona from the Bif^t of Capture 
—When Title to Prize Veata— Confnaion of Becaptnra with' 
Poatliminium— Deatruetion of Captured ▼eaaela Banaom, 

CHAPTER TTT- 

TBIQUALinOAZIOHaOFBKLLiaSBXllTa...; 228 

The Eyil and the Inspiration of Irregular Piloting— Sua- 
aian Poaition at Bruaaeli— Oppoaition of the Smaller Pow* 
era to Limitmg the Claaa of Regular Comhatanta by m Hard 
and Fast Bnle— H I not Beatrietire— Neceaai^ of Fixed 
Emblem— Beaponaible Head— Conditiona Entitlfaig to Com- 
batant Treatment in Occupied aa well aa Unoccupied Trari- 
tory— Unsueeeaaful Upriaingi in Occupied Territory— Tem- 
porarily Succeaaful Upriiringa Privateering— OouTeraion of v 
Merchant Shipa. 



CHAPTER IV. 

pinoHzaa of wax 287 

Not Priapnera of Individuala— Humanity— Private Prope rt y 
of— Not Criminala— Democrat Among Priaoneia— Entitled 
to Eaminga— Deduction of Coat of Maintenaneo— Eacapea 
-^Parole— Bureau of Information— Recognition of Relief 
Sodetiea Treatment of the Dead— Effect of Peace— Ez- 




248 

Generm Convention for Land Warfare— The Sick and 
Wounded— Sanitary Formationa and Ei^bliahmenta^-Per- 
aonnel— Material— Gbnvoya of Evacuationa — DI atin c U ye 



4 






Zfi XABU 

Emblem— AppBeatkni and Bzeeatfam of the OcmTentioiH- 
BepiearioB of Abnaee and Befrmetioiie— Naval Conventiona 
— Hoepital Shipa— Dklinetire Emblem— Siek Waz4i— Per> 
aonnel— Dispoaitiim of Thoae Beaeoed by Neatral Hbapital 
Shipa-^PriaoneTa of War^— Intenment in Neatral Coimtix 
— AppUeation and Ezeeation of fha Convention— Beprea- 
aion of Abaaea and Infraetiooa. 

CHAPTEB YL 
XBAm OF orvBm urn DDmi. 878 



Hie St. Peteiabnrg Declaration— Dedaration aa to Aqibyx- 
iating Gaaea— Declaration aa to Expanding Bolleti— Decla- 
ration' aa to Diaeharging Pkojeetflea from Balloona— Con- 
rention aa to Antomatie Sabmarine Contact Minea— Poiaon 
— AmuBrinatJon—Qoartei^— Declaration . of No Quarter— 
Arma or Pro jectflea Canaing Unneecanry Soffering— Im- 
proper Um of Flaga, Uniformay etc.— Devaatation— Private 
Choflca in Action— Ptebibition Againat Inbabitanta Being 
Forced to Take Part in War Operatkina Againat llieir Own 
Conntry— Bnac a B ombardmenta on Land-*Bombardmenti 
by Naval Fbreea— Pillage— Spiea. 

^ CHAPTEB VIL 

BOMMO&nLM OnCBOODiai OF MKLLSSMMESTB •••898 * 

Hagi of T mce Capi tnl a t i on a ArmiaBeea. 

CHAPTEBVnL 

louxAxr oocijpixiov— uoHia and noma la to niaova.«887 

OccnpatiQn Mnat be Effective— Analogy Between Oeeapa- 
tion and Blockade— Beipnning and End of Occopation — 
Snapenaion of Territorial Authority of Legitimate Power— 
Continnanee of Antbority over Sab jecta— Doty of Inbabi- 
tanta— Old Lawa to Continue in Force Wherever Poaaible— 
EataUiahment of Martial ^w— Off enica Ariring from Non- 
combatant Character— Acta not in Themadvea Violationa 
of the Law of War, bnt Injoriooa to the Occapant— Penal- 
tiea of Martial Law— Bepriiala— Dntiea of the Old Fone- 
tionarica— Popolation not to be Beqioired to Take Oath of 



TABU ov ooMmmt. xfil 

AUegianM to Oeenpant or to givo Infomiatioii as to Annj 
or Means of Def enae— nmi]/ LUe to bo Intorf erod with aa 
Littlo aa PoaaBda. 

CHAPTBB DL 

HXUTAKt OOODPIXIOH— aiOHXa AVD DOTBa AB xo F a oFi at i .Slt 

Militaxy Oeenpant liaa rif^t to National Taxea— Qonoral 
Withdrawal of Tax Offieiala— War Contribntiona— BffloHa 
Made to Liniit Them— AdTantagea of Contribntiona— Col- 
leethro Beaponaibilitj— Charaeter of Beeeipts— Beqniaitiona 
— ^Personal Servie c a Bh eltoring of Troopa— Importanee of 
Beqniaitiona^Land Tranaportation— Mflitaxy BzoentioiH- 
Movable Pnblie Ploperty— Debta Dne the Legitimate Pow- 
er—Private Pxopertgr— Inatmmentalitiea of Tranaportation 
and Commnnicationh-Shipa not Coming Under tiie Bolea 
of Naval Warfare— Sabmarine Cablea— Contraela of Bz- 
ploitation— Fo reata Contracta Entered into in an Adminia- 
trative Capacity— Pxopertgr of Localitiea, Ghnrehea, ete^-« 
TeiminatiMi of Was. 



APPENOI0B8. 



L . 

TaamnpiT or Buaamr auBJson Dumro thb bd880^afa- 

wim g8» 



IL 

OOHVXRIIOK BaraonNG THX LAWa AND ODaiOXa OV WAft 

om lAMD '• ;846 

ra. 



or: 
im xzpiMivBa raoM BA£Loom 850 



lilts OV ▲OTBOBtmi» 



LIST OF AUTHORITIES. 



Adami, Heniy, Hktoiy of the United Stately New Toik, 
1889.189L 

Aegidi imd Elauhold, Frai ScUff nnter Fundcs-Ragge, 
Hamburg, 186a 

Akiyama, liasaBoeoU, Tndtement dee Bujete Bonea, Bnia- 
aela,lMT. 

American State Papen» Foreign Bdatiooa. 

Annual Begieter, London, 170. 

Annnaire de llnstitiit de Droit International, Paria. 

Ardiiyea DiplomatiqneB. 

Ariga, Nagao, La Onerre Sino-Japonaiae, Park, 1896L 

Aeakawa, K, The Bono-Japanese Conflict, Cambridge, U. 8. 
A^1901 

Aioni, Tbe Haritinie Law of Borope (translation). New 
Tork, 1808. 

Beanmanoir, FhOippe d^ Lea Contomes dn Beanvoisis, edit- 
ed by Le Comte Bengnot, Paris, 1842. 

Bernard, Monntagae, Hie Growth of Laws and Usagea of 
War, Oxford Essays, 1858, London. 

Blaine, James O., Twenty Tears of Congress, Norwich, Conn., 
1884-1898. 

Blontsehli, Le Droit International Codififi, Paris, 188L 

Bray, Joseph, Le Droit Penal Militaire Bomain et I'Ooeo- 
pation en Temps de Onerre, Paris, 1894. 

Brenet, A., La France et L'Allemagne derant le Droit In- 
ternational pendant les Operationa Militaires 
de la Onerre de 1870-1871, Paris, 19QL 

British and Foreign State Papers. 

Bmnner, Heinrich, Onmdsfige der dentschen 9eehtsg»» 
sehichte, Leiprig, 190L 

Bnrigny, de. Life of Orotins, London, 1754. 

Bynkershoek, Law of War (translated by Dn Poneean), 
Philadelphia, 1810. 

Calvo, Charles, Le Droit International, Paria, 1898. 

Clarendon, Bdward, Earl o^ Life of, written by himself Os* 
foid,18Sr. 



ZZ UtT OF ▲OTBOmiBL 

CoIuhUa Law Beriew. 

Oonf irence Inteniationil de la Pdz, 19ie Hague, 1899. 

CoTpos Juris Canooiei, Ljoniy 168L . 

Dayky George B., The Element! of intemational Law, New 

York and London, IMML 
Deapagnet, Frants, La Oaerre Sad-Afrieaine an Point de 

Vne dn Droit International, Parii, 1908. 
De Wet, Christian, Three Tears' War, New York, 1908. 
Digests Jnstiniani Angnsti, Th. Mommsen, Beriin, 1S70. 
Diodoros Sieofais, Historiesl library (translated hy O. 

Booth), London, 1700. 
Doyle, Sir A. Conan, 19ie War in Sooth Atriea, New Tork^ 

1908. 
Dn Cenge, Des Onerres Privies et dn Droit de Guerre par 

Contome, in the CoUeetion des Meillears Die-' 

sertations— Belatifi k I'ffistoire de Frsnee 

par a Leber, Paris, 1888. 
Glossarinm Hediae et Infimae Latinitatis, ete., Psris, 1840* 

1850. 
Dnmont,' Corps Univerael Diplomatique dn Droit des Geu^ 

Amsterdam, 1726-178L 
Brtrades, Comte d', Lettres, Hemoires et Negotiations, Lon- 
don, 1748. 
Ffirand-Girand, Beeonrs k Baison des Dommages Caosis par 

la Guerre. 
Fenand, Georges, Des Beqnisitions Militairea, Paris, 1888. 
Rrth, Charies, Olhrer Cromwdl, New York, 1900. 
Fortesene, J. W., A ffirtory of the British Armj, London, 

1899. 
FranUin, Works of Benjamin (Bigdow), New York and 

London, 1887-1888. 
Galiani, Beeht der Nentralitit (translation, Osar), Leipsig, 

179a 
Gillot, Lonis, La Berision de la Convention de Genive, Paris, 

1908. 
Gleig; The Campaigns of the British Army at Washington 

snd New Orleans, London, 1888. 
Grotfais, De Jnre BeUi et Pfteis (with translation hj W; 

Whewell), Cambridge, 1868. 
Gndle, Jnles, Prteis des Lois de la Guerre, Paris, 1884. 
Onrit, Zur Gesehiehte der Intemationalen und Freiwilligen 

Krankenpflege im Kriege, Leipsig, 1878. 



UtT OF AOTHOBRIEi. ZD 

Han, A Treatiae on Intemational Law, Fourth Edition, Ox- 
ford, 1895; Fifth Edition, Oxford, 1904. 
Halleek, International Law, reriaed 1^ Sir EQierrton Baker, 

London, 189S. 
Hanaard'a Parliamentary Dobatea. 

Harte, Walter, Hlatory of OnstaToa Adolphna, London, 1807. 
Heffter, Le Droit Intemational Pnblie de l^Earope (tranda- 

tion), Beilin and Paria, 1888. 
Herah^, Amoa, The Intemational Law and Diploma^ of 

the Roaao-Japaneae War, New York, 1906. 
Holland, Stndiea in Intemational Law, Oxford 1898. 

The Lawa and Cnatoma of War on Land, London, 

1901 
Holla, Frederick W., The Peaoe Conferenee at The Hagne^ 

New Tork, 190a 
Holtaendorff et Bivier, Litrodnetion an Droit dea Oena, 

Hambnis; 1889. 
Imperatoria Jnstinianii Inatitntionnm, J. B. Moyle, Oxford, 

1888. 
Inatitntea of Oahia and Rniea of Ulpian, Muirhead, Edin- 

bnrg, 1880. 
Jamea, Satory of the War in Ameriea, London, 1818. 
Jomini, Art of War (tranaUtion), New Torl^ 1854. 
Kennet, White, Hiatory of Eni^d, London, 1708. 
Lameire, Irfo^ Theorie et Pratique de U Conqnete dana 

I'Aneien Droit, Paria, 1902. 
Lea Ocenpationa Milit airea en Italie pendant lea 

Onerrea de Lonia XIV, Paria, 1908. 
Lea Oeeapationa Militairea en Eq>agne pendant 

lea Onerrea de TAneien Droit, Paria, 1906. 
Laorent, F., Hiatoire de l^Homanitt, Bmaaela, 1860-70. 
Lawrenee, T. J., War and Nentrality in the Far Baat, Lou- 

don, 1901 
Lediard, niomaa. The Naval Hiatory of England, London, 

1786. 
Livy, Boman Hiatory (tranaUted 1^ William Gordon), 01aa>. 

gow, 1806, 
Lorriot, A., De U Natore de l^Oeenpation de Onerre, Paria, 

1908. 
UaUy, L'Abbe de, Le Droit PnUie de I'Enrope, Gene?% 

1776. 



ndi imor 

Maehiftvelli, Nieolo, The Prince (tnadated hy John H<»w 
1^), London, 1889. 

MePhenon, Edward, HistoTy of the Bebellion, Wediinfton, 
1876. 

Hurael de Droit International a lITaage dea Offieem de 
TArmfe de Terre, Paria, 1898. 

Hartena, G. F. de, Summary of tiie Law of Nationa (trana* 
lation), Philadelphia, 179S. 
TtMm da Droit dea Oen, Paria, 1858. 

Hartena, F., Beeaeil dea Tnitea eondna par la Boarfe. 

Mathea, Capt J. Harr^, General Forreat, New York, 190t. 

Manriee, J. F., Hbaftilitiea withont Declaration of War, Lon- 
don, 1888. 

Meri^hnae, A., Lea Loia et Contomea de la Gnerre anr Terra, 
PariB,19QL 

Military Correapondent of the Timea, Tbe War in the Fw 
Beat, New York, 190B. 

Minntea of m Court of Inquiry upon the eaae of Major John 
Andr*, Albany, 1866. 

Monteaqoieo, Spirit of Lawa (tranalated by Thomaa Nu- 
gent), London, 1798. 

Moore, John Baawtt, Hiatory and Digeat of the Interna- 
tional Arbitrationa to which the United 
SUtea haa been a Ptoty, Waahington, 1898. 
International Law Situatioiia with Solutiona and 
Notea— Naval War College, Waahington, 
190L 
Digeat of International Law, Waahington, 1906. 

Moriey, John, OUver Cromwdl, London, 1900. 

Moaer, J. J., Veranch dea neueaten Enropftiiehen VSlker- 
Bechta, etc, Frankfort on Main, 1777-1780. 

Moynier, Guatave, Etude anr la Convention de Gentre^ 
Paria, 1870. . 
La Convention de Gentre pendant la Gueno 
nraneo-AUemande, GoiAve, 1878. 

Nya, Emeat, Le Droit de la Guerre et lea Preeunenra de 
Grotina, Bmasela and Leipsig, 1888. 
Lea Originea du Droit International, BruaMk, 

1894. 
Le Droit International, BruaMk and Pkria, 1906 
and 1906. 



im OF AOTHMnni. uitt 

QmAn, Caiariet, Art of War in the Middle Ages, LotUaa 

priie easay, Ozf ord* 188S. 
History of the Art of War in the Middle Agea, 

New Tork, 1898. 
Ortolan, Theodore, Begiee Internationales et Diplomatiqaes 

de la Mer, Paris, 1864. 
Pariiamentaxy Papers. 
Phillimore, Commentaries upon Intemationfl Law, Second 

Edition, London, 187S. 
Plutareh, Morals, edited by Wm. W. Goodwin, Boston, 187L 
Pont, Gbu, Les Bequisitions Militaires dn Temps de Ghierre, 

Paris, 190B. 
Pothier, Oenvres de Pothier, Paris, 1821*1821 
Pradier-Fodere, Droit International PoUie, Pferis, 1885- 

1906l 
Pnf endorf, Samnel, De Jnre Natnrae et (Jentinm, London, 

187S. 
Qaerry, A^ Droit Mnsnlman, Beeaeil de Lois Conoemant les 

MtMolmans Schyites, 1871-1871 
Rebellion Records. 
Report of the United States Delegation to the Genera Con- 

ferenee* 
Revne de Droit Ininmational, Brossds. 
Eevne Mnfode de Droit International Public, Piris. 
Rivier, Principes dn Droit des Gens, Paris, 1886L 
Roby, John Henry, Roman Private Law, Cambridge, 19QS. 
Ropes, John C^ The Army nnder Pope, New York, 188L 
Roossean, J. J^ Dn Contract Social, Paris, 1888. 
Saze, Marshal, Reveries or Memoirs npon tho Art of War 

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Schwab, J. C, The Confederate States of America, New 

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Scott, James Brown, Cases on International Law, Boston, 

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From Tokio throuf^ Manchnria with the Japa- 
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Sheridan, Ckn. P. H., Personal Memoirs o^ New Tork, 

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Sdf U0T 09 AOTHOUnn. 

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Staik, Fnneis S^ The Abolition of PriTateering and The 

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Eni^ish Oonetitational Hlttofy, Oxfoid, 

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Takahaahi, SaknyA, Casee on Inteniational Law dnring the 

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Government Printing Offiee, 1908. : • : 
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1875. 
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History of the Law of Nations in Europe, 

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An Enquiry into the Manner in whieh the Diff ei^ 

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dnring the last two eentnriea, London, 1805. 
Westlake, John, Chapters on the Principles of Inteniational 

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Zom, Albert, Daa Kriegneeht' in Lande^ Berii]^ 1908L 



PABTL 
mSTOBT. 



1 



THE LAW OP WAR BETWEEN 
BELLIGERENTS 



GHAFTEB L 

IKTIDDITOTIOV* 

Higb-minded men in every age have longed for tlie time 
when wan shall be no more; and thegr And today in the 
Tribunal of The Hagne the beginnin^i of an inititation 
which shall reidize their hopes by snbstitating for the 
appeal to force the appesl to justice and right But ap» 
parently the time for the realisation of such hopes has 
not yet oome, and until it does the rules according to 
which warfare must be conducted will continue to be of 
vital concern. These rules are scarcely less certain and 
are probably less often violated than the rules of private 
law which are enforced by the courts; but the pasrions 
of war often csst doubt on their certainty as wdl as on 
their cflBcacy, so that even more than in the case of private 
law it becomes necessary to resort *to fundamental prind- 
pies to see what has guided the making of rules in the 
past and is likely to have a similar influence in the future. 

Mudi of the progres s in the eonduet of wazfue has been 
due to the Improvement in mllttary sci e nce^ taut humaidty 
has ilso idayed its pert— In the first place, it cannot be 
questioned that much of what is best in the laws of war 
has grown up independently of any set prindples. The 
respect with which private proper^ on land is regarded 
today is largely due to the change from pillage to the qra- 
tem of contributions, a change that was induced mainly 
by the greater efficient of the latter; and many other in- 
stances could be dted of amelioratioos whidi have been 
brought about by the selfish interesb of bdligerents. CSv- 

1 



/" 



/ 



iliatum k to eomplez, and ao many eleiii«iits bava gona 
into ita making^ that it ia often bard to aay jnat what in- 
flnoica haa been moat effident; hnt^ alongidda the aelliah 
motiveay we know that the great eommanden who have 
wrought important ehangea in the eondnet of warfare ha^e 
alao had the higher motivea of hnmanitj^ and it ia theie 
whieh have been eryatalixed and applied 1^ the great mar- 
tial jnriata, and eapeeially the greateat of them aU, Grotina, 
ao aa to be reeogniied aa fundamental prineiplea of the lawa 
of war. 

The aToidanoe of nielnat tnlnrr a fDndamantal prineipla. 
—Of prineiplea that may be eouidered fnndamental, the 
greateat ia, that oomparatiydy naelesa injnry ia nnlawfoL 
Orotina applied thia piindple ezhanatiydy to the poaeible 
ineidenta of land warfare, and baeked up hia ophuona with 
aneh an array of writers of every kind and age that the 
greatest men of hia time, men like Gnatavaa Addphna, 
beeame hia ardent admirera and devoted foUowera. He 
tanght with new f oree that a bdligerent dionld injure hia 
enemy not beeanae of the mere injnry to the enemy, but 
beeaoae of the advantage to himself, and that meana not 
leading to sneh advantage most be eondemned. To state 
aneh a prindple is to obtain ita aeeeptanee^ and it haa 
been of vital f oree in making the laws of war what they 
are today. 

The propealllon thai vrar dundd be a rdalion between 
gorammenta^— It ia the prindple that nsdess injnry dioold 
be avoided and that a war of revenge ia abaolntdy eon- 
demnable that eharaeterixea the difFerenee between dvfl-. 
/ iied and nndviliaed warfife. But the attempt haa been 
made to introdnee .another prindple— that of eonflning wars 
to governments themsdvea. Under thia prindide the atate . 
. wonld beeome in efleet a oorporation with limHed liability, 
for whoae debts the general proper^ of ita dtiaena wonld 
not be liable, and war wonld take on the eharaeter of an 
atUetie eontest between two sehods, whose members, no 
matter how enthndaatie, mnat not partidpate ezeept aa 
membera of the didy avUioriaed teama. 

The advantagea to be derived fherefiram^— The earrying 
oat of dther <^ these analogiea wonld have many advan- 
tagea. A war ia nndonbtedly the eoneem of the whole 
eoontry, and it ia deairaUe that the eonntiy aa a whole 



xvnooooxiov* S 

Bhould bear its bordenB instead of their falling even tem- 
porarOj upon individnala. A goyemment is aUe to dis- 
tribute the burdens over the entire eonntry, and to shift 
them if necessary to fature generations, and thus te make 
oomparatiyely imperceptible a burden that woold be emsh- 
ing to the few. The assimilation of war to an atUetie eon- 
test has also other considerations in its fkvor. One of the 
crying eyik of war in the past has been irregular fighting. 
Military men and publicists are at one in decrying its in- 
efficient and the lawlessness and recrimination which a^ 
company it 

Its appUcatloii dniing the 17th and 18th oentnriss^— Fkob- 
ably the most perfect application of both of these analogies 
was in the period preceding the French Bevolntioiiy when 
Bonssean generalijBed the war eondnct of his time in the 
famous statement that has serred as the text ever dnoe for 
those who wish to confine wars t6 goyemments theniselyes» 
a statement which followed closely a similar generalisation 
made by Yattd four years previoos. 

But most wars asns now oontests of peq^ Tather than 
off princes^— But since Yattd and Bonssean wrote, the pre> 
yailing ideas of goyemment haye vastly changed. Wars' 
for the most part are no longer the eontests of prinoes in 
which the people have little concern, but national stmg- 
gles to which the peoples themselyes are parties rather 
than the goyemments which represent them. It is the 
opposing people then that is to be coerced into the recog- 
nition of the claim of the other belligerent; and it may 
well be doubted whether s principle that would altogether 
prevent direct pressors from being brought to bear on the} 
people of a country might not greatly lengthen wars, andl 
by the added length cause tar more suffering than it wouldj 1 
avoid. Thua, one of the avowed purposes of Oeneral ^ 
Sherman^ March t6 the Sea was to bring the pressure 
of war home to the people of Georgia. Whatever may be 
the opinion as to incidents of that march, few probaUy 
will dispute the rightfulness or wikLom of its general pur- 
pose; and yet such a principle as that under consideratioii 
would forbid such an expedition entirely, unless it had 
distinct mflitary purposes as wdL 

The oontlnnanoe of the praetioe of altasidng 
would Indloale that goferpmsnts skOl 



^' 



/ 



iStm Minn of prtfitt prop«r^ aa dtm^n mmm €( i 
mrt OB gomuBiBtt^^Ocntral Sheridan daims tbal tba 
loai of property is more apt t6 bring people t6 tema than 
loai of life on the batUefldd; and, if this be ao^ U ia often 
more htamane to oeeaaion aome aaerifiee of property and 
end the war, than to spare the property and eaoae the 
emitinned loaa of life, the expenditure of pnUie fonda and 
the thooaand and one injnriea neeetaarily inflieted on 
prirate p r ope r ty 1^ the operationa of war, no matter what 
theory of law be followed. Sneh a theory would do away 
with eommerdal bloekadea, and yet aneh Uoekadea ha^e 
been praetieed in the moat reeent wan and are likely te 
be in the future. When it eomea to the queation of ink- 
ing at eommeree on the high aeaa, tUa reaaoning ia ea- 
peeiaDy applicable. The influence of the great eommereial 
daaaca over modem goyemmenta ia ao powerful that ef* 
f ective preaaure brought to bear on them ia aura to be 
keenly felt by thoae holding the reina of goTemment 

A mla thai would eonflna realataaoe to Ofgaaiaad f oroea 
ndght be fktal to national ezlatenoOir-Eyen atr on ger rea- 
acma than theae militate againat the adoption of the liew 
that war ia a aort of atUetie eonteat, in which none but 
the authorised teama mnat play. At the Bruasela Conf ei^ 
enee in 1874, the attempt waa made to convert thia into a 
hard and fast rule of international law, but it waa op- 
poaed by the able repreaentatiyea of the amaller powera 
and aroused in them the utmost indignation, notwithatand- 
ing the tui that the Conference had already atretched the 
* rule almost to breaking by the liberal conceasions to Ha 
opponenta. It waa admitted that a belligerent might often 
feel justified in using extreme meaaurea, eren where a ria* 
ing of the population in occupied territory waa prompted 
by the most patriotic motivea, but it waa thought better 
to leave such incidents to the unwritten law of nationa 
than by a hard and fitft rule to turn over to mOitazy jus- 
tice time who had been willing to aaerifiee their all for 
their country. Aa it would haye been a miatake to intro- 
duce any such infiexible rule into an inteniatioiial agree- 
ment, 80 it would be a miatake to introduce it into the 
unwritten law of nationa. At the international eonf erencea 
the prendling opnion haa aeemed to be that the retmburae- 
of the indiridual ia largely a matter of national 



rather fhaa intemationil eoncem, detiraUe, no doiiMi but 
nibjeet to cooftideratioiii of expedien<^ and not a mattor 
of absolute ri^t Likewise it would seem better to mn 
the risk of an abuse of discretion on the part of a Ckvr- 
emment in entering on irregolar Warfare tban hj an arti- 
fieial role to pr^ndgo all eases that may arise. 

The Talne In Bonssean's doctrine*— Insofkr as there is 
value in the theory with which the name of Rousseau is 
associated, it ib summed up by Westlake as follows: ''The 
relation of enemies ought to be held to exist (1) between^ 
two states at war with one another; (2) between each of 
those states and those subjects of the other whom for the 
purpose of the war it may be necessaiy to affect by acts 
of force, and so tar only as it is necessaiy so to affect 
them; but not (8) between indiTiduals.'*^ 

Oerman doctrine of neoesst^^— Some of the obvious dan- 
gers of the theory that war should be confined to govern- 
ments themselves are avoided, especially by the Oerman 
adherents of that theory, by their doctrine of necessity. 
It is a doctrine like that of self-preservation, of which 
Hall says: "It would be difficult to ssy that any act not 
inconsistent with the nature of a moral being is forbidden, 
so soon as it can be proved that by it, and it only, adf- 
preservation can be secured. But the rifl^t in this form 
is rather a governing condition, subject to which aU ri^ts 
and duties exist, than a source of spedflc roles, and prop- 
erly perhaps it cannot operate in this latter capacity at 
alL"* The German writers, however, go farther than this 
with the doctrine of necessi^, and apply it, not only wheite 
self-preservation is at stake, but in aU cases of 
need when the object of the war cannot be obtained ol 
wise.* In other words the observance of the laws of 
is subject to the condition that it is consistent with the 
attainment of the object of the war. If it is not U is the 
less important and must give way- Confined to certain 
extraordinary eases this doctrine is not objectibnaUe, 
if given a liberal interpretation it woold soon usurp 
place of the laws of war altogether. Woold it not be be^ 
ter if such an extraordinary occasion should arise to vio- 




in IMnwitiaHl law, SO. 

tHui. sia Ed^ p. isa. 
•WwtisiD^ PriMipk% fL isa. 



Ute the law and plead jnstifleatioii, than hj amioiuieiiif 
■neh a prineiple In advanee, lanetion it almoet aa law i^ 
•elff 

General fnftnenoea irideh havf Imp rofed war praetloe.— 
The foregoing are the moat important of the general prin- 
eiplea that have been nrged aa guidea for the eondnet of 
■bdligerentt towarda eaeh other. But In the laat analyna 
the effiea«7 of all law depends on its emifonnitj to the 
/ jpnUie eonadenee and eepedaDj li thia tme aa to the lawa 
pt war between belligerenta. It ii inooneeivable that we 
aLonld nae pokon even thoni^ it mi^t be effeetire, and 
the inereaeed eare for prlsonera and especially the aiek 
and wounded bvt refleeta the philanthropie apirit of the 
age* Perhapa the last of all to fed this goiekening of the 
public conscience are the conrta. Thqr necessarily follow 
to a very great extent the precedents of a past age and 
for these resaons it Is desirable that many of the ineidenta 
of war, snch aa commercial intercourse with the enemy, 
should be more fully placed in the handa of the politiesl 
authoritiea, who are more responsive to public opinion. 
Finally the ideals of chivalry, which have alwaya been 
aasofiated with military life, and the spirit of fsir play 
engeodered by personal contact with the enemy, have done 
much to relieve war of its harshness. During our own 
dvil war the soldiers in the Held were much less vindictive 
than many of the eivH authoritiea at Wsahington. 



OBOXlOlk 



CHAPTER n. 



TlM ooDtaiiA in llM iiM of llM termi ''Uw*' aiid "i^ 
—In a letter quoted later,^ Count von Moltke deniei rather 
warmly the applieabilitj of the term law to intematunial ^ 
agreements, aa there is no authority to watch over and 
ezeente them. He is one of a great number who have eon- 
sidered the essential quality of law to be that of eommand, 
so that there ean be no law where there is no superior. 
He represents the opposite extreme from those who would 
extend the scope of international law te indude natural 
law, and while this Tiew as to. what law is, has been regarded 
by Sir Heniy Maine and others as ne^igible, since Count 
yon Moltke wonld have undoubtedly recognised the ob- • 
ligation of well-settled usages of war by whatever Blame 
called, still it unquestionably produces 'confusion in the 
use of the term law and hindisrs that general consensus 
of opinion which is so desirable, especially in the relations 
between belligerents. 

Senders the ascertainment of war praeUoe off past ages 
diflBeolt^— This confosion in the use of terms is not peenliar . 
to our own time, and it renders the ascertainment of the 
war practice of past ages peeidiarly difficult. The most 
contradictory statements' are made as to the existence or 
nature of a law of war, when the whole difficulty is apt 
to be a matter of terms. It is probably true, aa Montes- 
quieu has said, that ''all countries have a law of nations, ^ 
not excepting the Iroquois themselves, tiiough thqr devonr 
their prisoners."* It is important to bear this in mind, 
for the statement is frequently made that till recently war 
broke all legal relations and that an enemy had no rii^ti, 
a statement that is true only in some of the narrower 
in which the terms ''law*' and "right" have been 



Ufi/^ p. 114. 

SpirH of Lftirp, Bk. 1, Asp. nL 



/ 



TIm Aiyaai naAf ihowtd Ugh sboktaidi cf 
/ hi vnt, — ^No one who roealk tiie wan of ezkerminatum 
waged by the Jewa» or the deeda of aaTagery that diafif- 
vre the pagea of ancient and oriental hiatory. will eare 
to haye them detailed here. Often thqr inydyed no auf- 
fering to the liying, but eonaisted in aayage exnltation 
oyer the dead; bnt to na thqr moat be eqnidljr reyolting. 
On the other hand, it moat be a matter of pride to na that, 
among the firat glimpaea we haye of the Aryan peoplea, 
we find inddenta of humanity in time of war which f ore- 
ahadow the high atandarda of war practice in yogne today 
and form a pleaaing contraat to the general current of 
ecmtemporaneoaa hiatory. Diodoroa Sicolna aaya that, at 
thon^ among the ancient Hindna "the armiea on both 
ndea ilani^ter one another, yet th«y neyer hurt the hna- 
bandman, aa one who ia a aenrant for the common good 
and adyantage of them all; neither do th<^ bom their 
enemiea* coontry, or cut down their treea or planta."* 
Inatancea of a like humanity are found among the Peruana; 
and, while we find in Homer inddenta of aayagery and 
reyenge, theie are oflbet by the many inatancea of Greek 
and Boman humanity which are redted in the pagea of 
Grotiua; inatancea which cauaed him to turn to danie lit- 
erature with rdief from the dekening eyenta of the Thirty 
Tean* War. 

Qredc and Soman yrar praetloe«— In aome reapecta, war 
waa more aeyere eyen in the beat perioda of Greece and 
Bome than it ia today. Priaonera of war were made dayei» 
/ the inhabitanta of towna taken by anault could expect 
little mer^, and acta of great aeyerity intended t6 inspire 
terror were frequent. On the other hand, dedarationa of 
war were yery daborate, the rdeaae of priaonera on parole 
. and ranaom waa not unknown,* acta of yiolence againat 
"^ women and children were denounced and perfidy waa con- 
demned.* 

Ilie few precep ta of the Bonuui Law rdatiag to war 
I mnoh off by the f oundera off the Law off Haliooa^— The 



• TIm HirtoricU Llbimiy of Diodonis tbs Sidliaa, mc. n, Obttft. nit 
fL 7S (Tnaa. Bootk). 

«PI«Uicii. OiMk qoMtloBt, QoMtioa 17 (T^uh. Bootk). 

• QraUao. Bk. m, Cha^ XI, e-lS tad Owf. IV, Ui* < 



■oiLuruw. 9 

DigMt of Jutiiiiaiit whieh k the great loiiree of our 
knowledge of the Boman Law, and whieh embodiee moet 
of what was beet of the great Boman jnriste, eontaina little 
that pertains to the snbjeets oovered by The Hagoe Beg* 
nlations, and, exeept as to eaptives, that littte eonsists of 
incidental remarks; bat, like everything dse in the Digest, 
that little was so worked over and elaborated by the jurists 
of the Middle Ages and their snoeessors that it oeenpies 
a prominent place among the sooroes of the modem law 
of war. 

The law off eaptune^— Enemy property was placed in the 
same dsss with ret nvUttit, thingi belonging to no one, 
sneh as animals in a state of nature, from the fact that 
in both cases title waa not deriyed from someone else but 
was acquired by mere appropriation.* Conquered land 
became the proper^ of the state;* but it was customary 
to leaye the old proprietors in possession of part of what 
th^ had owned or even of all of it, subject to a perma> 
nent land tax.* Other property, unless captured under 
such circumstanoes aa to make^ the indiyidnal property 
of the captor, aa in an assault,* became part of the gen- 
eral spoil,** which, or the proceedi of which, was ooiii> 
monly distributed among the various ranks of the amy 
after a deduction had been made for the public treasury 
and at times also for the gods.^ Prisoners of war became 
slaves, but only on being led into the camp of the enemy. 
Until then th^ retained their civil ri^ta.** This prin- 
ciple of intra praetidia, that firm possession was necessaiy 
to give title, occupies a very modest place in the Digest, 
but it was applied generally to thingi as wdl aa to persons 
by Grotius and the other early writers on the Law of Na- 
tions; and it played a most important part in limiting the 
rights of Conquest to places which had been firmly ooeu- 
pied as wdl as in postponing the vesting of titie to e^i- 

•Gfthn, n, ee^; jml, n, i. n. 

vD^XLIZ,l^ie. 

• GntliM, ni, e, 111 BluitidU. Bflvw d« Droit iBttfasHoML 

ccsia. 
iif7, n, 41, vm, 1. 

tGratiiM, m, e, IS. 
i«D, XUZ, 1^ IS. 
u GntliM, III,e, ICHl 



10 

tared ibipt till ibej were liroiiglit t6 a plaee of saf etx, sneh 
M a port of the eaptor or ef an ally, or the neinitj of a 



MiODfln did not beoone davii ia oMl wan.— Another 
Important modifleatlon of the doctrine that prieonen. of 
war became elayec was that this took place onlj where 
the war was eolrmnly declared;^ and, as this was impos- 
sible in the ease of intonal war^ the opposing forces in 
snch a war did not become formal enemies nor did prisoners 
of war become slaves.^ Grotins attributes mnch of the 
ssTagerj of the civil wan to this canse» on the snpposition 
that men wen more inclined to kill when they had not 
the ri^t.to endaTC.** In the Middle Ages, when many 
wen indbied to ngard those recognising the aothority of 
the Soman Chnrch as the snccesson of the Soman people, 
the modiiication in question had an important influence^ 
as it gave a legal basis to the doctrine that the wan of 
Western Sorope wen civil wan and that accordini^ no 
right of enslaving prisonen of war conld arise from theoL^ 

The effect off oaptan on a Scman dUaea and of Us ra- 
tora to Us own conntry^— -The endavement of a prisoner 
of war meant the loss il his dtiaensUp, of Us podtion in 
his fMBuStjt and of his property ri^ts; but tUs was snb* 
jeet to the important qoalifieation that his rights revested^ 
and that his dd podtion in Us family and in the state 
revived, on Us escape from the enemy and retom to his 
own coontry. In efEect his variona righta wen sospended 
for the period of his captivity.^* A will made dnring that 
period was invalid, and his children wen rdeaaed for the 
time being from obedience to him. If he died in captivity, 
however, it waa provided by a Cornelian law that he dioold 
be conaidcred to have died a Soman dtiaen. The juriats 
interpreted thia to mean that he waa conddend to have 
died at the moment of capture, ao that thoae who would 
have been entitled to ancceed to hia estate, if he had died 
at that time, became entMcd to H.^ 

law of reverter or postUadniaBL— This law of ro- 



Mll|»ZLlZ»li^tL 

MQietfi i^m , y, ^ ^ 
M 9jB, oviaiaH^ •tsy p. aar* 

itGeiHw I. lt»» mpin, Z, 4. 

siBAIy. Bmmi Prifile lav, % SlOi IK TTff, V^b 1 



THB OmCinO KIOBASIOin. 11 

▼erter, whieh changed the effect of eaptmre from an ab- 
•diite loai of ri^ta to the mere auapenakm of them, waa 
called the law of poatliminiiim. It applied alao to land, 
alaveay ahipa of war and hcHraea;** but aa theae ar6 ape- 
cifically mentioned it la probable that the law did not 
apply to property in general, bvt that anch property be- 
came part of the general booty on recapture. It certainly 
did not apply to arma, which it waa conaidered a dia- 
grace to looae.** It ia probable, then, that moat kindi of 
moyable property when recaptured, did not vcat in the 
old ownera; and by the time of Orotiua, at leaat, thia had 
ripened into a well-reoogniaed rule of intematiimal pra^ 
tice, 80 that the law of poatliminium waa conndered by 
him and moat of hia anccenora to apply to land and to^ 
ritoiy, but with aome exceptiona not to movaUea. Thia 
law of war waa elaborated in greater detail than any other 
by the Soman juriati, ao that it came to occupy an im* 
portant place in early worka on the Law Of Nations aa 
it haa continued to do well into the prcaent century. Ita 
chief function in International Law haa been in keeping 
dear the principle that territory aeiaed by an enemy doea 
not become hia in equal right with hia old territory till 
the conduaion of the war. The aame reault ia much more 
aimply worked out in our modem doctrine of Military 
Occupation; but to a great extent, the reaulta of the dd 
doctrine of def caaible title were the aame aa thoae of tUa 
later doctrine of mere poaacanon. 

The Oermanio mlgrationa<— There ia no diarp break be- 
tween the character of the warfare waged b7 the armiea 
of the later Boman Empire and Of that waged by the 
Germanic tribca which overran it Fh>m the beginning of 
the fifth century Oerman mereenariea came to be a pre- 
ponderating dement in the imperial armiea,*^ and, aa each 
corpa waa encouraged to keep ita own national arma and 
equipment," there waa probably more in common between 
the warftffc waged by the Oerman tribea in the great mi> 
grationa and the warfare Of the later Empire than between 
the latter and the earlier Roman practice. From the mo- 

ttD^ zuz, 1^ rs; B«iy, n, laa. 

tiOBM*, tbs Alt of W«r, fL la. 



IS 



y 



VbMX tlMM mereenarici euM to be emplogred, their 
imperfaet diieipline must haya added greaUy to the bov- 
dena of war; and when the migrationa eame, the preaenee 
of wom«a and ehildren with the armica mnat ha^e aof^ 
mented eyen thk inereaeed burden nanyfold. Deapite 
thiiy however, the execration wliieh the aappoeed eondnet 
of the Yandak caUed forth, and the deteatation whieh 
eanaed the Hnn, Attila, to be called ''The Scourge of God" 
ahow that there were wdl reeogniaed atandardi among 
the Genoana which, compared with the reputed atandard 
of the partienlar tribe, the Yandala, and with that of the 
Bona, were eomparatirdy higk- 

The ^yitcmalio war ooda of the Saneena^— The Ckr- 
mania invainon waa followed by that of the Sara- 
eena. Their law book waa the Koran, bot it waa nece^ 
aarily incomplete and waa supplemented \fj the dedsiona 
of Mohammed and hia ineeeflsori. To meet the needa of 
the different peoplea whom the Baraecaa eonqoered, thia 
body <xf law waa codified and the revolt bean tribute to 
the brilliant line of juriati who aeeorapliahed it** That 
portion dealing with the law Of war ia of eonaiderable 
magnitude. It is the first ezample we have o( a systematie 
war code. 

The waging off war a rdigiooa diilj.ir— Once a year holy 
war waa to be made on the unorthodox, on unbelieyeis and 
on tributariea who had &fled to liye 19 to their oUiga- 
tiona.** It waa possible for tributariea to retain their r»> 
ligion and even the administration of their country, but 
it. waa only Jews, Christiana and Ghebers who, aa tribu- 
tuiea, could have these privileges. To other unbelievers 
no middle coune was offered between Talamism and the 



Fteoepla of Mndness and eUvahy^— Pkeeepta of kindness 
end chivalry were not lacking. Theare were injunetiona 
againat making use Of incendiary projectilea, and alao 
againat cutting treea belonging to the eneoy, intereeptinc 
his water supply or poisoning weDs and water courses, 
while the killing of women and children or the insane, and 
the mutilation of prisoners without cedent waa abaolutely 

"A* Quflffiy Droit 



ftAiAonno WAS oois. IS 



forbidden.** Where an off er of indiTidiiil eombat had been 
made by an enemy, it was nnlawfol to render the eombatani 
aatfstanee. The fdthftal obaenranee of eapitalationi was 
oUigatoiy. 

fteatmenl of priaoneri of war«— Women, and minora of 
both aexea, became the immediate property of the eaptora. 
The dispoeition of adnlt male priaoneri waa reaenred to the 
commander. Th^ could be aent back, rdeaaed on ranaom, 
exchanged, or reduced to ■lavery.*' The giving of food and 
drink to prisonera waa compniaory. It waa recommended 
that th^ ahonld not be tortored, nor were their heada to 
be carried from the field of battle.* 

fteatmenl of enemy property^— ddtivated land which 
waa aciaed became the property of the whole Mnflsolman 
commnnity.** Booty coold not be appropriated except for 
nonriahment, till after a fifth had been taken from it** 
Thia fifth waa devoted to religiona porpoaea, the care of 
orphana, of the needy and of atrangen.*^ 

Cknnparatlvely mild treatmeni cf vnortliodaK MnfaiiL* 
maaa. — ^Againat unorthodox Mnaaolmana, war gave fewer 
righta than againat nnbelieveia. The object of war agaimt 
them waa their dispersion, and when this could be aocom- 
plished without the more serious messures it waa wrong 
to resort to them. Prisoners of war were not endaved and 
property waa confiscated to only a limited extent.** 

Aetnal practioe amonf Mohammedans not unlf omt — 
These rules left much to be desired. Almost unlimited 
discretion aa to the treatment of prisoners of war waa let! 
in the handa of the commander, ao that the character of 
the war waa largely in hia handa, while the immediate 
enslavement of women and children allowed the worst 
psssions of the Mohammedana to find vent Still, there 
were some evidences of a humane disposition, and the 
Saracena, under whom the first great conqueata of Talamiam 
were made, aeem to have exercised their pow;er with the 
greatest consideration. The Turki, however, have always 

MfMi^pfLSM^Stt. 

•AM, p. an. 

nlMa^p^lTS. 

••AML, pfL asaasa. 



14 

betnjrad tli«b Tanaiaii origin* and th« Weit A£rieia 
iynaitim whieh followed that of tho Saraoans in Spain 
feU abort of the hii^ atandaid aet by their predeeeaMm.** 

The Baatam Bonan Smptara^— The Saracena were mar* 
▼eUondy aaeeenfnl, bat th^ failed to aeeompliih the amt- 
throw of the Eaatem Boman Empire. That waa left for 
the Turk in 145S In the meantime the inatitntiona there 
had retained mueh id the form impreond on them in the 
daja of the earlj emperora. The art of war and militaix 
dJaJBipline and organiiation had remained while elaewhere 
thflj had been forgotten. In the Taetiea of Leo the WIm, 
written aboot the year 900, there ia mneh good eoonael 
"to the effeet that no plii^ted treaty or armiatiee mnat 
be broken, no ambaaiador or parlementaire harmed, no 
female eaptiye miabandled, no ilani^ter of nonoombatanta 
allowed, no emd or ignominiona terma impoaed on a braTO 
enemy/^ Thia ia aomewhat marred, however, by the ap- 
proval given to the nae of bribea, to the obtaining of hi- 
formation through flaga of tmee and to other meaaorea in 
which the Beat Boman took an nnnatoral ddii^t aa evi* 
denee of hia devemen.* 

fhe lawtenmen of the Wddla Agea«— Far different froaa 
the atate of affeira in the Beat Boman Bmpire and among 
the Saraeena waa that in the Weat The great Carolingiana 
had temporarily ehedced the tendency towarda anardiy 
tiiat had aet in with the Oormanie migrationa, birt on the 
death of Charlemagne there waa no one to take lita plaeob 
and the tendency towarda anarchy waa allowed to mn ita 
eonraou The wMkneaa of political power necearitated the 
eaatle for protection froaa neighboring lorda aa weU aa' 
from the intoada of Noiaeman and BarMcn, and once boilti 
the caatlei aerved to perpetuate the condition of lawleH* 
ncaa which had been the canae of their origin. Klngi were 
. able to do little a^iainat them and wan came to be petty 
atrifca and knii^t errant ezpeditiona. In thia dark period 
of the Middle Agea the Chnrch of Bome waa the one great 
inatitotion atanding for law and order. 

tttnU Wank— A proof of the lawicancH of the timea 
ia the exiatence of private wan, which abonnded every- 

»Wannr, HirtMyaf tbtLawof NaUoM^yeL^pf^iai^liiL . 
M OMa, Ibt Alt «f Wai^ fi aoL 



mVAR WABVIU. U 

• 

whoe but in Engknd. Thej were probaUy in pert inr- 
vivals of the old Oerman femilx fendi and in pert out- 
growths of the times. In FreneOt eepeeielly, thegr omm to 
be waged with great preeinon. Th^ eonld be reaorted to 
only for open and notoriona off enaea aneh aa homidde^ maj- 
hem and battery,** and were eommeneed by the breaking 
tat of an open quarrel or hj worda of menace or defiance.*' 
Bdativea of the author of the war of the degree in which 
marriage waa forbidden by the ehnrch, were bound to wap- 
port him nnder pain of losing their rii^ta of anceession.** 
Vassala were held to join their ehiet, \zt fhtiy coold not be 
attacked except while in actoal aerrice. When th^ ro- 
tomed from the war, they were not to be attacked for 
aimply having performed their duty.** The right to wage 
priyate war pertained only to gentlemen.^ The commnnei 
obtained it by special conceasion from the King.^ The 
war terminated by a peace, by an appeal of one party to 
the suzerain, by gage of battte or by the aatiafaelion of 
the offense. When one of the partiea desired to avoid the 
war he called on the anaerain to summon hia adversaiy into 
court and oblige him to giye assurance not to ifljure the 
appellant further in hia person or gooda, but to bring the 
controversy into the auxerainls court and abide by hia do» 
ciaion.^ Thia the suaerain waa obliged to do, althoui^ ho 
waa bound to exact an assurance from the one making the 
appeal aa well aa from the one appealed against An aa- 
aurance could be required only on an appeal of thia kind. 
It could not be impoaed on the initiative of the adgneor.^ 
Sazly ehecka by the tempdral powers on prtvata waitsia. 
— One of the early checks impoaed on thia pracdee hj the 
kings of France waa the requirement of a dday of forty 
daya, after the breaking out of private war, before the rda- 
tives of the offending party could be attadked unices they 



••Da Oust* Bw CNieRft Piliiis, cte, p, 4aS| Aflippt i 
laoir, hm OmitiiiiiM dn BoiVTolsto. VoL n» pw i54, pw STL Mott 
of the «mr piBctiet of tlM lOddk AgM !• dcrlv«a fram tlM Mholsilj 
wmmrAm cf VwoL Njn 

tf Da Gus^ pb 4S0| BHMmnoir, fi SSC 

••Da Ongb, p. 48S| Bwmw i an i r , p. Stt. 

••Da OnQf^ p. 441; BtMOMMb; p. ass. 

••Da Ous^ p. 4aSs BwoMBoir, p. SSSw 

•iKji, Las Or^SiMt da Draifc IntcnHilioMl, pw aa. . 

•• Da Gbqgib pb 44a. 

m Da Ous^ p. 446^ •! Mf.; Bwmwianir, ppl tm, Mi, 9$ m§. 






1< 

had been present at the opening of the stnigi^e.^ A < 
tury or ao before this, however, in II289 at the Ck>rtea of 
Najera, Alphonae Vn of Castile had gone even farther hj 
forbidding all recourse whatever to private wan withoot 
a previous defiance, and by requiring a delay of nine days 
after the defiance before commencing hostilities.^ In 
1187 Frederick Barbarossa made a similar proclamation 
for the Empire, a respite of three days being required in- 
stead of nine.^ 

Oheeks by the OhnrdL— But at this period the most im- 
portant checks were those of the Church, especially the 
famous Truce of Ood. Originating in the County of Boua- 
sHon, in Southern IVance,^* it was rapidly taken up else- 
where and in 1095 was solemnly proclaimed by the Council 
of Clermont. As finally sanctioned by the third Council 
of the Lateran in 1179, it forbade hostilities from sunset 
ton Wednesday to sunrise on Monday, and on every day from 
I Advent to the octave of Epiphany and from Septuagesima 
|to the octave of Easter, and some of the decrees went even 
further than this. On days when hostilities were author- 
ised, priests, monks, lay brothers, pilgrims, merchanta, la- 
borers and beasts of burden were not to suffer violence. 
Those who broke the truce were to be excommunicated.^ 
This proving insufficient, the interdict waa resorted to, spe- 
cial judges were instituted and the Brotherhood of Ck>d 
waa formed, one of whose objects waa the enforeement 
of the foregoing rules.^ Undoubtedly, they were often 
broken, but they ezerdsed a great influence for good until 
the occasion for them passed away with the rise of strong 
temporal powers. 

Overthrow of private warfare by the rising poww of the 
stote.— The country least troubled by private wars was 
England. During the War of the Roses, however, she too 
suffered from them, only to be delivered by the strong hand 
of Henry YIL In France, as eariy as 1298, Phil^ the 

MHj^pwSS. 

^vy, p^ se, 17a. 

«vDiiiMiiit,l, 4S; Wallnr, I, U. 

MDeeNtalivm Or^orii, IX, U L, tit S4t St T^o^a et Pte% Oa 
1, If K7% p. SQL 

MK7B, pw SO; Da Cmg^ GloMuhn, VoL ▼. pw S, m slw Fluinil 
•ad VoL VI, p^ esOi Waid, Urn of Katka^ II, WL 



17 

Fair had foxbiddeii all private wan whfla lie himaeit waa 
at war, and, although in the reaction that followed hia 
death, even the forty daya' respite for relativei fell into 
dianae, the power of the state eventually reasserted itself 
and by an ordinance of 1361 private wan were forbidden 
altogether, and a eentory or so later nnder Louis XI were 
effectually atopped.** In the Empire the weaknesa of the 
Imperial Government allowed them to continue long after 
they were done away with in England and France. They 
survived longest in Poland and Scotland, lingering in the 
latter till well on into the eighteenth century."^ 

Seprisala^— Another evil of the Middle Ages waa the wide- 
spread practice of reprisals, that ia, of holding the subjects 
of another power responsible for the misdeeds or debts 
of feUow-Bubjects. This practice waa often combined with 
that of private war. Especially waa this true at sea. A 
notable instance of it occurred near the end of the thir> 
teenth century, between the subjects of two such powerful 
kings aa Edward I of En^and, and Philip the Fair of 
F^rance. An English sailor having killed a Norman aaQor 
in the port of Bayonne, certain Normans after applying* 
in vain for aatisf action to their king, seised the first Knjlish 
ship they could find and hung aeveral of the crew and 
Bome dogs at the same time, at the mast head. English 
saflon retaliated and things went so far that alliancea were 
formed between the En^^ish, Irish and Dutch, on the one 
hand, and the Normana, Flemings and Genoese on the 
other; and a naval engagement waa fought in which it is 
claimed that from eight:to fifteen thousand Normana were 
slain before the two kings finally stepped' in.** 

Approadi the Character of an ordinary judicial proceed 
lng«— As waa the case with private wars, this practice of 
reprisals soon eame*to have rules of its own. It waa the 
institution of the law of nationa which received the moat 
attention from the great Italian commentaton of the four- 
teenth century, and under them it came to have many of 
the features of an ordinary legal proceeding."* It waa. us- 
ually held, however, that reprisals were an exerdse of hi^ 

»Kji,p.8i. 

•iWud, Law «f KatioMb I, SSa. 

u Waid, Law ef VatioMb ^ aSS^ 

a . • • 



V 



18 BKffOBB o«mi:t. 

prerogBtiYe and were to be granted 1^ the aovereign and 
not by the eonrta,** althoa^ in France the right waa early 
exercised by the parliamentary eonrta.** Lettera of re- 
priial were not aeeorded against women, the clergy, stii- 
dents, .envoys, pUgrima, witnesses, merchants on their way 
to a fair, or mariners driven into port or on the coast by 
tempests."* Even within these limits, however, the praetiee 
of reprisals waa attended with great evils, ao that Ha o^ 
oration came to be restricted hj treatiea. 

n^ did not break the peaoe^— It ia to be noticed that 
whfle theae letters of reprisal were extremely hi|^ prcfog^ 
tive writs, they were in atrictneas nothing more and did 
not break the peace. Th^ later came to be known aa 
Special Letters of Beprisal to distingniah them from the 
General Lettera which daring the Enfl^h-Dntch eonilietB 
of the seventeenth century came to be granted generally 
to all Bobjects irrespective of whether th^ themselves had 
snifered or not. Both Special Reprisals and Oeneral Bo- 
prisala, in the stricter aense of General Letters of Bepriaak, 
have now become obsolete. The General Lettera fell with 
privateering through the Declaration of Paria of 1856 while 
we meet with few cases of Special Beprisals dnring the 

^ eighteenth eentnry, althongh sach important writera of that 
c^tory aa Bynkerahoek and Valin diacoss them in great 
detail aa though th^ were living institotiona. 

Oonfnslon in Termlnolqgy*— In the terminology of theae 
letters there haa always been much confusion. The dia- 
tinetion between a letter of mark and a letter of reprisal 

. may have been baaed originally on the fact that the use 
of the one at the other waa confined to the territoiy oT 
the power granting it, or it may have been due to the fact 
that the letter of mark designated the particular individual 
or property to be seiaed while the letter of reprisal waa 
not ao limited. At any rate they apparently soon esine 
to be used interchangeably and even to be popularly known 
aa letters of mark and repriaaL Aa time went on, how* 
ever, it seems to have become euBtomaiy for letters of 
reprisal to be granted to particular aggrieved individuak 
and for lettera of mark and letters of mark and reprisal 

■•H7ib^71. . . 



DBCLiBATIOm Off WJJL U 

to be laed ioiij in ease of Oenenl Beprinli. ^Wbether the 
latter eonld be granted in time of peaee waa long a aub* 
jeet of eontioTervy between En^and and the Continental 



Deolaiatiaiis cf War^r-^Early in the Middle Agea, dedara*! cw 
tiona of war came to be reeogniaed aa obligaUny. It aeena 
likely that this aprang from the necenitiea of the time» aa 
permanent embaaaiea had not been establiahed; but it ia 
possible that the praetiee of aending defianees may have 
been earned over from private warfare, whieh without 
them would have deseended into brigandage, and it may 
to some extent, have been an imitation of the old Roman 
practice. The dedarationa at first conaisted of letters of 
defiance, but later theae were supplemented o r sup planted 
by heralds, who were laat employed by Louia Xm against 
Spain in 1635, and by Sweden against Denmark in 1667." 

The dying out of the endavement of prisoners of war* — 
For one thing the Middle Agea ia especiaUy to be eom- \ 
mended, and that ia the abandonment of the practice of I 
enslaving prisoners of war. Thia waa partly the cause 
and partiy the effect of the dying out of slavery itadl 
The timea themaclves made slavery on a large aeale impos- 
sible. Strong governments are necesssry to the protection 
of commerce and wealth, especially weslth in davcs; and 
strong governments were lacking. The old agricultural 
slavea became aerfi; the slaves in the large dties disi^ 
peered aa the dties themsdves disappeared or dirank 
into indgnificance; while from the personal attend- 
ante of the nobility 'sprang the great part of the 
knights, the under-nobility of a later age.** On the 
revivd of trade, the dtiea, where wedth waa greatest, were 
themsdves sticklers for liber^. The times thus worked 
powerfully against davery. The demand for daves died 
out, and without the demand the continued enslavement of 
prisoners of war waa unlikdy. Sothodyingout of slavery T 
waa parUy the cause of the abdition of the enslavement of I )^ 
prisoners of war. On the other hand, it waa partly, the [ 
effect It waa inconcdvable to reduce a kni^ to slaveort"^ 

•rTwiM, Iaw of KatioMb la TfaM of War, pw sr el M|^ 
wBniBBcr, OnndiQs* ta" devtadMa Bwht^pif1ildit% p. WL 
••Lunat. Hktoiiit de nmBttiU^ VII» SSi^ 



' and thus what bad been tbe great means of reeniitinff 
dayeiT at Rome was loat 

Bf the tfane ot Orottoa^— Wben Orotini wrote, in 1825^ 
prieoners of war were no longer made ilaTOi ao aa to be 
either sold or f oreed to work or to do other thingi ineideiit 
I to the condition of dayeqr.*^ In aome of the treatiee, even 
aa late aa the ierenteenth eentmy, there are proiieiona 
that prisonen of war ehaU not be lent to the gaJleya; but 
emidemnation to the gaUqri waa evidentl y pe nal and not 
the ordinary praetiee. Thni» by Lonia Xr7th'b funooi 
ordinance of 1681, the captain and crew of an enemy prira- 
teer entering a I^rench river were threatened with eondem> 
nation to the gaU^ya.** Againet thoee who continued to 
entlave prisonen, howerer, the practice of endayement waa 
atiUkeptnp. Bynkenhoek tells ns that the Dnteh were in 
the habit of selling to the Spanish aa slaves the Algnines, 
Tunisians, and Tripolitana who fell into their handa." 

fhe MMUoe cf endavesMnl gave way to thai of i 



Ir-Fov Jh^davement waa snbstitnted the exaction of ran- 
aom. Sli0i were entitled to the ransoms of persons of hi^ 
rank, whose ransom exceeded ten thonsand livres or crowns, 
approximately the same sum, on paying that snm to the 
captor, while the captors themselves were entitied to the 
ransoms of persmis cd( lower rank.** If there were no con- 
vention fixing the amount of the ransom, the captor eonld 
fix it,** althoni^ it was costomaiy dnring feudalism to fix 
it at the anntud revenue of the prisoner^ estate, and in 
later timea at a month 'b pay.** Prisoners could be detained 
tin their ransom waa paid and even permanently. The 
Uvea ot thoae who could not ransom tiiemsdves were very 
insecure. The English prisoners taken at Pontoise in 1441 
were chained by their necks like dogi, and those who could 
not pay were thrown into the Seine. It waa also permis- 
.sible to refuse all ransom. A son of the Emperor FMeriek 
n died a prisoner among the Bolognese twenty-four ; 

MGrottaib ni 7, a. 

•tValia, IMIi d« PkMi, ToL 1, pb 44. 
M B|y«keraAocl^ Lew of Wer, p. tL 
»Kja, p. 't44| Walkv, p. MS. 

" " 111,7. a. 

m, H ^ ii KTib n- Mhfi 



<* 






OHITALn. tl 

after hk capture.** On the other hand, prisonen were ofteH 
released on their parole not to eerre againet the captor 
till thegr had obtained their ransom and to retam to cap- 
tivity when called upon to do so. Often these agreements 
were strengthened hj hostages, who at times paid with 
their livei the defalcation of their principals, althoogh the 
better opinion was that the only right over them was to 
deprive them of their liberty." 

Devdopmenl of ddvatayi^^Perhaps even more important 
than the dying ont of the enslavement of prisoners of war |^ 
was the development of chivalry. Eaily in the tenth een- • 
tory, when the Emperor Henry I introdneed tonmaments 
into Germany, he ordained that no one should be admitted 
who did not profess Christianity or who had been known 
to be gnilty of perjury, treason, daui^ter in odd blood, 
sacrilege or violation of women.** Profession of the Chris> 
tian religion, honesty, loyalty, fairness, respect for sacred 
things, and honor were requisites of a true knight, and 
the necessity of these qualities was so drilled into the sris- 
tocracy of the period that th^ became ingrained in all 
that was best in the life of Christian Europe and are today 
what we prise most highly in the qualifications of a gentle* 
man. Often the rules of open and fkir fi|^ting led to ab* 
surd results. One commander would challenge another to 
battle, naming the place and time for the conflict,** while 
the offering ^ aid to a besieged place was regarded as 
iUegaL** At Crecy the fight was precipiUted by the 
French forces unexpectedly and unpreparedly coming into 
contact with the English:^ Such entire neglect of strategy 
is hardly eomprehenaifale, but it is now and then a relief 
to look back on that age of punctiliousnesB from the some- 
times over-ingenious stratagems ci today. 

ProUbttlon of certain weapons and the exemption of 
nonoombatants*— A characteristic measure of the age of 
chivalry was the decretal of Innocent m which foribadel 

••VJ9, pfL f40, SM; Waid, Lew ef KatioiH, VoL 1,' ppi SOI •! ml, 

90S 9i Mf. 

•T Kji, pw S47 •! Mff.; Waid, n, pw 17f •! Mf. 

MWaid, II,pb lei. 

«Wsid,II,pw818«f Mf. 

MWaid,I,p.9S4. 

n OMa, Art of Wsr, m S07, •! Mf. 



^ 



I the use agauut CbristuuM of the arbalcvt or 
/ I tnd of maehinet far throwing projeetilei» soeh as the bol* 
lliita.** A ifiam, however, restricted the operstioii of this 
role to ugiist wars.** The prejudice against firearms is 
shown by the anecdote of Bayard, who, it is said, ''when 
lying mortally wonnded of a harquebus shot, thanked God 
that he had never showed mercy to a mosketeer.*"^ The 
provisimi of the Council of Clerm<mt heretofore cited, which 
extended a very general exemption to noneombatants in 
imvate warftre, seems to have been applied to pnUie wai^ 
fare also. Some of the leading canonists of the fifteenth 
ecntoxy considered it a dead-letter, however, and it was 
not nmisnal to hold for ransom wealthy noncombatanta aa 
wdl aa soldiers.** Merchsnts were generafly allowed a 
reasonable time to wind np their affairs and depart the 
coontry,** a provision to that effect, conditioned on ree^ 
procity, being indnded in the Magna Charta.** 

The dark side cf mediaeval waif are^— While there was ' 
thus much that waa bright in mediaeval war praetiee^ there 
was periiaps more that was dark and i^oomy. Pillage fn- 
/ variably followed a snccessfnl assault GarrisooB of places 
y taken by assault could expect little mer^, and often whvs 
X Iterms were granted the commandant and leading dtiaas 
were exdnded from them.** Those who were guilty of ob- 
stinate rcsistsnce were especially liable to find litUe mercj 
at the hands of the enemy. Incomparably the worst feature 
of mediaeval warfare, h6wever, waa the lade of disdiJine 
ysnd orgsnisation in the armies. Without these, rules of 
• sny kind mean slmost nothing. 

Plracttoe in the Xni^Udi amies.— The numerous Bn^ish 
srmy regulations of the period, however, would Indicate a 
better condition in the Eni^ish srmy than dsewhereu** 
Under Heniy ▼ the organisation was good and the dkei- 
.pUne effective, but this was exceptionaL Mountague 



nvju, p. let; DmnL Ong, lib. ▼, TU. X7, a 

nnip^p. Ml 

MWaUnr, HtaUny of Um Law of Katioat, Vd. I, fi 

f»Kj«, ppi m, m, •! Mf, SSi^ 

nVjn, p. 1S4| Waid, n, ^ SHw 

fTaabH 'fidMt Churt«% fi SOI. 

nnym, p. SS1| Wdlnr 1, ^ US. 



EKGUiH nucnoB. n 

ipvm th« following aecoimt of the eampaisiis of Edwafd 
III and Henry Y: *'In the lummer of 1346 an Bni^ish 
army, nnder Edward III, landed on the eoast of Normandy, 
amongst a peaeefol and induatrions people, who, nya 
Froiaaarty had never heard a battle-cry, or aeen an armed 
man. Th^ took and sacked Barfleor and Cherbonrg, and 
marched on St Lo. • • • 

''Fair and cheerfol province-delicions si|^t to a hyngiy 
invader, with its hamlets and chnrch towers, its substantiid 
farms and large sleek cattle, thick orchards and green pas- 
tures, sweeping up hill and down dale to the winding mai^ 
gin of the sea! The Eni^lish scattered themseWes over it, 
'ardant ei exillani U |wtt/ and so advanced, burning and de> 
stroying— burning and destroying— over the rich flats of the 
Beauvoisin to the suburbs of Paris. Immense booty was 
taken; yet the English host, when it met the power of 
France at Cre^, was reduced to the utmost extremity of 
want. 

''Nearly seventy years had passed from this time, 
when Henry V appeared before the gates of Ba^ 
fleur. This time no such scourge was to fall upon the Noi^ 
man peasantry, who now knew too well the martial sounds 
so unfamiliar to their ears in the dsys of his great grands 
father. It waa the poliqr of Henry, and waa agreeable to 
his free and kindly disposition, to treat the SVeneh as sub> 
jects rather than as enemies. Greatstoresof bread, beef and 
beer provided at home, followed his army, and he allowed 
nothing to be exacted from the inhabitants, even when they 
resisted his passage, but bread and wine. Sir Harris Nicolas^ 
in the Appendix to his Battle of Agincourt» has preserved 
the General Orders issued on this occasion, which followed 
pret^ closely those published in 1386 by Richard IL They /* 
prohibit strictly all bloodshed, insults to women and wantonx 
injury to property. . . . The ordinances of Henry were 
strictly enforced. The hanging of Bardolph for stealing a 
pix was a real incident of this campaign and it occu r red 
when the army was in its greatest straits, before the battle 
of Agincourt"^ The lack of organisation by which, in a 



MBenaid, Giowtk ef Iaws sad 0MgM «f Wsr, pfi ST-SS <OsfiDi« 

lass). 



/ 



u 

land of plenty, Edward in was reduoed to wanti k tyi^eal 
of the Middle Agea. 

War practloa of tlio Swln and BaliaiUL— Of apoeial inter* 
eat ia the war practiee of the Swiaa and of Ae Italiana. 
nie tormer aeem to have eonaidered terror one of their 
moat effective weapona, and they have been likened to the 
Bomana for the ferocity which they aometimei displayed.*^ 
The practice among the Italiana, on the other hand, except 
for the nae of poiaon, waa distinctly mild. In the twelfth 
chapter of the Prince, Machiavelli could not find worda 
too bitter for the mercenariea who had takea the place of . 
all other troopa in Italy. He says: 

''They endeavored with all possible industry to prevent 
trouble or fear, either to themselves or their soldiers, and 
their way waa by killing nobody in fight, only taldng one 
another prisoners, and dismissing them afterwarda withoot 
either prejudice or ranaom. When they were in leagaer; . 
before a town, they ahot not mddy amongst them in the' 
night, nor did they in the town disturb them with any 
aallies in their camp; no approachea or intrenchments were 
made at nnseaaonable hours, and nothing of lying in the 
field when winter came on; and all theae thinga did not 
happen by any ne^igenee in their ofllcers, but were part 
of their diacipline, and introduced, aa ia said before, to eaae 
the poor soldier both of labor sod of danger, by whieh 
practicca they have broui^t Italy both into davery and 
contempt"* 

War practioe at aeaK— The anarchy which prevailed on 
land during the Middle Agea waa, if anything, aurpaased 
by that at sea. Piracy waa wideapread and trucea and 
treaties of peace had little effect on maritime hoatLLitiea.** 
Piracy had not been atamped out at the end of the Mid> 
die Agea,** but a more or leas firm control had been gained 
over the forcea avowed^ in the aervice of belligerenta hj 
the requirement of privateering commiasions and the ea- 
tabliahment of institutions similar to the Court of Admiralty 
in England. At first, the validity of priiea had been ad- 



n OUMB, Art of War ia tht lOddk i^fn, LnOiitt Priw Xmij, r^ 61. 
MJIadiiaTtni, Tb» Priae^ Ghap^ ZU {Tnm, MMqr). 
M^yi, ppu tll-tia. 
MWaBnr, 1, ^ 161. 



XATAL WABVAU. 25 

judged rammarilx 1^ the admiral of the fleet, but with 
the grant of piiTmteering eommiaaioiie the royil power iii- 
■kted on judging the eonduet of its rabjeett itself. The 
Court of Admiralty in Eni^d dates baek to the rdgn of 
Edward in. Under Henry V, private Tessds wera reqinlred 
to bring their prises into eourt befora disposing of them 
and to make a declaration eoneeming them under penalty 
of 



•»J% » 



\ 



/ 



t§ QBOntJI Alio Hit 



CBAFTEB nL 

OBOmn AHD HIS 



Iht B«ininaiiM and tlit omlbiinl of Utanlon ch tlit 
met and law cf war«— In nothmg k the change from medi- 
aeval to modern timei more notieeable than in the intense 
interert that eame to be manifested in everything the an- 
eients had to teach of the art of war. Especiallj in Italy 
and Spain, this resnlted in a great oatpnt of works on 
the art of war, which was followed somewhat later 1^ a 
similar profusion of works on the law of war. 

Piffino BeDL— Of the Italian writers, the most notoble 
was Pierino Belli (1502-1575), who ocenined a position ss 
'militsxy jndge in the armies of both Chiurles Y and Philip' 
n, and later was one of the most respected members of 
the Coondl of State of Emannd Filibert of Savoy, ffis 
work D€ r$ mUiiari ei d$ hdlo appeared in 1563, and was 
dedicated to Philip IL ''His purpose is merely to remind 
princes of what is permissible and honorable in the dee* 
laration of war and condnsion of peace; what should be 
the treatment of combatant enemies, of prisoners, of the 
non-eombataiit popolation, of proper^ of iH kinds, animate 
or inanimate. BelliV conception of his subject wss an ad- 
mirable one» bnt he was not so snc cc s sf ol in working it 
oat in detaiL He seems to be led sside in order to timdi 
upon sll the qnestions which had come before him as mili- 
tary jndgOy and indeed apologises for defects doe to an 
active life spent for the most part at a distance fh»n 
bookB.»« 

• l^anidi witters*— In Spain the 'controversy over the 
right to endave the Indians cansed spedsl attention to be 
directed towards the law of war and the rights it gave. 
Two Dominicans, FrancMiens ^ctoria (1480-1546), a pro- 
fessor at the University of Salamanca, and Dominicos Soto 
(1494-1560), hii pupil, gave scientMe form to the 

lEbnud, BtodiM Ib IMtnatioMl Lmr, fp. 4$^^. 
8m alM Kjib Lt Drait dm la Qnm at ks T 
p^ I70-mL 



tPAXuu winms. t7 

which their feQow-Doniiiiieaiit Lm Cua% to devotodlx 
urged in favor of the aborigineB.* In hie BeUciwne$^ Tie* 
toria eondemned the danghter of innoeente, among whom 
he indnded women, children, agrienltnrietB, strangera and 
the clergy. He eontidered the aeiinre of property jnetiiiable. 
only ae a meana of effectively waging war or of aatieiying 
an injury received, and declared elavery to be no longer 
a legitimate consequence of war between Christiana. He 
also maintained that hostago^ unless th^ bdonged to the 
arms-bearing dass, could not be put to death on a breadi 
of fdth by an enemy. He treated the slaying of enemies 
after victory as lawful only as a punishment for some 
offeose, or where peace and safety could not otherwise 
be secured. He deemed the plundering of a country pei^ 
missible only where necessary to carry on the war, to deter 
the enemy or to rouse the spirits of the soldiers; and 
conduded by urging the conqueror to exercise his ri|^ts 
over hostile terriUny with Christian moderation.* Soto, 
Victoria's friend and disdple, followed in the same line. 
His ability is shown by the fact that he was sent as first 
theologian to the Council of Trent by Charles Y and aftel^ 
wards became his confessor.* 

Balthaiar Ayala^— Another cdebrated name is that of 
Balthasar Aysla, who was bom in Antwerp in 1548^ and 
died in 1584. He was judge in the armies of the Mnce 
of Parma, Alexander Fkmese, to whom he dedicated his 
work from the camp at Toumay in October, 158L Like 
Belli, he deals with questions of military discipline as wdl 
as with those bdonging to the law of nations.' 

The outburst of miUtsiy literature in Wngland a litfls 
later than in Itsly and Spain. Alberiens OenftOia— In Bng^ 
land an outpour of military literature took place similar 
to that in Italy and Spain, but its advent was ddayed till 
the troubles with Spain towards the end of the century.* 
The most notable among the works of this time is that on 
the Law of War by Albericus Oentflis. He was an Italian 
1^ birth, but with his father he early fled from Italy on 

tHoDuid, pp. Sl-64; Kji. Lt Dnil, sfta, pp^ 1S|, 1S|, ITU 
•WsUnr, I. pp. m-tSSi 
«Kja, Lt Drall, ele, pw isa 

• HoDuid, pw S4| Hji. pp. m-lSS. 

• Foit«eo% A BMaKj of tht Britiik In^f, ^ pi m. 



/ 



18 MOUUl Am Hit 

aecomit of Ut TtotmUoi bdiefi and foond hfa way to 
Qiford, wli«r« to beeama aaUUiahed in 158L Tha llnl 
part of hk great work Da Jnra Belli waa pabliahed in 
1588. Ha firaad tha treatment of the lawa of war from tlia 
qoMtionB of militaiy diadplina ao fully diaeamed bj Belli 
and Ayala, and from tha theologieal aaaodationa of Yio- 
toria and Soto.* Ha eonaidered in detail and with ezten- 
aira learning and aonnd judgment the eondnet of war and 
tha eanaea that jnaOj gire riae to it Walker aUtea that 
hia writingi were eharaeteriied bj ''a Tigorona atyla, di- 
reetneia of attack, and a Tein of ahrewd hvmor/' wUA 
knt them ''a aingolariy grateful TiyaeitJi and a high pet^ 
manent Talne."* Hia work haa been ealled a juriatie com- 
mentary on the erenta of the aizteenth eentury.* The dia- 
euaaion of contemporary erenta, which earned for it thia 
title added greatly to its practical Talne, but it muat alao 
haTC raiaed prejndicea againat it aa a acientiilc treatiaa. 
Smilar diacnmion waa accordini^y avoided hj Orotina.** 

■ai^ Ufa of Omiua^— Hngo Orotiua, the father of in- 
ternational law, waa bom at Ddft, Holland, on April 10^ 
ISm.^ Hia ability early attracted the attention of tha 
Grand Beuaionary, Bamereldt, and at the age of fifteen 
ha accompanied the latter and Count Juatin of NaaMn on 
an embaa^ to Heniy lY of France, who receiTcd him with 
marked favor. He became a lawyer and waa ao aucceaaftd 
that in 1607 he waa appointed Advocate-Oeneral to the Fiaa 
of Holland and Zealand, and in 1613 waa honored with the 
poat of Penaionary of Botterdam for life. Thia made him 
. chief magiatrate of that important place. 

Hia adroca^ of tha firaedmn of tha aeaa. Qrotina* 
early aetiirity ia identified with the advocacy of tha 
fireedom of the aeaa. Hia Mare Liberum an>eared in 
1G09. It waa originally aimed at the monopoly whiA tiia 
PortugneBC claimed in the trade with the Beat Indiea, but 
ita apedal object, when it waa actually publiahed, waa to 
atrengthen the Dutch againat aimilar daJma by tha Span- 



tHaOaaa, pp. h-n, W-JI. 

• Welte, I,^am 

• Nn, Lt SnII, eitt, PL laiL 

uHoii cff the iMla cf GiotW UU ait tOam fnm hb mi ly 



Clones' uwtL S9 

iudi." hktttf Orotim went on an embai^j to Bni^and 
to uphold the right of his conntiymen to fish in the teas 
of Greenland, which were indnded in the widespread daim 
of the Eni^ish to jnriidietion over the seaa aorroandinf 
the Britiah lalei. 

Hia eiile.r-All thia tame the Netherlanda were divided 
by a bitter religio-politieal atmgi^e between the Arminian 
State Bighta party on the one hand and the Calviniat Home- 
of-NaaMn party on the other. Grotina took aidea with the 
former, and with two of the other leaden, Bameveldt and 
Hoogerbets, waa arrested. On May 18, 1619, Bameveldt 
was ezeented. The story of Grotins* escape from priaon 
two years later reada like a tale of the Arabian Ni^its. 
With the cooperation of hia wife, he eacaped in a trnnk 
and made hia way to Paria, where for a tame he received 
a pension from Lonis XTTT. There he pnblished his great 
work, De Jure Belli et Paeia, in 1635. 

Hia last years^— He retomed to hia native land in 1681, 
but found it unadvisable to remain; and on the invitation 
of the ChanceUor Oxenstiem he entmd the Swedish service 
ss Ambassador to France, a post of the greatest importance 
in view of the alliance of the Iwo powers in this Thirty 
Yesrs' War. After a service of some ten yesrs he became 
dissatisfied and aaked fat hia recalL Queen Chriatina re- 
ceived him with great honor, but he declined to remain 
in the Swedish service and act out from Stockholm to Ln- 
beck. Caught in a aevere storm at sea, he waa compelled 
to land on the Pomeranian coast and to accept conveyance 
in an open wagon. 'Indcment weather overcame him, 
and at Bcstodc, sixty mfles distant, he waa compelled to 
seek the services of a phyndan. Hs died there two days 
later, on August 28, 1645. 

His greatness^— Besides being a great statesman and jii> 
rist, Grotins was a commentator on the Bible, the historian 
of his country, and a dramatist and Latin poet of no mean 
ability. His works along all of these lines were vduminoos. 
In theology his views were Tciy liberaL He long hoped 
to bring about a reconciliation between the Ftotestanta and 
the Catholic Church, ffia exhaustive learning, his profound 
philosopby, his literary gifia, hia Christian diarity and 

uWcrtUsil, PriaeVli^ pf. ST-6IL 



80 owo/mm axd hm niui. 

deq> lore of numkind mark him as one of tho most fllvs- 
trions ornaments of his raeo» 

Ohasgss for tho batter batwaan the lOddla Afia and fha 
time al iriddi Orotiaa ^nrota^— BVom the period of the d<Hni- 
nation of f endal ideaa to that in whieh Orotina wrote, aoma 
ehanses for the better had been made in the eondnet of 
war. In 1521 Franeia I and Gharlea Y had agreed to ex- 
empt from moleatation till the following Jannaxy, eaeh 
otiier'a Bubjeeta engaged in fiahing at aea.^ On land armiea 
had beoome better organised and drilled. The great gaina 
made in the time of Looia XIV were jet to be realised, 
bnt paid atanding armiea were beginning to be empli^jred, 
the nse of firearma waa tending to make peraonal eombata 
len eommon and the ranaoming of priscmas waa giving 
waj to ezehanga.^ 

Ohasgea f or the worsa. Cftvfl and raUgknu wars^— In cer- 
tain ways, however, eonditions had beeome infinitely worM. 
Sneh eyenti aa the massacre of St Bartholomew'a Daj : 
ahow the depth which reUgiona and civil discord had 
reached. Walker qnotea Montlnc aa saying: "It h not in 
thia case ss in a finreign war, when men fight for love and 
honor; but in a Civil War we mnat either be master or 
man, being aa we live aa it were all under a roof; and 
that^i the reason why we mnst proceed with rigor and 
craelty."» The Civil War in the Netherlanda waa a veri- 
table atmgs^e to the death. It ia well known that a price 
waa placed on the head of William the SQent, and that 
he waa aabaeqnently asssssinated. The condition of af- 
fkiia in the Thirty Yean* War waa the aame. 

Grolina' reaaona for wzitinf on the law of war/— It waa 
nnder these dreomstancea that Grotina wrote: *% for the 
reaaona which I have atated, holding it to be moat certain 
that there ia among nationa a common law of Bights whiA 
ia of force with regard to war, and in war, saw many and 
grave canses why I should write a book on that aid> ject 
For I saw prevafling throaghoot the Christian world a li- 
cenae in making war of whieh even barbarooa nationa would 
have been ashamed; reeonrse being had to arms for slig^ 
reasons or*no resson; and when arms were once taken up 

MWslkv, I, ^ IM. 
uWalhv»I,|Lllt. 



OIOVIUb wobs* 31 

aU rererenee for divine and bnman law waa thrown awaj, 
jnat aa if men were thenceforth anthoriaed to commit iJl 
Crimea without reatraint.^'** 

Diilinetlon between the law of nationa and tha law of 
natnre^— In hia treatment of the law of war, Orotina dia- 
tingoiahed between that which waa lawfol bj the law of 
nationa inatitnted throni^ the will of all or many nationi^' 
and that which, while it might go withovt poniahment and 
in that aenae be lawful, waa contrary to natural reaaon and 
BO not without fanlt^ The former, the law of nationa, waa 
to be deriyed from the practice of nationa; the latter, naU 
nral law, from philoeophera, hiatoriana, poeta, oratora, cit* 
iliana, canoniata and Schoohnen. 

Grolfaia' carefnlneia in not claiming for Ua own opinkma 
flie force of tuatltated law,n-That part of the law of na* 
tiona which dealt with war waa the conTcntional "law v 
of war" of hia contemporariea. Grotioa aeema to haTC been 
exceedingly carefol not to claim for hia own i^inicma the 
force of inatitnted law. He aolicitonaly aeparated the ndea 
which, from their origin in the Boman Law or in the prao* 
tice of military conrta, had gained nnqneationed acceplanee 
from thoae of len definite authority; and by forbearing to 
inyeat the latter, by the mere weight of hia aaaertion, with 
an authority wldch th^ did not otherwiae pomeM, he di^ 
armed oppoaition and aecnred a fayorable hearing for what 
he had to aay. 

Ba greateat contribution to the law of war induded «i» 
der hia law of natnre^— Hia greateat contribution to the law 
of war waa that which he included under the law of na- • 
tnre. The conception of a Natural Law, binding from ita 
▼eiy reaaonaUeneaa, waa not a new one. It had come down 
through the Schoolmen and the Boman juriata from the 
Stoica. But Orotiua 80 daborated it, and ao diatinetly made 
it hia own by applying it to international relaticma that 
Birier haa declared him to be juatly deemed the father of 
both the Law of Nature and the Law of Nationa.** The 
fundamental principle of the Law of Nature apidicable to 



i«GieliM» PxokgoBMu, Fto. ta (TMm. Wknrril). 
If OratfMb Bk. L I, 14, L 
uOiethp, n^ 4, ^ a. 

«t BMn; latrodoctioB •■ Drait dM Gmm^ pp^ aai. 



tt oBomrn AMD mM raaa. 

WW, whieh Grotivs laid down, was that ''the measiira tliat 
y^ are neeenary (to a lawfol end), necenitj being taken not 
in phyaieal exaetneH, bat morally, we baTo a right to 
nee."* In other woida, he ennnidated the prindple that 
eomparatively nselen injury ahould be avoided. In the 
light of this general principle, Orotins went on to treat 
the TarioQs parts of the law of war in detaiL 

no ri|^ to kin does not extend to 
Children are ezeosed from fhe right to kill by theb age^ 
^ women by their sez. Tho .:amo ndo is to be laid down 
for men whose mode of life h repugnant to arms, sneh ss 
the clergy, students, husbandmen and merehanta, CaptiTes 
should not be put to death, and quarter should be given 
both in batUe and in siege.*^ ''Exeeptions by no means 
just, to these precepts of equity and natural justice are,'' 
says Grotius, "often alleged: Betaliation: the necessity of 
striking terror: the obstlna^ of resirtance. It is easily 
seen that these aro insufBdent' arguments." Where the : 
disarmed have committed a broach of the laws of war, th^ 
may be put to death; *'bnt,'' continues Grotius, "ss to 
Betaliation, nature does not allow it except against the 
offender himself. Nor is it sufficient, that the enemy is by 
a sort of fiction, conceived ss forming one body. * * * 
The advantage whiA is expected by striking terror cannot 
give a right to kill men; but if we have a right, it may be 
a reason for not remitting it An obstinate adherence to 
one's own party, if their cause be not indecently bad, does 
not deserve punishment; or at least, not a punkhment ex* 
. tending to death; for no impartial judge would so decide. 
• • • Still less is such killing justified by grief for calam- 
hy suffered."" 

limits to ravaging^— As to ravaging, "except there be 
some motive of utility, it is," says Grotius, ''foolish,. for 
/ no good of your own to harm another." Ravaging is tol> . 
erable which in a short time reduces the enemy to seek 
peace. But this will not be the case, first, where, althou^ 
we be in a country yielding provisions, our possesdon pre- 
vcnti the enemy from availing themsdves of the sopplys 
second, where, although the possession is doubtful, there 

MGiothp^ in, 1, ^ 1. 
■iGioiiip,iii,a-ia. 

ttOvotiMb I1I» !!• IC 



are •trcmg hopci of vktory of whi A the rowaid wiU be 
both the land and its fruits; third, where the enemgr eaa 
rapport hinudf from other qoarterty as if the aea or bonn^ 
dariea on another side be open; and finallj, where things 
are of saeh a nature that thej are of no use in making 
or carrying on war, saeh as ornamental works, religioDs 
establishments, monnmenti for the dead and burial plaees.** 
''It is also most true,'* observes Orotius, ''ss some theo- 
logians have noted, that it is the duty of rulers and leaders^ 
who wish to be reckoned Christians hj God and hj men, 
to abstain from storming of cities, and other like yiolent 
proeeedingi; whiekcannot take place, without great ealam- 
itj to many innocent persons, and often do little to promote 
the ends of war; so that Christian goodness almost always^ 
justice mostly, must inspire a repugnanee to them.*"^ 

Blgkl of ao^ilrlnf p ro perty fhn the enemy.— ^ to the 
right of acquiring property from the enemy, this, accord- 
ing to Grotius, is limited by the extent of the enemy^i debt 
to yon, ''except that beyond this, thingi necessary to 
your safety may alM> be detained, but are to be restored 
when the peril is over, either in themselTes or in their 
price. **** But Orotius makes a distinction between civil 
debts, those due to rectify an exiiting inequality, and those 
due as a penalty for wrong-doing. For the first kind, the 
property of the snbjecti may be treated as security, ss where 
reprisals are ordered, and so many be taken,** but "suA 
an obligation, imposed on the property of another, is" he 
says, "an odious rule, and thcraore ou^t not to be ear- 
ried further than it appears to be actually settled.''*' IHth 
debts, due to rectify an existing inequality are elsssed 
those arising from war undertaken to rectify watk b^ 
equality.** * 

Exhortation to respeol private p ro per ty« r— "But,*' says 
Grotins, "the rules of charity are wider than those of 
justice" and "humanity requires that we should leave^ to 
those who are not in fiiult in the war, and who are only 

nOnUw, m, 1-4. 
MOieliM, m, 1S,S,C 
nOntim, m. IS, 1, 1. 
MOraliM, in, 19. 1, t. 
nOnitiw, m, 19. a. 
MOntim,Ili; 1S,S. **- 

B 



; 



/ 



34 GMTICS AXD HIS TIVIB. 

bound m suretiei^ the thingi which th^ eannot do wHli- 
oat better than we can, especially if it appear that thqfr 
will not recover from their citj what thej thns lose;*' and 
''this also is to be noted, that so long as we have a hope 
of reedving onr debt from the original debtor, or from 
those who have 'made themselTcs debtors bj not yielding 
mst right, to come npon those who are froe from ftalt, 
althoQi^ it may not be at variance with strict law, is eon> 
trsry to homanily/'* 

BansoDL— Prisoners of war no longer being made daves, 
''it wiU,'' declares Grotins, "be the best coarse to exchange 
the prisoners; and next to that, to let them be ransomed 
at a reasonable price. What this-is, cannot be precisely 
defined, bnt hamanity teaches ns that it shonld not be 
stretched so far that it leaves the prisoner withoat the ne^ 
essarics of life.">» 

Mbdsralian in Oonq:nsst— In Conqaest, it is often not 
only a measore of hamanity bnt also one of prndenee to 
permit the vanqnished to retain their power of govern- 
ment, if not wholly, at least in part; bat, even when all 
anthority is taken from them, they shoald, so Orotias main- 
tains, be allowed to retain their own laws with regard to 
public and private property, their own castoms and ma|^ 
istrates, and, as part of tlds indolgence, the observance 
of their own religion, except so far as they may be per- 
saaded to change.*^ 

Ooodnslon.— In condasion, Grotins says: "May God 
write these lessons,— he who alone can, — on the hearts, of 
an those who have the affairs of Christendom in tlidr 
hands: and may he give to those persons a mind fitted to 
onderstand and to respect Bights, divine and human; and 
lead them to recollect always that the ministration com- 
mitted to them is no less than this; that th^ aro the gov* 
ernors of Man, a creataro most dear to God."** 

Inflaenoe of Qrotlas' wwIl— The work of Grotias made 
a tremendoos impresdon. Gostavas Adolphas, the greatest 
captain of his age, expressed the highest admiration tor 
the anther and recommended that he be taken into the 

atOratfa^ n^ !%'«. 
MOratiMb HI. 14, Si 
nOratlQib m, li» 7-liL 
«iGiettai»III,SibC 



A 



sAJfuiL punonioBr. Si 

Swedidi service.** It k said that he always carried a eopj 
of the De Jure Belli et Paeis with him. Editions, trandar 
tions and conunentaries multiplied on every hand and the 
recognition it had gained for the law of nations and of 
nature in the field of jorispradence was manifested by 
the establishment of a chair in that snbjeet at Heidelberg 
by the Elector Palatine, Charles Lewis, in 1661.** 

Samnd Pnfendorf.— The first incumbent of that chair 
was Samnd Pnfendorf. Bis contributions to the laws of 
war, however, were comparatively unimportant. They o^ 
cupy but a small part of his immense work. 

Oondnet of the XUrtj Tears* War^— Qreat as was the 
influence of Orotius* work, it could not be expected to re> 
sti»« to its normal condition a war such as that of the 
Thirty Years, which had been commenced in dvil and re- 
ligious strife and carried on with crudty and bitterness. 
Gustavus Adolphus was so high-minded and maintained 
such ezcdlent disdpline that he was able to prese r v e in 
his army a*high standard in the observance of the laws 
of war, but other commanders had neither his power nor 
his good-wilL Six years after the publication of Orotius* 
work occurred the honors of the siege of Madgeburg. 

Oliver OromwdL— A notable instance of the old praetiee 
of using terror as a means of warfkre was the refusal of 
quarter at Drogheda by CromwdL ''It will tend to pre- 
vent the efPndon of blood for the future^'*** he said. Poa> 
sibly it did this temporarily, but it is also said that its 
''memory still hdps .to separate the two races Cromwdl 
wished to unite."** From these events we turn with rdief 
to a newer and better era. The Treaty of Westphslia (1648) 
marks roughly the end of the old. - 



MBorigDy, Life cff GwMm, p. ISS; Hcly, Btode rar b Dnii di la 
Qttcm da QroCioi^ fL Sa. 

MWdte,I,8ST. ^ 

Mlfofflij, Olifcr CnmwOU p. ML 
»nitKGRHral|,p.9SL 



win or 



CHAFTEBiy. 



OF 



i\ 

I: 



/ 



of a now onw— From tho Dntek wan of 
Look XIV to tho praent timo tho chiraetar of war has 
been rnneli tho aamo. If anything^ the wan of the oariy 
part of thk period woro len aevoro tbaa thooe of 
reeent tmea. Th^ lacked the leUgiooa and ehril 
of the wan whieh had pneeded them and were fwwntially 
■tmgi^ea between prineea, who ngaided with diadain the 
partieipation of the maaaea in politico or war. The armiea 
were amall, paid, hii^ily-trained bodiea. Their leaden took 
pride in their Imowledge of the art of war, and atntegjr 
in partiealar, and for the parpoaea of atntegy. the hob* 
banding of their own reaonreea and thooe of , the eoontry 
throng whiA thej were marching waa abadlntelj neoea- 
aary. FarthermorOt the work of Orotina had eryatalUied 
pnblie aentiment and it waa not nnnatnral that the ad^ 
mircn of Gnatavna Adolphna, aa all the great genenda of 
the period aeem to have beo!, ahoold alao have admired 
the great work which had been hia eonatant goide. 

The plaoe of tho herald-at-anna takan bj fte parmanani 
ambaaaiaa^— With tho catabUahment of permanent embaa- 
aiea^ the aending of heralda-at-arma to dedaro war grew 
to be inoongmooa, and aa we hayo aeen, the lart inatanee 
€i that eoatom waa in 1667.^ It had aerved aa a warning to 
the enemy and aa the teat of fall legal war. Am a warning 
to the enemy, ita plaoe waa taken and nmA mon than 
'taken by the eatabliahment of the permanent embaaaiea, 
which fteilitated tho preaentation of demanda, allowod of 
the continnanee of long negotiationa, and aenred aa a 
aonree of information of tho preparationa of a poaaiblo en- 
emy. Even anch writen aa Bynkenihoek and Ward, who 
did not bcliero in the neeeaaity of a formal declaration, 
thon^t- it neeenary that there ahoold be a demand of 
aatiaftetion for the injury eomplained of, and a denial or 
delay of the aamo before roeonrao to arma. Formal dee- 



p. m. 



nira DB0L4BAXioxt. n 



Imratknii as warningi to the enemy* were supeneded bj 
ultunatnnii, or tlie mptnre of diplomatie reUtioiie under 
such ciremniitenfife as to leaye little donbt of the intentionB 
of the parties. Fftietice under the new order of things 
was far from what might ha^e been desiredt but fhe new 
institation in itself was fKt^iM&t caleolated to guard 
against sorprise, treaeheiy and cHdoyaltgr than the old. 

The eld deoiaration a test of Isgal war raCher tliaa a 
warning to the enenijir— Bat the old declaration of war 
had served ss a test of full legal war, as weQ ss a warning 
to the enenqr* and this, aeeording to Grotnis» was its real 
ngnificanoe. He sajs that the reason for it was ''that it 
might be dearly known that tiie war was undertaken, not 
as a venture of private persons, bat by the wHl of the two 
peoples, or their heads; for from this pablie character arise 
pecoliar effects, which do not tske jdace cither in a war 
carried on agahist pirates, or in one whiA a king makes 
against his sab jects.'" It is in this sense that the declaration 
eontinaed tor a long time to have a more or less obligatory 
character, and it is mainly in this sense that it has been 
revived todsy by The Hagae Convention. It may be inter- 
esting to note how from a necessary preliminary to war it 
came to be little more than a public recognition of its ex- 
istence. 

Dedaratlons were not neoesmy sgainst those JelniBg 
the enemy^— In the first place it must be remembered that 
Orotius himsdf held thmt no declaration was necessary 
against those who joined themselves to the enemy.* Nor 
did the mere giving of sad to one of the bdligerenls re> 
qnire a declaration. Many of tke earlier cases of war wiUi- 
out declaration wtite cases of this kind. Elisabeth justi- 
fled her not declaring war against Philip of Spain on the 
ground that she was merdy aiding The Netherlands in 
accordance with andent treaties. Bad Gustavus Addphns 
justifled his failure to dedare war against the Ihnperor 
by the fact that the year previous the Emperor had aided 
the JDngot Poland against him without dedaration. Maqy 
of the case* given by Colond Maurice in his Hostilities 
without Declaration of War are of this kind. Numerous in- 
stances of this occ u rred in the War of the Austrian 1 

•in, XL 



38 wAis or wnxom. 

rion, in the Seven Tetn ' War, and in tlie War for Ameriean 
Independeneeu All the old mle required was that war 
ahonld be eommenced by a deelaration. When onee eonif* 
meneed, others might be embroiled in it without dedara- 
tion. It is easy to see how important this exception was, 
cspeeially during the eighteenth eentuiy, when a large pert 
of Europe eventually came to be involved in the numerous 
wan that oeeurred. 

Hot ^Aers a war was eoimnenoed under pretezl of Ude. 
— In a number of other eases wars were eommenced under 
pretext of title. They were ostensibly civil wais, and 
so esme within another exception to the old rule, that de^ 
larationa were not necessary in dvil war. It was thus 
that the War o f Dev olution was commenced in 1667 by the 
daim of Louis XIV to the Spanish Netherlands, the War 
of the l^mnish Succession in 1701 by the daim of the Emp 
pcror Leopold to Lombardy, and the War of the Aus- 
trian Sueccssion in 1741 by Frederick the Great^i dahn 
to Silesia. Frederidc likewise disclaimed all hostQe inten- 
tion in his sdzure of Saxony in 1756. Ostensil^y then 
theie were not violations of the old rule as to the necessity 
of dedarations of waif. . 

Twfluenee of maritinie prslenslons and stmgi^ for trade 
and tenlloiy in the eolonlas^— The above cases, then, did 
not mark any change in formal practice. Of more import- 
ance were the informal hostilities growing out df (1), the 
maritime pretennons such ss those of the En^ish in the 
four sess and those of Spain in America and (2), the strug- 
^e for trade and territory in the colonies; The action ol 
men like Drake had little or no direct effect on the laws 
of war, as their actiims woe but little, if any, removed 
firom piracy, but the example of their lawleis depredations 
was not without its effect when the race for cdonial pes- 
seni<nis commenced. Thus the expedition sent by Crom- 
wdl to the West Indies in 1654^ which resulted in the ae- 
quisition of Jamaica, was little better than a filibustering 
expedition, while not much more can be said of the expe- 
dition to Africa and America of Admiral Holmes in 1664, 
which finally resulted in open war between the Eni^ish 
and the Dutdi. Of not quite so objectionable nature were 
the eolonid hostilities carried on between the Dutch and 
the PMtuguese, which resulted in a dedaration of war in 



niOK DECLASATIOm. 89 

1657, as Portugal's independence of Spain had not jet been 
generally recognixed, so that any action by or against her 
was of an exceptional natore. These hostilities^ aa wdl as 
the blockade of Porto Bdlo in 1726 by Admiral Hosier, and 
the fighting which commenced in America in 1754 between 
the FrenA and Eni^ish had a perceptible inflnenee on the 
Eoropean practice of commencing hostilities. For instance, 
the blockade of Porto Bello in 1726 was followed by the 
siege of Gibraltar in 1727, without formal declaration, and 
the fighting between the French and En^^iah in America 
in 1754 and 1755, was followed by the expedition against 
Minorca in 1756, also without a declaration. Bat their im- 
portance is likely to be exaggerated, as the colonics have 
always held an exceptional place in the pnblie law of 
Eorope. 

The seqaestrathm of i ira perty and the Issnanee of general 
letters of marqne and re^isal prior to a dedaratton the 
detemdniag factor in making prior dedaratloiis nmmees- 
sacy^— Whatever importance incidents like the above did 
have in aceostoming the public mind to hostilities with* 
out declaration of war, the determining factor that led to 
the quite general acceptance of the doctrine that a formal 
declaration was not necessary to constitute war in its foil 
legal sense, was the practice which became general from 
the middle of the seventeenth century, of sequestrating 
property, and of granting general letters of marque and 
reprisal, in contemplation of war. One of the early in* 
stances of this practice occurred in 1664, in oonnectioii 
with the war between the Eni^ish and the Dutch. Oa the 
sixteenth of Deeembec, 1664, Charles n issued a prodama* 
tion empowering his subjects to make reprisals on all Dntdi 
ships. This was followed by a similar declaration on the 
part of the Dutch on January 24, 1665, although no dec- 
laration of war was made till the following Mi^ch.* It k 
probable that it was in connection with this that De 
Witt made his fkmous statement that '^he saw no differ- 
ence between Oeneral Reprisals snd Open War,'* rather 
than in connection with the grant of letters to the agent 
of the Ejiights of Malta, two years esilier aa supposed by 
Twin.* The resson for this action on the part of the Eng^ 



«Lediu«. TU Vml BUtmj cff &«laad, ^S. 
• lVlii,l,SL 



40 WAMB 

Imh King ii rtrj qnamtly pat in Kennet's Cdleetion of 
Bnglkh History,* where be layi: ''It it, boweyer, a jne- 
tiee to observe, that tbie way of dealing witb oar friends 
before we bad pronoaneed tbem enemies^ was not merdy 
a tri^of France, or an intrigae of oar own ministry (as 
some baye lab<»«d to represent it), bat it was the very 
voice of tbe Englisb people, and especially tbe eiy of all 
oar merebanti and traders. Tbe city of London was so 
fall of all resentments against tbe Dnteb for engrossing 
and osnrping npon navigation and eommeroe^ tbat tb^ 
not mily lent a bondred tbonsand poands (ss before r»> 
membeied) for eacpedition of tbe fleet, bat wben tbe king 
still wanted anotber like sam, tbey advanced it witb tbe 
same readiness." It was tbe granting of tbe general le^ 
ters at this tame that Lord Hale instanced as an example 
of war commencing witbont a solenm declaration.^ Eng- 
land, however, was not tbe only offender along those lines, 
for wbfle tbe seisare of tbe goods bdonging to tbe Dnteb 
in 1667 by tbe French may be consideiiBd aa an instance 
of reprisals properly so-called, as distingaisbed from repri- 
sals in contemplation of war, tbe same cannot be said of 
tbe seisare of tbe goods of tbe Dateh by Loais XIV m 
168a« 

no msmoiy of tha old nde lingered oOir— Tbe nnmber 
of ezamploa of these seiaares in contemplation of war waa 
tbe principal basis for tbe contention of Bynkersboek in 
1787 tbat Orotios' assertion that tbe castomazy law of 
nations reqnbred a declaration of war, conld not be saa- 
tained.* BM despite tbe freqnency of these seqaestratioos 
and grants of general letters of marqne and reprisal prior 
to tbe declaration of war, it waa long felt that stisares 
made prior to a declaration were void, and that tbe ships 
seised sbonld be banded back. Thns fai tbe negotiations 
between Stanly and Bns^y in 1761, looUng to tbe terminal 
tion of the Seven Tears* War, it was demanded that all 
private ships taken prior to tbe declaration of war sboald 
be restored or compeosated ftor, becaase taken contrary to 

•%WL . 

tpiMs €f tht Ciewa. lea-isi. 

• ainibmho^ pp^ li-lT. 



niOB DECLABATIOira. 41 

the law of natioiii.'* And althongli in the final treatj noth- 
ing waa taid on thia aabjeet with regard to FrenA ahipti 
it waa agreed with Spain that the deciuon of priaea made 
in tame of peaee by the aabjeeti of Great Britain ahoold 
be referred to th^ Britiih Admiralty, to be judged aeeord- 
ing to treatiea and the law of nationa.^ Byen aa late aa 
Angnat 12» 1778^ Lord Chaneellor Thnrlow wrote t ''I 
find a doobt hath been atarted whether it be eorreet to 
make a priie or to eondemn it aa eonfiaeate, and atill more 
to diatribnte it to the eaptoia, before a Declaration of War. 
Upon the laat it ia inaiated that the gooda of nationa not 
declared Enemiea can at moat be taken aa Bepriial, and 
detained only aa pledgee for latiafaetion. It ia aaid that 
thia waa done in 1754, and that no priiea were aetaally' 
eondemned or diatribated before Dedaration of War at 
that period.**" Thii waa written in a letter to Philip Step- 
hena, Seeretaiy of the Admiralty, reqneating that a ear^ 
fol eeareh ahonld be made for preeedenta in these matten 
anbaeqnent to the Bevdntion. 

The qneition put at reit for An^o;Amerleaa ooorl% al 
leaiti by Lord BtowelL— All doabt of the legality of the 
aeisore of private property of the enemy before the decla- 
ration of war waa finally aettied for Britiah and American 
eonrta, at any rate, by Lord Stowdl, in the caae of The 
Boedna Loat" when he hdd that the aeisore of Dutch pto|^ 
erty mi€ler"an embargo in 1808 waa at first eqniToealy bat 
that aa the tranaaetion ended in hostilities, these had the 
retroactive effect of making the original sdaore hostile, mad 
the property seised good prise. In other words, he hdd 
that acta of force need againat another nation mi|^ not 
eonatitnte war in themadves^ but that if war followed, 
it had a retroactive effect and eonstitoted the first acts of 
force, the cmnmencement of the war. From Lord Stowell^i 
time thia view that war dedarationa might have a retro- 
active effect, and did not necessarily precede the eaptore 
of private property, waa generally sustained, eapeddly in 
Eng^d and the United States. 

Xmbargoea and letters of marque and reprisal BOW ttt^p 

MWaid,|LSa. 
uWaid,|Lie. 

unTeiM^ar. >r 



49 WAis ov niir< 

€t fht ptft— It k mteMting to iiot« tluit tlM pnMom 
whiek bid been the special oeeasion of the iiieocporation 
of the retroMtnre effect of dedaretioni of war into the 
law did not long sonrive Lord Stowdlli dediioiL Gnmti 
of Ictten of marqne and repriaal, and enibarfDea in eon- 
templation of war, soon beaune things bt the pact The 
former were in effect abolished bj the Dedamtion of Puis, 
and from the Crimean War it has been cnstowiaiy to allow 
appertain time after the outbreak of hostilitiM for the de- 
partore of merehant ahipa bdonging to the nationala of 
thA «nemjr» It ia for this reason that some ha^e claimed 
that the role laid down hj Lord Stowdl itseif had changed, 
bnt the carefol stodj of the wars of fhe last.llflif yean . 
bj IL Dapoia shows this not to have been the easei'* 

Ho spedal form for declarations^— Since the old sending 
of heraldMttparmSy there haa been no particidar form tor 
making dedarationa. Most of those ci fhe seventeenth and 
eighteenth ecntories seem to hsTc been printed dedarationa • 
pablished at home. An interesting sorvival of a part of 
the old eostom of declaration by herald was that ii Bng^ 
land against France in 1778, as described hj the Bossian q^) 

enToj to London.^ ''A herald, drawn from the moonted 
goard of the king, read the dedaration of war to the noiae 
of trompeti and timbala, before the palace of 8t James, 
where the king stood in the embrasure of an open window, 
hat on head ud sword in hand; thia swofd, like the Um- 
pie of Janns, which remained open among the Bomans till 
peace, remains unsheathed in the dinrdi till the end of 
hostiUties.">« In the United States dedaratiow of war 
have taken tke form of acts of Congress, and have been 
dedarationa of tha cmstence of war rather than dedtfa- 
tions of Aiturs war. 

Bobstttatloii of ocBtribntioos for pfDago^-One of the 
greatest advancea ever made in the eondnet o£ warfare 
was the sabstitntion, during this period, of eontribations 
for pillage. Gnstavna Addphns had ransomed towns from ^ 
pilliMBe during the Thirt y Te ars' War,^* and the generals 
of the period of Loois XIV followed in this aa in other 

MlSB.aiXLF,7tiL 
wn uvitf, tsc 

ulUrteH, a Btearfl 4m IMUt tamAm par hi 
If Han, latinnHnMil lav, f^ 44SL 



OOXmBOTIOVtb 48 

bnuielies of war the footsteps of their great master. Of 
the early practiee of eontribntions, Vatt eJ sa yst *'TheIoiif 
wan of France in the reign of Louis XIV foniidi an bn- 
stanee whieh can never be too mueh commended. The 
sovereigns being respectivdj interested in the pieservatien 
of the conntiy, need on the commencement of war to enter 
into treaties, for regulating the contribationB en n sup- 
portable footing: both the extent of the coontiy in whidi 
each coold demand contribations» the amoont of them* and 
the manner in which the par^ sent lor levying 1 
to behave^ were settled. In these treatiea it 
that no hodj of men nnder a certain nnmber, ahoold adp 
vance into tiie enemyls conntry b^ond the bovnds agreed 
upon nnder the poialty of being treated as pmU tUm 
(marauders or robbers). This was preventing n mnltitode 
of disorders and enormities^ committed on quiet people^ 
and generaUy without the least advantage to the i 
atwar.''^ 

Harshal Base's method of levying 
shal Saxe describci the methods purraed hj him: '*An 
experienced general, so -far from maintaining the tro<^ 
under his command, at the expense of their sovereign, wfll, 
hy raising contributioDS, secure their subsistence for the 
ensuing campaign, so that being well lodged, clothed and 
supported, they will conseqnentiy be ca^y, contented and 
happy. In order to accompUsh this, it will be necessaiy 
to fall upon a method of drawing supplies of pr o visions 
and money frmn remote parts of the country, bat without 
fatiguing thereby the tiroops too much; large detachments 
are exposed to the danger of being cut off 1^ the enemy; 
are likewise detrimental to the seivioe, and rarely prodno* 
tive of those advantages which are expected frmn them; 
the best way is to transmit to those places frmn wldch con- 
tributions are required, circular letters, threatening the 
inhabitants with militaiy execution, on pain of their re- 
fusal to answer the demand made from them; which ott|^ 
at the same time^ to be moderate, and proportionaible to 
thdr seversl abilities; after which, intelligent oflleerB must 
be seleeted, end detached with parties of twcn^*llve or 
thirty men, allotting to each a eertain number of villages, 

MVftttd, Bk. m, Ghapu DC, Bee. Mj nt eko 
tie LftWB Md Ums« of War. pp. lOl-lSl 



44 wm OF nix o& 

and giTing tkem atriet orden to mareh hy m^ onlj, and 
not to plunder, or commit any manner of outrage <m pain 
of death. When they arrive at their appointed places thqy 
most aend a noncommiesioned ofBeer and two men in the 
evening to the chief magistrate to know if he fa prepared 
to take up his acquittance, which will be given under the 
hand and seal of the commander in chief of the army; if 
he answers in the negative^ the commanding ofllcer is not 
thereupon either to plunder the place, or to take the sum 
required, but must discover himself, and his par^, set ftre 
to some detached house, and afterwards march away again, 
threatening at the same time to return and hum the whole 
village. 

"All these parties are to be assembled at some rendesvous, 
before they are dismissed, where a strict enquiry must be 
made into their conduct, and those who are found guilty 
of the least rapme, be hanged without mer^; if any ofB- 
eers likewise are convicted of having taken or received 
money from the villages they must be punished with death, 
or cashiered at least But if, on the other hand, it appears 
that they have properly executed their orders, th^ must 
be rewarded accordingly; this method of rainng contrflra- 
tioDs win thus be reodrnd familiar to the troops and all 
the i^aces that have been summoned within a hundred 
leagues in circumference, will not fail to bring their stip- 
ulated quantities of provisions and money; for the calam- 
ities they have beoi threatened with, in case of their dday, 
win augment thdr fears to such a degrei that they will 
be very glad to purchase their security, by discharging the 
demand made upon them, notwithstanding any prohibitions 
which may have been issued by the enemy to the contrary. 

'^Twenty parties detached monthly w31 be sufficient to 
accomplish the whde aftab, neither wiU it be possible for 
iht enemy to discover them, notwithstanding his most dili- 
gent endeavors for that purpose, provided th^ make use 
of the proper precautions on their march, and adhere to 
their instructions. 

''Large bodies of troops detached <m these duties encom- 
pass in the execution only a smaU tract of country, and 
spread distress in every place where they appear; the In- 
habitants conceal their cattle and effects frim them, and 
can hardly be eompdled to surrender up anything. 



ooxniBonoKt. 4S 

tluj are vety tenaible^ tliat their etay can be but ahMt; 
and tliat. aa th^ take eare to aend the earlieit intelligeiiee 
of their ntoation to the enemyy he will aoon relieve them; 
a eirenmataaee bj which each large partiea have frequently 
been obliged to retreat with all the expedition they coold, 
after having totally miacarried in their undertaking, and 
left^everal of their men behind them; but even when they 
meet with no interruption from the enemyy the command* 
ing ofBcen, either influenced by fear, neeeaaity or aelf* 
intereat, generally enter into aome compoaition with the 
inhabitanta, and return with only a amall part of what waa 
demanded, and with the troopa much haraaaed and out of 



"Thia ia the uaual conaequenee attending thia method of 
raiaing eontributiona, while, on the other hand, that which 
I have been propoaing, cannot fail of aucoeaa. 

''In order, moreover, to render the payment aa ea^y aa 
poaaible to tiie inhabitanta, they muat oi^ be required to 
make it monthly, in auch aharea and proportiona aa the 
commander in chief ahall appoint; in conaequenee of which 
indulgence, added to their apprehenaiona of having thehr 
habitationa burnt, unleaa th^ comply therewith, they win 
aaaiat one another and be able to advance tiie whole with 
much leaa inconvenience and diatreaa; thoae who are at 
the greateat diatanee diqweing of their propertiea in order 
to bring their reepeetive contributiona in money, and thoae 
which lie contiguoua, fumiahing theira in proviaiona. 

''Theae partiea muat either be very unfortunate indeed, 
or dae very imprudently conducted, if th^ fall into the 
handa of the enemy; becauae with twenty-flve or thirty 
men on foot, one may traverae a whole khigdom with ao- 
eurity; when they find themadvea diaoovered th^ muat 
immediately march off the ground; for the enemy will be 
deterred from pumiing them far, piarticulaily in the night- 
time, 1^ the apprehenaion of fklling into an ambuacade; 
a cireumatance which might very well come to paaa, ea- 
pedally when aeveral of the partiea have agreed together 
upon certain plaeea of appointment to aaaemble at, in caae 
of auch aeddenta. 

"Nothing can be more entertaining than theae inemv 
aiona, and thewddiera themadvea will certainly take pleaa 
ure In '" 



»llmlua Sun, Menoin upon tlie Art of War, p. U-4fl. 



/ 



4f WAMOF 

BeqnUtioiit cUbr Hum Wuhlngtoiit— It has 
been daimed that Washington was the first to make nse^ 
of requisitions. The above ]>assage and other passages from 
the Memoirs of Marshal Saxe show that this eonld not have 
been so^ bnt that contribntions indnded eontribntioiis in 
kind as well as nume/. 

IMdiks for irrogidar troops.— The didike for irregnlar 
troops, whieh has been shown in all ages by military eom> 
manders, was especially manifested during this period. In 
a eartd for the exchange of priso ners e ntered into between 
the Emperor Leopold and Lonis XIV on Msy 2, 1692, it 
was agreed that bodies of less than fifteen horse or nine- 
teen foot should not be allowed to go against the enem> 
withoot ofllcers on pain of being treated as robbers;* and 
snch an agreement was not uncommon. As to the use of 
militia, Moser says, however, that sovereigns did not hesi- 
tate to condemn and punish in others what they made no 
scruple of doing themsdves.'^ 

Dying out of ransonk— The practice of ransom died out 
y in the eighteenth century. Bfall cites the eartd of 1780 
between France and En^and as the last instance of an 
agreement fixing the rates of ransom for military ofllcers 
and men, and states that ^'since that time no prisoners have 
probably been ransmned except sailors captured in mer- 
chant vessds which have subsequflntly been rdeased under 
a ranom MIL"" 

Increased ears fo r the sidg and woundad^-^cginning with 
/ the wars of Louis XIV, cartels often provided for the ro> 
lesse of the medical and derical staff and often of other 
branches of the noncombatant service without ransom, 
long before the practice of ransoming had been absn> 
doned.** Provision was also made that money eiqpended 
for the care of the nek and wounded should be repaid.** 
A notable arrangement was that entered into in 1759 be- 
tween Maria Theresa and Frederick the Oreat, in which 
they agreed that the health resorts Landeck and Warm- 
bnmn, in SQesia, and Teplits and Carlsbad, in Bohemia, 



ite^ vn, Pkit n, p. sia 

tillbMr, Venoflh, DC, p. ISI. 

•tHAU, later. Lew, p. «8L 

nHsD, Inter. Law, p. 4SS} and Me OviH» 

MQarH, IM^ p. 17, «t M|. 



47 

should be safeguarded.** Conventiona proTidfaig for ape- 
eial proteetioa to the aiek and wounded were not nneom- 



Oiowtti of aa effeetlfe pnhUe opfadon.— While inataneea ^ 
€i emeltar were not lacking» the following quotation fron 
Vattel in reference to the derastation of the Palatinate in 
1074- and 1689 shows that an effeetiTe pnblie opinion had 
been developed. He aays: ''All Bnrope reaonnded with 
inveetiTes and reproaehM on this manner of making war. 
The eoort vainly eorered it with the design of seeoring Hs 
frontiers. This waa an end whieh eoold be little answered 
by laying waste the Palatinate. It waa well known to be 
the revenge and eruel^ of a haughty and implacable nun- 
iater."*' 

▼afttsl and Bousbsmi on the waiCue of their tfme^— Such 
inddenta seem to have been ezceptionaL Vattd, writing 
in 17589 oulogisea the conduct of warfare in his time in 
words which contrast vividly with those used 1^ Orotius 
a century and a quarter before. In one passage, remark- 
aUe for ita likeness to the fiunous passage of Bousseau 
written four years later, Vattel aays: "It ia against one 
sovereign that another makes war and not agmnst the 
quiet sub jecta. The conqueror laya his hands on the poa- 1 
sessions of the state, on what bdongi to the public, while| ^ 
private persons are permitted to retain theirs. Th^ su^v 
fer but indirectly by the war; and to them the result is 
that th^ only change masters."** The words of Boussesm 
are: ''War, then, ia njyt a relation of man to man, but a I 
relation of state to state, in which individuals are enendes i y 
only accidentally, not aa men, nor even aa dtiaena, but aa | 
soldiers; not aa members of the country, but aa ita defend- 
ers. Ilnally, each state can have for its enendes only other 
states and not men, seeing that between tUngi of a divefse 
nature no true relation can be fixedJ*"** 

The st a t emen t s of both were rough gmeraliiatlona of the 
praetioe of their tlme^— Vattel waa without question merely 
generaliiing the practice of his time. He was not lining 

niMl^p. ll9»«tMf. 

MIMA,p.iei,etMf. 

•f Valid, mc m. Chap. DC. | IST. 

ti Valid, Bk. m. Chap. Zm, I SSO. 

» J. J. BoBMaa. Da CMnt Soefai; U I, Okqp^ IT. 



48 WAM OF nnr OBb 

doim a philow^hieal prlndple which thoold terre as a 
bask for a law of war; nor did Boosseau oonsider Umsslf 
to be laying down a principle which mi|^t in the fatore 
become a Ihring principle of that law; for, after the pea- 
sage that has jnst been quoted, he goes on to ssj that this 
principle is eonf onnable to the practice of all civilised nik 
tions. He was mcrclj drawing an argument against slavery 
from the praeUoe of his times, and was evidently not eon- 
scions of what bearing it would have if applied in detsil 
to the varied incidents of war, 

▼atteL— Of Yattel a few words most be said; and th^ 
csnnot be better said than in the language of Frof. West- 
lake. ''Yattd," says WesUake, ''was a native of the prin- 
cipality of NeueUtd, then belonging to the king of Prus- 
sia, but served the elector-king, elector of Suony and 
king of Poland, successively, as eonseSlar iPo s itegMdt, min- 
ister in Switserland, and coiMtZIar privt du eaNmH. His 
famous work was published in 1758, under the title of: 
L$ DraU d€$ €hH$, <m principe§ d$ la kfi nahtrette appK^uh 
A la condimi0 §i aiux affmrei diu naium$ §i ies soaeemMt. Its 
lAiloeophical principles are those of WoU^ of whom Yattel 
was a great thoui^ not a servile admirer, but ita chief 
merit is on the practical side. It presents the law of nik 
tions as it then stood with a fulness of which there had 
been no previous example, including the topics which had 
grown up since the time of Orotius or on which Grotius 
had not dwelt, and on which Wolff had had little or noth- 
ing to ssy; und it does so frmn the point of view of a 
man versed in affairs, familiar with the customs which had 
been taking shape since the Peace of Westphalia, and duly 
appreciating their value. Ita reputation was therefore aa 
wdl deserved aa it was immediate, and it must remain of 
lasting importance in the study of international law, as the 
focus in which the schools of reason and custom were first 
broui^t together, and from which the succeeding diverg- 
ences may be traieed.''* 

^ynkendioek^In striking contrast to the ftarinatiwg 
Yattel was the mercilessly legal Qynkershoek, who pre- 
ceded him by only a few years. Qyi^ershoek was a Dutch 
lawyer and jurist, and was president of the Sgh Council 
of Holland. His most important work on pubUe law, of 

M Wcrtlftte, Prto d plM, p. TC 



wldeh hk Law of War was a part, was puUiahed m 17S7. 
He was one of the dearest tliinken who have erer writ- 
ten on the laws of war, and his opinions <m maritbne war- 
fare have had great inflaenee on the British Ad m irslty 
Coorts; but his emel logie shows the great danger to whieh 
men remored from the aetoalities of war are liable. FtoL 
Nys dedarei that none even of the preeorsora of .Grotina 
was as pitfless as Bynkershoeh.'^ 



r 



50 TOM UnrOLUTlOVABT AKD NAPOLBOJIIO HTHUOGUB. 



y 



/ 



CHAFTEBY. 

THB SBVOLUnOlTABT AXD JIAPOLBOJIIO 

Hit chaiif» from vmn of-priaiMi to wan of pMple&i— 
The wan of which Vattd and RaiuHieaw wrote were wan 
of princes. Ezeept at sea, th^ were almost all that those 
who make the words of Bonsseau their ereed eonld de- 
sire. Frobablj at no other time had guerilla fighting been 
so seareey or had priyate penons softeed less from the 
burdens of war. But. in making the statements above 
quoted, Yattel and Bonsseau were historians nther than 
prophets. The next war of impottahce to follow the pub-, 
lication of Bonsseau's work was that for American Lide*' 
pendenoe; and there have been few wan since but have 
been stroni^ tinged by popular sentiment With strong 
popular sentiment irregular fighting has beenlrequent and 
with the great national armies^ the burdens of private in- 
dividuals have been increased maxgr fold. 

Boles said to have been laid down hf Oreat Brttaia in 
the war for American Xndependenoe^— In the War for 
American Independence, O. F. de Martens sa^ that Great 
Britain promulgated the following rules as recognised laws 
of war: "First, an army which occupies the eountiy of 
an enemy may demand provisions there and levy eontribii- 
tions and to force the inhabitants to satisi^ these demands, 
may resort to military execution, that is, ravage and de- 
struction; second, when the enemy, being in his own coun- 
try, finds it to his advantage to prdong the war and evade 
coming to action, it is permissible to ravage the country 
y in his presence, to make him expose himself in attempting 
to protect the country; third, when, in war, one is not able 
to destroy the adverse par^ or to lead him to reason with- 
out redudnji his country to dist r e s s , it is permitted to cany 
di str es s into his country; fourth, when the inhabitants are 
themselves the principal parties to the war, which happens 
in the case of a revolt or of a rebellion, they are them- 
selves the principal objects of liostflxtie% which one is 



HAKOixo OP Asma. 51 

under tke neeeasity of direetiiig against them to attain 
the end of the war.^ 

PtobaUj no pnhllo declaration of theee ndei^-^nst in 
what waj theee prindplee were announced by the Britiih 
OoTemment is not stated. There was probably no paUle 
announcement^ or it would have been noticed in the debates 
in Ftoliament where the whole conduct of the war was so 
vigilantly scrutinised. Possibly they were generalisations 
jdrawn from the apparent mode of its conduct 

The tfnployment of Indian allies and the oonllnement of 
prisoners of war in prison ships^— The excesses of the In- 
dian allies of Oreat Britain during the war caused the 
famous protest of Lord Chatham against th«r use;* and 
this example has ever since led publicists and statesmen 
to denounce the employment in war of peoples of a lower 
civilization whose manner of life makes it improbable that 
they win follow the rules of civilised warfare. The confine* 
ment of prisoners of war in prison ships, in this and the 
Napdeonie wan, also led to grave abuses against which 
The Hague Regulations provide. 

The hanging of Major Andii^— The hanging of ICajcr 
Andri as a spy has been characterized by Sir Bobert PhUp 
limore as a blot on the escutcheon of Washington,* but the 
characterization is not justified. Major Andr^^ excuse for 
himself was that he was '^efniymf^ (being adjutant general 
of the British army) '^into the vile condition of an enemy 
in disguise within your posts.'* When captured he had 
not regained his own lines and had on his person intdli- 
gence as to the forces; ordnance and works at West Point 
There seemed to be in his own mind no question that he 
was technically in the position of a spy. The only plea 
that his friends made for him was that he hadf lanided 
under a flag of truce. If this had been true^ as it seems 
not to have been, his assumption of n disguise within the 
lines would have placed him in the same position as if he 
had been disguised from the first However much com* 
passion we msy fed for him, the fact of his having been 

illutan, Pndt da Dvoii dm fOM, Bk. YIII, Chap. IV, | SSS. 
tHuMud«ii Pari. DriMtM, VoL XOC, 487-4Sa. 

• PhflUinoi^ iBt Law, VoL m, p. ITS. 
«Tlit ttaUfli en tte aulhoflV 

• IfiBvtci flf a Gout flf bi^Biiy apoa4ha OMt flf M^or AaM^ ^ 11. 



n 



THE RIVOLUnOXAIT AJTD XAFOLIOinO 



/ 



betrtjed into the position of a spy does not make hk lianf* 
ing nnjnstifiaUe. He. ww engaged in eompleting amnge- 
ments for the enbomation of a prominent Ameriean oiBeer 
and the betrayal of an inqwrtant American poet The 
eireomstaneee as a wholes instead of mitigating the ritna- 
tion in which he was found, distinctly pointed to the neces- 
sity of making his fsto an example to those who shoidd i 
to engage in similar enterprises in the fatore. 

Mn^pal effeet of the Bevoliittonaiy and 
Wars on the Law of War was in oonneefcloB with the Law 
of Oonqoest— Taming again to the shores of Enrope, we 
come on another Berolntioiiary War, that of the French. 
Its principal effect on the law of war between bcUigerents 
wss in connection with the Law of Conqacst» which oc- 
cupied an important place in the treatises on the Law of 
Nations previoos to tte IVench Bevolntion, a place which 
it occupies no more. The questions diseossed are aa im- 
portant now aa they were before, but th^ are now treated ' 
under the head of Militaiy Occupation, while Con(iuest 
is usually confined to the case of ware ending without 
treaties of peaoe^ either through the subjugation of one 
of the belligerents or the mere conation of hostilities. 

The old doetrlnes of Oonquest and PosOiminiunu— The 
old doctrine of Conquest was that territcny and lands, like 
other forms of proper^, passed to the belligerent who had 
taken them securely into his possession. To constitute se- 
cure possession, the end of the war was not essential, the 
most common test of firm possession being that the terri- 
tcny possessed should be so guarded by permanent f6rti- 
fications aa to necessitate tiding them to repossess the 
land.* Thus fiur the rules aa to the taking of all kinds of 
proper^ were alike. With regard to territory and land, 
however, the theory of conquest was profoundly modified 
by the doctrine of Postliminium, which wss based on the 
old Boman doctrine from which it derived its name. Ao- 
cording to the doctrine of Postliminium, the reeovety of 
territory before the conclusion' of peace, or its reconv^- 
anee under the treaty of peace, reestablished as fiur as pos- 
sible the legal and political idations existing before the 
eonqnest Gnnts of land made in the meantime were ren- 
dered null; debts discharged by the conqueror were re- 



OOXqUBST AKD FOSTLUCmUSf. SI . 

▼ired, except iuofar as there had been aetnal eompabQiy 
payment; and in general the condition of thin^i preeedUns 
the eonqnest waa restored. Forlhermore^ it was immaterial 
whether it was the subject of an enemy who had benefited 
in the meantime^ or the subject of a neutral power, or ctcb 
a neutral power itaeU An enemy or the subject of aa 
enemy could give no better right than he himaelf had, and 
the right he had in the proper^ taken was subject to the 
right of the enemy to retake it at any time before the con- 
clusion of hostilities. This ri|^t to retake territory and 
lands waa a different right fran that to retake movableB. 
They in general became the abaolute property of the captor 
and could be disposed of in the same way aa property erif- 
inaUy hia. A third party got good title to them, even aa 
against the original owner, and hia acceptance of thena 
involTcd no breach of hia neutrality. But the aeoeptanee 
of conquered territory during war was a different matter. 
It iuTolved cooperation with the conqueror, in deprivins 
the original holder of his property and so was a dia> 
tinctly hoatile act In the few cases where conquersd tc^ 
ritoiy was transferred btf ore the conquest had been coin 
firmed by a treaty of peace, war actually foOowed, or it- 
was expected at the time of the transfer that it woidd. 

The doctrine of FosUindninm prevented the conqusrer * 
becoming the definitive owner of territosy ssiasd by Um 
tin the eonelusion of hostilities. So fto ss the alienation 
of conquered territory went, then the conqueror was not 
ita definitive owner, till the conclusion of hostilities. Hie 
had merdy a possessory right, good as against third po^ ^ 
ties. This was early recogniied 1^ the jurists Pnfendovf 
said: ''It is to be observed that the Right to Aequiritioim 
of War ia of Force only against any third d i s inte res t ed 
Party. But to give the Conqueror a Bight of I ^oprie ly 
that will hold good against the Conquered there must of 
Necessity be a Padfieation and Agreement be tw een both 
the parties, otherwise the Bight is supposed to 
still in the old Proprietor, and whenever he is 
enoui^ he may justly struggle to recover tt.'" 

So Vattel: ''Immovables, lands, towna, provineea, ele^ 
pass under the power of the enemy who makes himself 
master of them; but it is only by the treaty of peace or 

vPotadoi^ ]>■ Jaie NetttM at GotinBt Vm, e^ aa. 



M THX BBTOUmOITABT Alf0 XAVOUOiriO I 

tlie entire fubrnkrioii and eztinetioii of tke lUte^ to wkleh 
tbeee towm and provineee belonged, that the aaqpurition 
m eompleted, and the pcopertj beeomea ataUe and peff eet 

**Thna a third party eannot aatdj inorehaae a eonqnered 
plaee or province till the aovereign frmn whom it waa taken 
haa hj a treaty of peaoa reoooneed H, or being ixreeovei^ 
aUy redneed, haa forfeited Ha aovereignty; lor while tiie 
war eontinofla^ while the aorereign haa atfll hopea cl re- 
eorering hia peaacflriona by arma» k a neutral prince to 
eome and depriro him of aneh libertgr hj pnrehaaing of 
the eonqaeror thia plaee or provineet The frat proprietor 
eannot forfeit hia righta hy the action of a third peraon, 
and if the porehaaer ia f6r maintaining hia pnrehaae^ he 
will find himaelf engaged in a war, Thna the king of ftaa- 
ma pot himaelf among the enemiea of Sweden, by reeeiTing 
Stettin frmn the handa of the king of Poland and the Caar, 
nnder the title of aeqneatration.*** 

The eaae of the tranaf er of tenttocy aeiaed in war to a 
tUrd party before the oonohiaion of hoatllttlaa aeema not 
to hafe oocmi e d to QroCfamr— Thia aolvtioii of the qneation 
aa to territcny tranaf erred to a third party dnring war doea 
not appear to have oec or red to Grotfni^ althoni^ aa az^ 
rived at by hia aneeeaaorB, it woidd aeem loi^«ally to f ol^ 
low frmn what he laid down on the anbjeet of Poaflimin- 
iom.* Perhapa it waa anggeated t o Pn f endorf by the aale 
of Donkirk l^ Charlea n to Lonia XDT in 16e2.>* Dunkirk 
had been taken 1^ England frmn Spain a few yeara be> 
fore, bot the death of Cromwell had prevented tiie eoii> 
dnaion of a treaty of peace confirming the En^iah poa- 
aeaaion; and on the Beatoration, Spain had reaomed peaeefol 
relationa with England with only a formal proteat againat 
Donkirkla retentioii.^ In the treaty of aale^ however, elab- 
orate pnnriaion waa made againat the poadble attempt of 
Spain to retake the place;" and one of the main reaaona 
given for Looia* imnatence that no higher price ahonld be 
paid waa the imperfect title of the Engliah, rerting aa it 
did on the Bighta of Arma alone^ nnfortifled by Treaty.'* 

•▼•114; Bk. m, om^ xm, h m, lan 

i»OoBte e ErtradMb Lrttit*, MaMiiw at KcgodfttlaH. I, 94tk 
11 Tbt Life of Kdwiod, Xftil el OMBdoa, I, ^ aoa, «t MfL 
i«DaaMift» Totm VI. Plut II, p. Oa. • 
iaOoBteaiMndct,LittimpOla,l,aiC . 



OOXqUlBT AMD rosTLUiijaux. ft5 

The ulo attraeted a groat deal of attention, and eoold 
hardly have failed to reeeive the careful eondderation of 
Pnf endorf. Poesibljy if a similar eireumstanee had oeeorred 
earlier, it woold have ealled Orotine* attention to the poe- 
Mttoiy natore of the right of the eonqneror and caueed 
him to i^TO the great weight of his authority to some 
doetrine more nearly resembling the modem doctrine of 
Military Oeenpation than did the doetrine of defeasible 
title, whieh he Unght 

As a prlneiple of p r operly law the doetrine of Oonfoesl 
ud PestHmfalnm was ezoeedingly eambersome.— In the 
li^t of what Pnfendorf and Vattel said, it would seem 
strange that the old doetrine of defeasible title continued 
to sarvive but for the fact that the relation of the oon- 
queror to the inhabitants was inyolTed in it, as well as 
the relation of the conqueror to the territcny. As a prin- 
ciple of property law, it was bad; but, as a principle re> 
quiring the general recognition ol the authority of the 
eonqneror, it had many advantages. 

But on the other hand it snppUed the need for some rec- 
ognised antliority in oocnpisd terrltoiy*— The need of some 
recognized authority in a country occupied by an enemy 
IS apparent Witlmit authority there can be little law, 
and without law the life of a highly developed community 
must be paralysed. But, the recognition of authority im- 
plies the duty of obedience, and what duty of obedience is 
there towards an enemy t The answer is by no means ea^y. 
It was aroided.by the doctrine of defeasible title^ f6r with 
title went sovereignty, and with sovereignty protection) 
and, in return for protection, the inhabitants owed allegi- 
ance. The whole theory was simple and dear, and, as it 
was of daily use in making plain to the inhabitants of 
conquered territcny their duty to the conqueror, while on 
the other hand the alienation of conquered territcny was 
exceedingly rare, it is not surprising that the doctrine of 
defeasible title continued to be maintained: 

The change of allftglancwi of the inhabitants of llmdy o^ 
eupled terrttoiy dur^ war was wdl setHed^^The doctrine 
that allegiance changed on conquest and that conquest 
could take place before the cessation of hostilities was wdl 
settled. Thus, Pothier, writing shortly before the nrfmeh 
Revolution, alBntted that the inhabitants of conquered ter> 



i\ 



H 



M THB UnrOUjnOVAET AXD XAK»LI0]I10 

ritorjr became French citisens from the moment of 
qnesty bnt that they were restored to the condition of aliena 
by the handing back of the terr ito ry by the treaty of 
peace.*^ This doctrine of change of dlegianee had, how- 
ever, certain nnfortonate results. It sanctioned both the 
exaction of an oath of allegianee to the conqneror and 
oompnlsory seryioe in his army; and we accordingly And 
that oaths of allegiance and militaiy service both were 
reqnired of the inhabitants of oceapied territcny during 
ij the period of fVederick the Oreat These things seemed 

I; so natural to O. F. de Martens, the first edition of whose 

1 work appeared in 1788, that he referred to them as in- 

stances of the moderation of conquerors rather than of 
I their seventy.>* 

Work of ProL Lamelre.— Within the last few years we 
have had the privilege of observing the workings of the 
j. idd law of Ccmquest in great detail in the interesting studies^ 

i> of Ir6n<e Lameire, .Professor of the History of Public Law' 

in the University of Lyons. He depreciates the practical 
I importance of the Law of Postliminium, and well he may 

in the fields on which he has shed so much light As 
|| between the conqueror and the inhabitants it had very 

u little application. The effects of conquest, even perfected 

I by treaty, except in making the inhabitants the subjects 

of the conqueror and as such liable to the obligations of. 
j^. subjects, were so slight in the eighteenth century that Pro- 

fessor Lameire is continually tempted to compare them 
jj with the effects of military occupation in the nineteenth 

,« century, much to the advantage of the former. What he 

fails to notice is that the doctrine of Postliminium was 
i I essentially a doctrine of the law of property and marked 

•;^ a profound difference between movables and immovables. 

•1; Third parties could get good title to the former during war. 

i{j Th^ could not to the latter. 

I'l Oaases that led to the modem doctrine of ooei^atkm*^ 

Such was the state of the law at the outbreak of the 
French Revolution. The chief causes that led to the change 
in the law were the doing away with the presumption that 
a belligerent always had the intention to appropriate all 



MPMhler. TimlU d« FtotoBsti, Title II, Bee. 1. 

iBUuim^ BuuBsiy of the Law of Nation^ Bk. Vm, Gha^ ID, 



ooxqunr ahd Hmumiiim. §7 

tke territory he could laj hk bands on, and the dearer 
application of the principle of the ds facto nature of the 
right of a belligerent to seise the debts of the subjects of 
his enemy in the enemy's country, to the general relations 
between the belligerents and the occupied country. The 
former was due to the disapproval of conquest hy Bousseaa 
and others; the latter, to the decision reached as to the 
confiscation of the debts of the Elector of Hcsse-OMscl by 
Napoleon. 

Under the old doetrine the intentim to a p prop rla le tcr* 
ritofy without Umli had been psesumedw— Under the doe> 
trine of the defeasible title^ the intention to appropriate 
territory seised wss always presumed. Bynkershoek went 
so fiv as to ssy: '^The intention of the conqueror is not 
merdy to invade one district, but the whole of the hostile 
empire, and to'make his own all the countries bdonging 
to it.">« Plractice was in accord with this view. Princes 
desired land, as th^ did other proper^, in order to en- 
large their estates; and it mattered little whether the terw 
ritory was fitted to form part of the national domain or 
whether the inhabitants were fitted to become members of 
the conquering state. 

This presumptloB was diattered by the ftendi Bevehk 
tion^-niis presumption the SVench Bevolntion dmttered. 
t*ufendorf and Locke had already preached the doctrine 
that might could not make right. Boussean followed 
them and burned into the consdousness of the French na* 
tion the fact that the so-called right of conquest was only " 
the law of the strongest. The revolutionaiy leaders pro- • 
daimed this view with eharacteristic fervor and embodied 
a renunciation of wars of conquest in the Constitution of 
179L^' As a result of this renunciation, territory whidA 
would formerly have become a part of France hy the fsetL 
of sdsure did not become so untfl definitdy incorporatedj 

Thlg change in the law refleeted in n decision of the Ooorl 
of Osssatlon in U18^— This change in the law is reflected 
in a dednon of the French Court of Cassation in 1818. 
A person wss hdd for trial before one of the F^wnch 
courts of assise for the assassination of a Catalan, in Cata- 
lonia, Spain, in 1811, on the ground that as Cstalonia was 

!• Blinikcnlwdc, Iaw of War, p. eS. 



y 



M THI IBVOLOnOHABT AXD KArOUHWlO 

then oeenpied bj the French foreee and adminktered \ff 
FVeneh authoritiee it waa to be eoneidered a Freneh tcv- 
ritoiy. The Conrt of Cassation, on appeal, njeeted this 
▼ieWy holding that ''this oeenpation and this administra- 
tion by the FVeneh troops and authoritieB had not eom- 
mnnieated to the inhabitants of Catslonia the title of 
FVeneh^ nor to thdr territory the qnality of FWneh terri- 
tory; that sneh eommunieation eoold oidy ha^e resolted 
from an act of union emanating thm the pnbiie authority, 
which act had neyer existed."^ In other words, the law 
aa stated \fy Pothier, had been re v e rsed. 

The conflseation of the debts and doBBains of Ike Kleelor 
of Hesie Oasiel by Hapoleoa gave rise to a dsoislon of siB». 
liar tenor by one of the Oermaa Uatfonrities Another 
inflnential decision of the same tenor was rendered by 
one of the German UniTersitieSy on the qoestion of the 
lawfulness of the eonilseation of certain domains and debts 
of the Elector of Hesse-Csssd by Napoleon. It broug^ 
oat, more dearly than had hitherto been done^ the pro- 
found modification of the doctrine of Conqaest by that of 
Postlimininm; distinguished between the- permanent eon- 
qneror and ''the mere transient eonqneror;" and ascribed 
to the acts of the latter the mere de /ode effect which had 
always been exemplified in the confiscation of debts in tcv- 
ritory the title to which had not been perfected by the 
cessation of hostilitiea. Confiscation of debta by ''a trail- 
ment conqueror" had always been considered valid, but 
only to the extent of actual payment made under compnl- 
non. A mere release of the debt, which would have been 
suflicient if the conqueror had been eonadered the legs! 
successor of the power he had dispossessed, was always 
considered a 'nullity. Bynkershoek, the great expositor of 
the doctrine of defeasible tide, wss led by this considera- 
tion to say that the ''occiqiation which is had In war eon- . 
Bsts more in fact than In law.""* 

In accordance with thia principle, the German Thuversity, 
which delivered the final judgment. '«ri^4y said that the 
real quotion wss» whether Napdeon had, or had not, bo- 
come the true creditor of the HesseXSassd funds. Thqr 
drew a broad distinction between the validitj of aeta < 

MOitdsa, DiploBstIt dt k Ms, I, 
fBjydMiibwi, Law eC Wai; p. sa. 



OOKQCEBT AND rOCTUHIllICJI. 09 

by a mere tramieiit eonqaeror and acta done by bim after 
•tbe kingdom bad been wbolly mibdued, and the snbjeeta 
had either exprenly or by implieation, accepted bim aa 
thdr mler. 

''In the former case the Conqneror'a right waa confined 
to the effect of hia private acts^ to the occupaiio UUka, and 
required actual seiaare and poseeBsion for ita yalid exerdee. 

''In the latter case the ri^te and title of the Conqaeror i 
bad been ratified by the Public Act of the SUte." Napo- r 
leon^i case,** th^ decided, waa one of the latter kind. 

Obanges whicb made tbe old doctrine of defeaiMe tUe 
unnatnral even to the lay mtaid^— These two dednona 
brought with great deamesa to the juristic mind the ea- 1 
aentially temporary and provisional diaracter of the rii^ ] ^ 
of a belligerent during hostilities over occupied teiritory. / 
But there were yet other forces at work that made the psa- 
sage of title during war seem unnatural and odioua even 
to the lay mind, and these were (1) the change in the eoB> ^ 
ditiona of warfare and (2) the growth of national sentiment ^ 

The diaage in milituy adenoe.— Warfare itsdf had 
changed. The immenae armies of the Bevdution rendered 
it possible to strike blows directly at the source of the 
enemy's power and to dictate terma of peace at his capitaL 
This made the terms of peace all-important and the mili- 
tary events important only aa leading up to them» wheresa 
formerly the treaty of peace had been important mainly 
aa confirming the changes brought about by the war itsdl 
The object of campaigns had been the seiaure of small . 
coveted provinces,*^ and once taken th^ were not liable to 
be retaken or restored. But, henceforth, what waa takenl^ 
waa not so important aa what waa retained. Whole eoun- ' 
tries passed under the contrd of the Frmth armies, to be 
handed back by the treaty of peace, so that it became more 
natural to treat military occupation aa effecting a temporaiy 
change which might become permanent than aa effecting 
a permanent change which eventa might prove to be only 
temporary. 

The growth of national senttmenL— The growth of na* '^ 
tional aentiment had a similsr effect No matter how sat- 
isfaetoiy in theory may have been the old doctrine that 

Mpunimoi^ biMr. Law, m, aia. 

n JobU, Art d Wsr, p^ ISa 



n THS IBVOLOnOHAKT AHD KAVOUOmO BXWOOOUM, 

the conqueror had the right to require an oath of allegi- 
anee and military serviee from the eonqaered, it mnst al- 
wajs have been galling to the loyal mibjeet of a worthy 
80Terelgn» and it beeame absolntely intolerable when eon- 
eeptiona of volnntary allegianee and national patriotiam, 

{took the plaee of the old f endal ideaa of reeiprocal pro- 
tection and obedience. The indlTidnal waa no longer the 
inTolnntary anbject of the lord of the aoiL Hie loyalty 
waa baaed on an intelligent and Tolnntaiy adherence io a 
ftithcriandy of which he waa a member, and to which he 
waa attached by all the ties of kmahip, language and ai^ 
aoeiation. Thia new patriotiam waa perhapa ncTcr hi^er 
than at the dooe of the Napoleonic wan. It made the con- 
tmuanee of the old doctrine aa to the ri^ta of the eon- 
qoeror impoHible» and rendered inefitaUe the role which 
haa aince been accepted without question, that aa long aa 
hoetilitice last it is illegal to demuid from the inhabitants 
of occupied territoiy either oatha of allegiance or militaJry 



Iha chaagea And wdenlille eipreiilon in the work e( 
HeflKflr«i— The changea in conditiona and in thoni^t thoa 
brought about found adentific ezprearion in 1844 in the 
work of the conatruetiTe Qerman jurist, Heffter, who dia- 
earded the old doctrine of ConqucBt, and demonstrated the 
proviaional nature of the ri^ta of a belligerent over occu- 
pied territory till the conclusion of hostilities.** Since then, 
such rights have been classifled and discussed under the 
technical head of Militaiy Oceiqiation, which haa come to 
be treated more and more in detail, while Conquest and 
Postliminium haTc sunk to a position of insigniflcanee. 
Conquests are atiU effected, but only where, because the 
enemy's power is annihilated, or for some other reaaon, 
hostilities end without a treaty of peace. 

Survival of the old doctrinea in dicta of the Siqprsmo 
Oonrt--Tracea of the old doctrine^ .however, aurvive in 
dtcto of the Supreme Court in the caaes of UnUed Biaim a. 
fite^ and FUmmg a. Page.*^ The actual decision in neither 
case can be shaken; but in the fwmer caac Mr. Juatice 
Story, in discussing the subject of Conqueat, made 



Le Droit latar. Pnblk^ Bbh^ Ua-iaH 
tta Whnto^, atfL 



OF AKT TIBASUUk 61 

sweeping itatemenU which left out of aecount the wmential 
limitationi imposed on eonqnest by the law of Postlimininaiy 
and these statements Chief Justice Tan^ repeated in FUtn- 
img V. Page* But, while Chief Justice Tan^ considered 
the title of the United SUtes to Tampico to be good, ac- 
cording to the law of nations, in consequence of the mere 
occupation of the place by the American forces, yet he 
rejected, on principles of constitutional law, the contention 
that it had become American territory. The modem doo- 
trine had been stated by Chief Justice Marshall, in IS 
in the case of the American Intwancs Companff «• CatUerJi 
in which he said: ''The usage of the world is, if a nation! 
be not entirely subdued, to conmder the holding of ood-I 
quered territory as a mere military occupation, un^jtaj 
Uto shall be determined at the treaty of peace. Flf it be 
ceded by the treaty, the acquisition is confirmed, and the 
ceded teriitoiy bec<Hnes a part of "the nation to which it 
is annexed."" 

Beisnre of art tressures— 17 Hapdeon^— The influence of 
France on the change from the doctrine of Conquest to that 
of Military Occupation was her most important contribution 
to the law of war between belligerents during the Rerofai- 
tionary and Napoleonic Wars. On the other hand, some 
of Napoleon's acts tended to create fixed international sentK 
ment by the disapprobation th^ proToked, as in the case 
of his seisore of art treasures of the different countries 
which he occupied. 

Prior to Hapdeon^— Prior to the Renaissance the seisnre 
of art tressurci by the rarioos Italian cities seems not to 
ha^e been uncommon, and while the Renaissance seems to 
have inaugurated a better era among the Italians them- 
selTCs,** iti effect was not so marked or at least was f dt 
later in the c onduct of the earlier French invaders of Itsly. 
Charies Ym and Louis XII both seised notable libraries, 
and eireuinstances slone prerented their taldng other tresa- 
ures aa welL'' Francis I, howerer, abstdned from sudi 
' action, much as he coTCted works of art,** and there were 

^UgTSaStt^ ABBedoM dm OoIIccUom d'Art oa d« 
tkeqiHS «i Jjtm Rdio daas 1« Writtliiiw iBtcnatkadH^ Vm 
eHkMn DiploaHili«M^*4Sr. 

OTlMdL,4SS. 

it|itf;4SS. 



tS TBI BBVOLOnOKABT AMD KAVOUOKIO flnOOQUi. 

few ralMeqiieiit ezmmplei of the seUure of ort treamree 
by the Freneh kingi.** A noUUe ease in tbe Thirty Tears' 
War waa the seisure of the library of the Eleetor Palatine, 
in 1G22; and the subsequent sending of the books to Bome,** 
but this aet aroused the indignation of Chistavus Adolphus, 
and waa made the subjeet of reprisals, in kind by him.*' 
During the eighteenth century the spoliation of art muse- 
ums and libraries had fallen into desuetude.** The pnUie 
arehives were not always safe, especially where % daimant 
to a disputed province wished to secure his position by deeds 
.of title. Professor Nys gives two instances of ttie sdsure 
'of title deeds and similar documents, one by Louis XIV, in 
1678, the other by his successor, in 1747,** but in each case 
the seisure waa contrary to express stipidations in capitul*- 
tiona and can hardly be given aa instances of idiat was 
then eonaidered correct practice. 

Heavy burden of Hapdeon's armies^— During the days of 
the French convention, the war threatened to take on the' 
bloody aspect of the Beign of Terror, but, says Hountague 
Bernard, ''the sanguinary decrees of the Convention, which 
directed that no quarter should be given to English or Han- 
overians and that neutral sailors found on board of British 
ships should be put to the sword, were execrated and dis- 
ob^fcd.'*** Perhaps the heaviest burden of the subsequent 
war waa due to the extended use of requisitions to support 
the immense forces which Napoleon kept under arms. 
Thqr were largely responsible for the uprisingi that caused 
UsdownfslL 

Bandog of the public buildings at Washington.^— In tins 
rdation, the incident of chief importance in the war of 
1812, between Great Britain and the United States, was the 
burning of the public buHdingi at Washington. Otherwise, 
especially in the respect shown for private properly, the 
ecniduct of the Britiah commanders was generally com* 
mendable, and it is hard to determine on just what prin- 
ciple th^ acted at Washington. Admiral Oockbum, in his 

nIML 

ttHuti^ n Gutinrai AM|*ai^ ea 

nifflirt^s IX B. H. D, sra 

nm M^ SIC 

MBMMod^ th» Qivwih €f Um ud ItegM ot War, p. lU ud p. 



BOBMXVO 09 VKB OARXOIb 6S 

reporty ezeuted tbe bnnimg of the Capitol as an aet of 
repriial for shots fired from it,** but General Boss made 
no such eiqtlanation,'* and for the burning of the poblie 
buildings other than the Capitol no ezeose at all was of« 
fared. Afterwards, when the burning of the bnfldingi had 
been the snbjeet of so much eensure, the attempt was made 
to justify it as an aet of retaliation for the alleged burning 
of the pnblie buildings at York (now Toronto) by the Amet- 
leans earlier in the war; but there was dearly no sueh 
idea in the mind of dther Admiral Cockbum or Ckneral 
Boss at the time. That old seore had been wiped out, and 
the reprisals whieh Admiral Codirane threatened to make 
soon afterwards were for an entirely different eanse.*' The 
orders that Admiral Coehrane issued were directed to the 
naval forces alone» and had nothing to do with the expedi- 
tion against Washington under General Boss.** The burn- 
ing of the buildings was almost unirersally eondemned, and 
there has since been no question that the rights of a bd- 
ligerent over the nonmilitary immovable property of his 
enemy do not extend to its destruction. In eonndering 
the burning of Washington, however, it is only fsir to 
mention the remark of an ^glish writer, that the public 
buildings at that time were comparatively insignificant, the 
Capitol being the only one of any eousidcrable arehiteetural 



M JuDM, mttoiy €f the Ww fai Amrtos, II, 4$L 

MAML,p.4ar. 

•f Hniy Adam, BUUuj of the Uaitcd StelM, O, ISSw 

nAML,p.lia. 

MGlds* CbmpelsBi «i WmiiUD^Um, p. ISa. 



i 

PiqUOD OV PS4CS AXD IMBCIiAB4nOJI OV PIUS. 



\ 



* CHAFTEBVL 

*THS PmOD OP PBACB AKD THB DBOLAXATION Ol^PllIB. 

CRiangw ynrom^t dnxinff the pmod of petee^^Tlie es> 

hansting wan of the Napoloonie period were soeceeded 1^ 

almost for^ yean of peace. The great inyentioiii wertf 

followed by an indnrtrial nTolntioii, and thie, with the 

• spread of the doetrmee of free trade and the brothernood 

I of maoy led to ideas of a world-eeonomy and world-peace 

y that found expression in the great International Bzpositioin 

|of 1851. The condition of society at ibit^tinie w|« well 

described by Honntagne Bernard, who, writing in 1856^ 

said: 

"Forty yean of peace, during which the inyentiTe and 
constmctiTe lenities haye been stimnlated to the utmost; 
haye altered the face of society, and the change has been 
such as to make the contrast sharper and the plunge more 
abrupt We lire in times not of excessiTe luxury, but of 
elaborate comfort and ease, of order in t&ingi great and 
small, of Tsst mechanical enterprises, diffused thou^ su- 
perficial knowledge, fiuent benerolence, and tolerably ao- 
tire charity. We have attained remarkable success in ayold* 
ing and putting out of sight all that would hurt the bodily 
senses or distress the mind. The current of thought among 
good men and their disciples and imitaton sets in the di- 
rection of social improTement. The prejudices and anti- 
pathies of race are smoothed down, the ties of country and 
of home weakened; and we haye accustomed oursdTCS to 
divide society into danes rather than into peoples, and to 
study the component stnta more than the suporfieial plan. 
. At the same time the extension of trade has Imit closer the 
mutual dependence of nations, so that the stoppage of a 
single aTcuue of mtercourse, the smallest rise in the price 
of any necessary artide, is felt with electric rapidity in 
places most remote from eadi other. As all^ these thingi 
seemed to.remoTe indefinitely the danger of war, so It was 
reasonable to expect that th^ would modi^T its eharaeter 
ft eamo.'** 

Thm Qfowth of Laws sad UtagM ef War, pw aH 



moLULkmm or Ti 

Hud ezpraHdon in tlis PtclTalion of Firi&r— And 
th^ did. The desire for improvement foond 
■ion in the four artidee of the Dedarmtion of Fuii 
of 1856, whieh embodied the prineiplee which the allied 
powers had f dlowed during the war with Sosna. Thqr 
mark the most important modification of the lawa of war 
that haa erer resulted from conyention. The four articieB 
are: 
L PrivaUermg is and rmmm oMiAsi. J 

8. Tk$ neuiml flag coven enemf^g goods, wiXk l&e oxeofUkm I 
of comMbamd of war. 

3. Nouiral goods, wiik ike exeefium of eoidtrahamd of war, 
are not Uable to oafktre under ike enemas fag. 

4. Blaehades in order to he hin^ng, musi he egeeUiee, ikal is 
1o sag, musi he nuuniained hg a force snfficieni reaUg to preoemi. 
access to ike coast of ike enemg. I 

The last three artides concern nentrala pnmaiilj; but 
the rdation of the second to the general abolition of the 
capture of private property at sea, aa wdl aa the insistenee 
of Oreat Britain that the first and 'aeeond artides should 
only be considered together, neeessitatea the eTamination 
of the Declaration aa a whole, and of the first two artides 
in particular, in some detaiL 

The Congress of Paris*— The Declaration waa the woik 
of the Congress of Piris, composed of representativea of 
Austria, France, Oreat Britain, Prussia, Russia, «^wiw>;>^ 
and Turk^, who had assembled to arrange tenna of peaae 
at the end of the Crimean War. Count Walewaki, the 
French representative, considered the time opportune for 
a dedaration of prindples of maritime warfsre, and on 
April 8, 1856, proposed the four artides above mentioned.* 
Lord Clarendon immediately announced the willingness of 
the British Ctovemment to accept them, on eondition that 
the first two artides should be inseparable^ and at the 
following meeting of the Congress the other repres e n tativea 
announced the adhesion of their governments.^ On April 
16, the representatives of all the seven powers signed the 
Dedaration, with the understanding that no signatoiy or 
adhering government should ever enter into an 

iBritia sad FottlsB State Pkipcn^ VcL ZLVl, p. 

s 



/^ 



/( 



M TEMiOO or PBACB AXD UOLUUITXON OV PIUB. 

iiiTolTiiif the rights of iwiitn]t» that did not rat on all 
the four piineiplM.* 

Iha ehaage in the attttuda of Qreal BrttataL— The Deela* 
ration marltod a revdutioii in the maritime pdi^ of Great 
Britain. Hitherto^ she had ineiBted on her right to eeiM 
enem/ property on the high seaa, whether found in neutral 
hottoma or not, and had eombated the doetrine of free ahipe*. 
free gooda, aa designed to eripple her power at sea hy al- 
lowing enemy eommeree to be carried on in neutral hot- 
toma without molestation. Therefore, in adopting the se^ 
ond artide, she aeeepted the very prindple which she had 
so long opposed. The resson for the change of pdi^ waa 
exphmoi in Parliament by Lord Clarendon, who, while 
holding the post of Secretary of State for Foreign Affsiza, 
had represented his goTemment at the Oongrass, ''It was 
eiridently impossible," declared hia Lordship^ ''that we 
should rerert to our former pdi^*-the great ehangea whidi 
had taken place in our commerdd pdi<7 forbade that We 
should ever haTO recourse to that pdi^ again. The (3ot« 
emment therefore thought that it would be wise and pditie 
and expedient that when we were under no compulsion and 
our motives could not be misunderstood, we should make 
the declaration we hare made, that we will not recede but 
will abide by idiat we haye done in the hope that we should 
thereby mitigate the evila of war and produce a friendly 
feeling among the nations of the earth.'** 

At another time he said: 

"It hsa been, and atiU ia, the great d>ject of modem 
eiiilisation to mitigate the nuseries of war, and to define 
and extend the rii^ta of nenti:pla. Thia haa been done with 
respect to war by land, but not with respect to war by 
aea. By land we should think it disgracefd to sdae the 
property of nentrd and peaceful persona eren subjeets of 
the enemy; but that ia not the case by lea; and we eren 
give licenses to buccaneers to seise the property of peaeefd 
merchants on the ocean. There is no asngnaUe resson 
for this differenee, except, perhaps, that the acts commit- 
ted by sea are less under observation than those eommitted 
on lud, and ihe force of opinion ia, consequently, less 

• AML,^1S7. 

•HmmiM rMtesMlsij IMMmw TUid 8vli^ YcL GXUI, eol- 



DEouuunov ov VAUi. mf 

brought to bear on the former. The present etate of tlie 
maritime war showB» indeed, bnt little improTement iipoii 
the euatoms of the most barbarona agea.'" 

Kngland waa acting on Ike prine^ thai the eaptiBO 
of pii?ate p t upe i V «t aea might well be done awaj wllk 
altogeUier^-ETidently the Britiah goTomment waa aeling 
on the belief that the eaptnre of private propertj at aea 
might wdl be done away with altogether; and Lord Pil> 
meraton, then Prime Minister, even eiqpreaaed himadf to 
that eifeet in hia Liyerpool Address of November 7, 1856L* 

The position of the United 8tate&r-The United Statea, 
with other nonaignatory goTemmenta, waa aaked to aeeede 
to the Declaration. Secretary Marey ezpreaaed the wSIing^ 
ness of the, United Statea to acUiere, but only on emditlon 
that the ftnit article be ao amended aa to exempt all private 
property at aea from capture, except in caae of eontraband 
or of blockade. He stated that the United Statea, with 
her small regular navy, would not fed able to agree to the 
abolition of privateering, unless the occasion for privateer* 
ing, the capture of private property at aea, were alao done 
away with.* The success of this proposal aeemed Wodj* 
Lord Palmerston and Lord Clarendon might be expected 
to &vor it; BuBsia even intimated a desire to take the in- 
itiative; and France, Piedmont and Holland also expressed 
their approval;^ but, befwe the prepoaed amendment waa 
acted on, a change of administration placed Mr. Buchanan 
in the Presidential chair, and the negotiationa were by 
him suspended, aa aome conjectured, in order to widen the 
amendment ao aa to include a prohibition of commercial 
blockadea. But the negotiationa were, in fact, dropped."^ 

There ia little likelihood thai oven the nonsignatoiy pofis- 
«ES win fail to respeet all the ndes laid down in the See* 
laratlon. — Spain and Mexico were the two principal pow> 
era, besides the United States, to withhold thev adherence 
to the Declaration, but at the Second Peaee Confercnee 
th^ also adhered. In the wars in which the United States 

tAML,4Sa. 

• Aigidi imd Klanhold-FMl Sddff nicr Feindci VUa^ p. Wk 

• Mr. Many to Omnt dm 8ftit%Ci, 8c^ Ex. Doe, 104, t4Xk 

UtBMlL 

MLavdij» hi tht Btnw dm Draft latMBstkiii] Til, pp. 
iiStaik, Tke AboUlka €f PHntt^pfiiv ud Tke Dwlmtke 
Pte^ p. IBL 



68 VEtaoB or rjCACs axd oecuuutiov ov pasia. 

is engaged the DecUrmtion is not binding, but, m to the 
■eeond, third and fourth articles, this fact is of no praetical 
importance, since they are all now recognised as principles 
of international law. The question of privateering is more 
doubtful, but it has not since assumed a serious praetical 
aspect. President Lincoln was authorised to commissioii 
privateers during the Civil War," but he forbore to do so; 
and although a few commissions were issued by the Con- 
federacy, the results were unimportant, the great damage 
done to Northern commerce being inflicted by the regu- 
larly commissi<med Confederate cruisers." On the out- 
break of the war with Spain, the United SUtes declared 
it to be her poliey not to rcMrt to privateering, and al- 
though Spain reserved the 'right to do so she did not afker- 
wards avail herself of the reservation." 

Early efTorts to seenre the ezemptfon of pilvale p t op e tly 
at sea tnm capture^— The effort made in connection with 
the Declaration of Paris to abdish not only privateering 
but also the capture of private property at sea, was not 
wholly new. About the middle of the eighteenth century 
the Abbe Mably had lamented the diiterence in treatment 
of private property at sea from that on land" and towards 
the end of the century the distinguished Italian jurists, 
Oaliani" and Asuni," had followed his example. 

The views of Benjamhi ftaaUlar— Similar views were 
held by Benjamin Franklin, and he sought to embody them 
in the Treaty of Peace of 1783 between Oreat Britain and 
the United SUtes. In a letter to Richard Oswald, the 
British Commissioner, reducing his views to writing, he 
said: 

*'It is for the interest of humanity in genersl that the 
occasions of war and the inducements to it should be di- 



"If rapine is abolished, one of the encouragements of 
war is taken away, and peace therefore more likely to 
continue and be lasting^ 

tsWbaitaa, Inter. Law IHgMt, m, p. 4iL 
i»Duia1i Wh— toe, p. 4S8. 

M J. B. llMm-Maritlme Law hi th» War wUk Spela— Kaval Wsr 
OoDige— iBttf. Law SohitioBa. 1901— pp. ISO-UL 
uUMj, La Droit PnUie de UEunf^ II, 407. 
M Oaliani, Rcdit dcr NcvtraUttt (tiani. Ckar), II, tlS» «t aaf. 
iVAnni, Ite MarttinM Law af Xuropa^ n, tSS. 



BUOimOV OF FBIVAXB FaOFJ MT l At tIA. 69 



"Tli« praetiee of robbing mflrehanU on the hii^ Ma% a 
ranntnt of the aneient pinuqr, though it may be aeeidenV 
ally benefieial to partieQlar peraonay ia far from beinc 
profitable to all engaged in it, or to the nation that aii> 
thoriiea it In the beginning of a war aome rieh ahipa, 
not npon their guard, are anrpriaed and taken. Thia en* 
eonragea the ftrat adTenturera to fit out more armed vMiela, 
and many othera to do the aame. But the enemy at tho 
aame time beoome more earefol, arm their merchant ahipa 
better, and render them not ao ea«y to be taken; th^ go 
alao more under protection of eouToya; thna, whfle the 
privateera to take them are multiplied, the Tenda aulgeei 
to be taken; and the ehaneea of profit are diminiahed, ao 
that many eruiaea are made wherein the ezpeuaea overgo 
the gaina, and, aa ia the eaae in other lotteriea, thongli 
particulara haye got priaea, the maaa of adventurera are 
loaera, the whole expeuae of fitting out all the privateeia, 
during a war, bdng much greater than the whole amount 
of gooda taken. Then there ia the national loaa of all the 
labmr of 80 many men during the time th^ have been 
employed in robbing; who, beaidea, apend what they get ia 
riot, dmnkenneaa and debauchery, loae their haUte of ii^ 
duatry, are rarely fit for any wohet buaineaa after a peace, 
and aenre only to inereaae the number of hi^waymen and 
honaebreakera. Even the undertakera who haTC been tot^ 
tunate are by audden wealth led into ezpenahre living; 
the habit of which continuca when the meana of auppcri- 
ing it ceaaca, and finally ruina them; a juat puniahment for 
their having wantonly and unfeelingly ruined many hon- 
eat, innocent traders and their familiea, whoae aubaiatenee 
waa employed in senring the common intereata of 
kind.**" 

Artlde propoaed by ftankUn for the Tkeaty o 
between Cheat Britain and the United 8tatca^Aeeording)y, 
Franklin propoaed the following article: "If war 
should hereafter ariae between QrtaX Britain and the United 
Statca, which Ood forbid, the merchanta of either c ountry 
then residing in the other shall be allowed to remain nine 
montha to collect their debta and settle their aAairs, and 
may depart freely, carrying off all thdr effeeta without 
molcatation or hindrance. And all fisherman, all eidtivatorB 

MWoiln of BcpJunlB FnnkllB (BIscW), VoL Vm, pfu a4e-«i7. 



70 nmio ov pb4ob ajid moLAMAnom ov pim. 

of the eurth, and all artiaaiia or mannfactoreia nnamied, 
and inhabiting nnfortiiled towna, villagiea or plaeea, who 
labor for the eommon subtistenee and benefit of mankiiid, 
and peaceably follow their respeetiye employmenta^ shall 
be allowed to eontinoe the same, and shall not be molested 
1^ the anned foree of the enemy in whose power by the 
events of war th^ may happen to fkll; but, if anything 
is neeessaiy to be taken £rom them, for the nse of sneh 
anned forces the same shall be paid for at a reasonable 
price. And all merchants or traders with their unarmed 
TesselSy employed in eommeroe^ exchanging the products 
of different places, and thereby rendering the necessaries, 
conTenienoes, and comforts of human life more ea«y to 
obtain and more general, shall be allowed to pass freely 
nnmolested. And neither of the powers, parties to this 
treaty, shall grant or issae any commission to any private 
armed vesseli, empowering them to take or destroy sneh 
trading ahips, or interrapt sneh commerce."** 

Its emhodfmimt in the bsaty with PmssbL— This article 
was not indnded in the treaty with Great Britain, bnt al» 
most hs exact counterpart was embodied, as Article xxm 
in the Treaty of Amity and Commerce of 1785, which 
Franklin negotiated with Frederick the Great In 1828 
the Freneh Government announced its intention to adhere 
to the same principle in its expedition against Spain;* 
and President Monroe and his Secretary of State, John 
Quin^ Adams, sought to use the occasion to bring about 
an international agreement to the same effect,** but in this 
th^ were not suecessfuL** 

It Is not improbable that the "psychological moment" 
for effecting the reform in question through international 
agreement was when the Declaration of Paris was mgned. 
At no other time have the evils of war been more palpable 
and its beneiltB less apparent. The reaction which aft^ 
wards took plaee is illustrated by Lwd Palmerston's change 
of position. In 1856, as we have seen, he was ready to 
abdish the capture of private property at sea ^together. 



MLsvdiyi Rewm dm Droit loCnBslkasl, VII, p. U&L 

M Am, Bisit r^pen, iFor. ItoL, Y, Oil. 

ti Slaik. Th» Abolitka €f PriTstMriM ud tht I>Mlmtka €f FuH 



EUMmON OV FUTATS PBO W MTT At tIA. Tl 



In 1862, in the Hooie of Commons^ he dedared that hit 
former yiews were immatore, and that he had come to b^ 
lieve such abolition would be dangerona.** The United 
8tate% howerer, haa continned to follow the lead of Frank* 
lin, Monroe, and Adama, and propoaed at the Fint Peaee 
Ckmf erenoe a Declaration that private property at aea ahonld 
be ]nTi<dable. Aa the anbject waa not embraced in the 
powers of the delegatea, the Declaration waa not adopted, 
bat the wish waa expressed that it be referred to a fntnre 
conference for 'eonsiderati^m.** For the action of the See- 
ond Peace Conference the reader is referred to the aceoont 
of that Conference.** 

Dana's argoment against sooh «zemptio&^— That snch an 
agreement will be reached in the near future seema un- 
likely, for there appears to haye been a growing disindi- 
nation to forswear any of the effective meana of belligcfrent 
action. Dana haa perhaps best stated the argument against 
an agreement, in a note to Wheaton, in which he says: 

''The truth is the most humane and often the most eflU 
dent part of war is that which consists in stopping the 
commerce and cutting off the material resourees of the 
enemy. If cutting off our commerce with him, and his 
with us, cripples and embarrasses him, it must be done. 
Driving his general commerce from the sea, and bloddng 
his ports to keep neutral commerce from him, must diminish 
his resources, and tend to coerce him. It is the least ob- 
jectionable part of warfiffe. 

"It takes no lives, sheds no blood, imperils no house- 
holds; haa ita fidd on the ocean, whidi is a common high- 
way; and deala only with persons and properly voluntarily 
embarked in the chances of war, for the purpose of 
and with the protection of insurance. War is not a ( 
of strength between armies or fleets, nor a competition to 
kill the most men and sink the most vessels, but a grand 
national appeal to force, to secure an object deemed esse 
tial, when every other appeal haa failed. The purpose 
using foi;^ is to coerce your enemy to the act of justice 
assumed to be necessary. It is hasardoua to lay down 

MHuHiiA PhiUamcirtuy Detetca, TUid Strin, CSX9. ISSB. 
M HoUt, The Vmet CcmfeRDea si Tbe HagM^ Sw SOS^ «t Mu 



n mioD ov rsACB axd incLABATio& ov pun. 

abBolute ndes in advanee for all natioUy under all d^ 
enmstaneM, limiting possible means of ooereion.*'" 

Hope for sooh azamplioa lies ratbar in InlemstloBil 
praetioo than in intematioiiial agreement— That the eaptora 
of priyate propertj at sea is often utterly fotile ean hardlj 
be questioned, llie solution of the question would 
to be to class such captures among those "ulterior ] 
of goTcmment,''" of which Chief Justice Marshall speshs, 
which* not following from the fact of war itself are milj 
carried out when the proper political authority thinka them 
necessary. If^ on the occasion of war, each nation should 
announce its intenti<m not to avail itself of this ri^ 
at all, or on condition of reciprocity as Austria and Ptamia 
did in 1866, or should resenre the right, as Spain did with 
regard to privateering in 1898, it is possible that evntually 
a practice of abstention would grow up that would ; 
an agreement possible or superfiuoua. 

MDuia'k WbMloB, p. 40L 

trUaiUd 8tat« ▼. Biowb. S GvuMh, ISS. 



TBM CVnh WAB IK TUK UV11 



CHAFTEB VIL 

THE CIVIL WAB Ol THB USITIV 



Tht Inftmetioiis for Hit OowmiiMBl «f JMdM «f Hit 
Vnitad Btotai in Hit FleUU-Tba Gtvil War in the United 
States will be remembered in the annak of the Laws of 
War for the inoanee of the InatraetioDB for the GofTflm* 
ment of Armiea of the United Statea in the Field, prepared 
b7 Dr. IVaneia lieber and reriaed bgr n board of offleera 
of the United Statea Armj. The eireoniataneea that led 
to their preparation are nairated by Brigadier-Oeneral 
George B. Davia in hia work on the Elementa of Interac- 
tional Law. ''The need of a poaitiye eode of inatraetioDa 
waa," aaja General Davia, ''aeverely felt during the earij 
part of the Civfl War in the United Statea. Dozing the 
firat two yean of that war the Federal Gaverament had 
aneeeeded in plaeing in the field armiea of nnezampled aiae^ 
eompoaed in great part of men taken from eivil porauita 
moat of whom were unfamiliar with militarj aflain, and 
nttezly nnacqaainted with the naagea of war. Thcae armiea 
were eanying on hoatfle operationa of every kind over a 
wide area, and qaeationa of eondderable intrieacy and 
diflienlty were eonstantly arising, whi^ required for their 
deeiaion a knowledge of international law wlii^ waa not 
alwaya poaaeaaed by thoae to whom theae qaeationa were 
anbmitted for deeiaion. Conilieting deeiaiona and mlingi 
were of frequent oeenrrenee in different armiea, and at 
timea in different parte of the aame field of operation and 
great harm not infireqnently rcaolted before time deeinoiia 
eonld be reverted by competent avthorHy. 

''To remedy thia diflleolty, Profeaaor IVaneia Ueber, an 
eminent jnriat, who had been for many yeara an eateemed 
and honored eitiaen of the United Statea, waa reqneated . 
by the Seeretary of War to prepare a eode of instrnetfen 
for the government of the armiea in the field* Thia eode 
while eoi^rming to the eziating naagea of war on land, 
waa to contain an^ modifleationa aa were neeeaaaiy ta 
adapt thoae naagea to the peenliar dreamataneea of the 
eonteat then prevailing. The ndea prepared by Dr. Lieber 



94 THE CmL WAS Ur THB UVITID 

were sabmitled to a boeid of offleeriy Iff whom th^ 
mpprovti and reeommended for adoption. Th^ were pnb* 
Itthed in 18d3» and were made obligatory iqMm the armiei 
of the United Sutee hy their publication in the form of a 
General Order of the War Department'^ 

Thfljf were the fttit oomprdienilve oodHleaMon ef the 
lawa off war^— The Instmetiom were of apeeial importance 
at the iint comprehenaiye codification of the lawi of war. 
At the Bronda Conference of 1874, the PMeident, Baron 
Jomini, declared it waa th^ that had raggeeted IJie idea 
of an international war code and had thua led the Bonian 
Emperor to eomyAt the Gonf erence,* and aa the Project 
of Declaration adopted at Bnusda aenred aa the bade of 
The Hagoe Begnlationa relating to the Lawi and Coatoma 
of War on Land, the hiatorical importance of the Inetmo- 
tiona ia erident. 

Their defeeti^-Bnt it waa a fint attempt It embodied 
extreme viewa of the rights of the militarj occnpant over 
the inhabitant! of occupied territOTy/ followed too doedy 
the hard precedent! of earlier wara,^ and waa in general 
diifnee and academic. Written by a nonmilitary man, it 
lacked the deameec which actual experience would have 
afforded, and omitted much that might have occurred to 
<me who had seen reeponmUe senrice in the fidd. Fur- 
thermore, it waa the work of an individual and not of a 
cdlcetiTe body. The advantage of the latter in legidatiye 
work of any kind ia not easily over-eetimated, Prol Hol- 
land has noticed this in connection with the drawing up 
of the Uanual of the Laws of War of the Institute of Inter- 
national Law. ''I was much struck,'* he says, ''by the 
advantage of getting a number of competent persons to 
work simultancoudy up<m one subject, even when oral diar 
cuasion of their differences of opinion waa only partially 
poanble. It was surprising to see how, when a phrase had 
carefully been considered for months, it waa still posnble 
fmr a fi^sh mind to make a suggestion for its amendment, 
whidi erery one at once saw to be an improTcment'* 



tDsffa, ITiMM iiti of IsteraatioBftl Lsw, pp. 

tPMUMol ^ of Fidl OoBi, Fui. nipcf% lS7i^ MiM. He. L 

s.aitid|i as. Si; e^ as. 

•HoOtad, Stadki is latanwtloMl Lsw, fw St 



AOn OF UBQUmiATIOK AND OOVFiaOAlUIII. 75 

Tht Oon fa d w ito A0I «f SafneitnftioB.— ^Etrly in the war, 
on Angiwt ^ 1861, the United SUtet Congren pawad an 
aet aabjeeting *'to aoxore and forfeitiire all prc^perly of 
eyery kind, naed or intended to be need, in aiding; abet> 
ting or promoting the inrarreetion,''" or allowed or per> 
mitted to be ao naed, indnding alavea emplojed in militaiy 
operations' Tkia waa dearly within belligerent ri^t at 
that time. Prop e rty apeeially adapted to audi porpoaea 
when on the aea woidd be daaaed aa ecmtraband of war and 
oonilacated even in the handa of neatrala. Bnt exaggerated 
ideaa of the effect of the atatnte appear to have been hdd 
1^ the Confederate anthoritiea, who replied by the Aet of 
Seqaeatration of Angoat 90, 1861, whi^ anbjeeted to 8e> 
qneatration all pn^ierty of IJie inhabitanta of the Northern 
Statea, indnding debta owed to them hj Sonthemen^ in 
order to indemnify thoae aiding the Confedcorate Statea 
for loaaea inenrred nnder any eon^cation aeta of the United 
Statea or of any of the Statea thereol* Thia aet oonld 
have been jnatified only .aa a meaanre of retaliation for the 
Federal Conilacation Act, but, aa that aet waa within bd- 
ligerent right, it fomiahed no excoae for the aeiiore of 
private propwty and eapeeially of dd>ta, whidi by thia 
time had oome to be reoognised aa inviolable. Mr. Blaine 
atatea that the Seqneatration Aet waa largely reaponaihla 
for the Conilacation and Captured and Abandoned Prop- 
erty Aeta paaMd later in the North.* 

The Federal Oonflicalion A0I of Jnly 17, 18tt^-The Fed- 
eral Confiacation Aet of Jnly 17, 18G2, directed that pro- 
ceedingi in nm be taken againat all prop e rty of thoae who 
did not ceaae after aix^ daya to aid and abet the rdid- 
lion.^ The aet waa directed at inrivate property generally 
and can be defended only aa a retaliation for the Seqnea- 
tration Aet or aa an exerdae of aovereign power hi aiq^- 
preanng rebdlion, not aa an ordinary exerciae of bdligerent 
ri^t. Aa a matter of fact, however, the re quir e m ent that 
the proeeedingi for conilication mnat be bron^t in the 
dktriet or territorial court of the United BUtea, at the 

• UDilid Blatai v. Klda, » WaUmi^ lie. 

f MePbnMB, HblMy of tht BcbdUom p. INL 

•iifiPhtiMB. ^ aoiL 

• BiMHam, Tvratj Ymn of CVwgw^ I, Mk 
MMePhmoH, pp. lae-liT. 



76 THB GinL WAB UT THB UVITIP 

plaee where the proper^ was f oond, limited its operatioii 
to Northern States, or to places where the power of the 
United Stotes was firmlj esUblished. As a result, the aet 
netted only $408,008.03 into the United SUtes Tressoiy. 
The retoms of the operation of the Confederate BecpMstrm- 
tion Aet sre very meagEe, bnt from Jannaiy 1, 1863» to 
September 80, 1864, th^ amounted to $6402,070^ in Con- 
federate eozrencj, equivalent to perhaps $380j000 in gold 
at the time of ooUeetion.*^ 

The Gaptured and Abandoned Prope rty Aet^— Mn^ more 
important was the Captured and Abandoned Ih n up er ty Aet 
of Hareh 12, 1863. It detiared that all eaptured and aban- 
doned propnty not used or intended to be used f o^ waging 
or carrying on war against the United States should be 
turned over to agents of the Tressuiy, and the proceeds 
turned into the Treasury, subject to daim by the own» 
till two years after the suppression of the rebellion." '^nie 
aet was undoubtedly intended to apply partieulaily to eot- 
t<m and the other staple products of the Southern States. 
To such products only was it in practice applied.'*" Th^ 
constituted the sinews of the South, her mainstsy in the 
war. From the sales under this act, $31,722,466.20 was 
realised." 

It was the general impression and such was the literal 
wording of the act that only those owners who had never 
given any aid or comfort to the rebellion would be entitled 
to daim the proceeds of the property. Accordini^ few 
whcf had participated in the rebellion even though th^ 
had been pardoned, put in any daim under the Act and 
when, in the December Term of 1871, the Supreme Court 
decided that the property had not been coniiscated, but 
had been hdd in trust not only for those who had been 
Icqral, but for those who had been pardoned as wdl" the 
two years for presenting datms had passed. Con g r essi onal 
Committees have continued to make efforts to have the 
period for presenting daims revived, but so far unsnecess- 
f&ny, so that at last accounts $10,512,007.96 was still hdd 



iiSdiwabb The OoBfcdcralt Stste of Amcffai, p. ISa 

at IS waiiMib lae. 

uMoon, iBtOTBAUoiiAl AiUtratioBi, VoL 4, p. ST- 
a4HMM Repent 784, Slit Om^rm, lit ' 
tfUsited BlatM v. KM*, IS ^tJkm, ISi 



TKEkTUSXT OF PUTATB PIOPBITT. 77 

in trust by the United States Qovernment for benefieiaries 
who had no means of reaching it.'* 

Treatment of private proper^ Iff the federal foreea^— 
The federal forces did not, as a rale, live off the eoontiy. 
One of the first to do this was General Pope. On Jnly 18^ 
1862; he gave orders that his troops should, as far as pos- 
siUe, subsist on the country. He earefullj regulated the 
gathering of supplies and ordered Touchers to be given 
for the reimbursement of loyal citisens after the war.^* 
Later on there were other instances of living off the eoun> 
try, that of General Sherman, on his March to the Sea bdng 
the most notable. Of that march General Sherman says: 
*'No army eould have carried along sufficient food ud 
forage for a march of three hundred miles; so that foraging 
in some shape was necessary. The eonntry was sparady 
settled, with no magistrates or civil authorities who eould 
respond to requisitions, as is done in sll the wars of Europe; 
so that this system of forapng was simply indispensable 
to our success.''^' Where the officer in command thought 
proper written certificates of the facts but no receipts were 
to be given.** 

Oeneral Sherman's action at Atlanta^— General Sherman's 
action at Atlanta in expelling the inhabitants and destroy- 
ing a good part of the town seems bard to justify. In 
drfense of hii action General Sherman said he wished atl 
4he houses for military storage and occupation; that he 
desired to contract the lines of defense to the narrow and 
vital parts of the city; that if the poor had been allowed 
to renmin th^ would eventually have had to be fed, and 
that the continued residence of the inhabitants would have 
been liable to result in correspondence dangerous to the 



The devastation of the Shenandoah VsUcy by 
Sheridan ^-Another noted incident of the war was the dev* 
astation of the Ettienandoah Vall^ by General Sheridan. 
The vall^ had been of immeasurable value to Oeneral 
Lee in furnishing him with men and supplies. The raid 



mHmm Kepoft 784, Slit Om^icm, U* 8i 
tf Bopci, The Amiy mdcr Bd^ p. 17C 
itShonsB^i lloBoin, VoL II, p. 18IL 
wiSML. p. 17C 






78 fHB OlflL WAB Ur THB UVITD WUOM. . 

was made under orden from 'General Grantp wliOy on 
Angnet IS, 1864, wiotet 

*'If Jim can poasiUj spare a division of caTalzj, send 
them throngh Londoon County to destn^ and earry off 
the eropsy animals, negroes, and all men nnder fifty years 
of age eapable of bearing arms. In this way yoa will get 
m^iy of Mosby^i men. All male eitiaens nnder fifty esn 
f airiy be held aa prisonen of war, not aa eitisen prisoners. 
If not already soldien, th^ will be made so the moment 
the rebel srmy gets hold il them."" The order was an 
extreme one, but aimed aa it was at a population eomposed 
largely of gaeriOas, as Moaby^i men were^ it eannot be aaid 
to laek jmrtifleatlon. 

Qeneral aBierldaw's "Hews on the ftmdamental prinetplss 
of the Iftws ef war^r-Oeiieral Orant^i orders were the oo- 
euion of the following eomment on the part of Qeneral 

''Henee, as I hsTS said, I endorsed Orsnt^i programme, 
for. I do not hold war to mean simply that Ihies of men 
shall engage eaeh other in battle, and material interesti 
be ignored. This is but' a dnei, in whi^ one eombatant 
seeks the other^i life; war means mneh more, and is far 
worse than thii. Those who rest si home .in peaee and 
plenty see bnt little of the honon attending sn^ a dnei, 
and even grow indifferent to them as the strogi^ goes on, 
eontenting themselves with encouraging all who are able- ^ 
bodied to enlist in the eftuse to fill fq> the shattered ranks 
as death thins theuL It is another matter, however, when 
deprivation and suffering are brought to their own doors. 
Then the ease appears mu^ graver, for the loss of prop- 
erty weighs heavy with the most of mankind, heavier often 
than the saerifiees made on the fidd of battle. Death is 
popularly eonsidered the maTimum of punishment in war, 
but it is not; reduction to poverty bringi prayers for peaee 
more surely and more quieUy than docs the destruction of 
human life, as the selfishness of man has demonstrated in 
jnora thsa one great eonfiiet*'" 

^ Bbnilar views ef General Bhermaa.— Oenmd Sherman had 
written in a similar strain from Savannah to Qeneral Hal- 
leek, December 2i 1861 Hesaids 






amuLLk w ABFAI& n 

**I attach more importance to theie deep inciiioiia into the^ 
enemy's coontry, became this war diflen from Bnropean 
wan in tide particalar; we are not only fighting hostile 
armies, but a hostile people, and mnst make old and yoong^ 
rich and poor, feel the hard hand of war, as well as their oi^ 
ganised annies. I know that this recent moTcment of mine 
through Georgia has had a wonderfol effect in this respect 
. Thousands who have been deceiyed by their lying newspa- 
pers to bdieve that we were being whipped all the time now 
realise the trath, and have no appetite for a repetition of the 
same. experience."" ^ — 

ne main features of the March to the Sea and of 
Sheridsa's action In tha ghenawdoah abo?e soond 
—The opinions of two such generals is not to be regarded 
lightly. ExprcBsions in them may nndonbtedly be inter- 
preted to jnstiljy acts which none would have more forcibly 
condemned than th^. Bat in judging snch expressions 
th^ can only be understood in the light of the dream- 
stances that occasioned theoL • These were Sheridan^i m^ 
tion in the Shenandoah and Sherman's March to the Sea. 
Any theory which would condemn the essentisl f eatores 
of either would need strong srguments in its ftiTor. 

Ihe resort to guerOla warfare by the Oonf ederale aatiiasw 
Hies.— In April, 18G2, the organisation of Partisan Bangers 
wss authoriaed by the Confederate Goyemment,'* although 
previously to that time iM>lated bands of men had been 
recognised by Confederate commanders ssscddieis. Their 
excesses, or often the excesses committed by others under 
the protection of their name, gave rise to repeated cor- 
respondence on the part of the opposing generals. On July 
8, 1862, when in command of the army in West Tennessee, 
General Grant had occssion to issue the following orders 

''The ^yrtem of guerilla warfare now being pro secut ed 
by some troops organised under the authority of the so- 
called Southern Confederacy, and others without su^ au- 
thority, being so pernicious to the welfare of the community 
where it is carried on, and it bemg within the power of 



, voL n, fw an. 

MOflMAl BmoHi of tte War of tkt BobtOioa, Bnim 17, YoL I, 
puies^«lii|L 



W THx GnriL WAB ur the wnoD nxm. 

the eomiimnftiM to sappren thn MjwUm, H is ordered that 
vherever lose is snstsiiied l^ the govemment^ eoUeetions 
ehsll be made hy seispre of a soffieieiit amoimt of personal 
properly from persons in tlie immediate neighborhood sgrm- 
pathiring with the rebellion to remunerate the government 
for all loss and expense of eoQeetion. 

''Persons acting as guerillas withoot orgamsation and 
without uniform to distinguish them from private dtiaeos 
are not entitled to treatment as prisoners of war when 
eau^t and will not reeeive such treatment.'^ 

Ita failure.— But it was not the Northern commanders 
alone who had cause to complain. In his report of No- 
vember 26, 1863» James A. Sedden, the Confederate Sec- 
retary of War, said that their Bangers when under inefll- 
dent officers and within the Confederate lines had come 
to be regarded aa more formidable and destmetivo to their 
own people than to the enemy.** Accordini^ on Fbbruaiy 
17, 1864, the act organising Partisan Bangers was repealed, 
permission being given the Seeretaiy of War to except from 
such act companies acting within the lines of the enemy." 
In the first of the following April, General Lee wrote to 
the War Department saying that he would see to the trans- 
fer of the partisans connected with his army into the regu- 
lar service, but that if it were not possible to do that with 
Mosby's men, he would recommend the retention of that 
battalion aa partisans. He was inclined to bdieve Mosby^i 
disdpline had been strict, but added; 

''Experience has convinced me that it is almost impos- 
sible under the best officers even, to have disdpline in these 
bands of partisan rangers, or to prevent them from becom- 
ing an injury instead of a benefit to the service^ and even 
where this is accomplished, the system gives license to 
many deserters and marauders who assume to bdong to 
these authoriied companies and commit depredations on 
friend and foe alike. Another great objection to them is 
the bad effect upon the disdpline of the amy from the 
constant desire of the men to leave their commands and 
enjoy the great license allowed in these bands. mOt the 

ttlML, Balm h VoL XVn, Tut II, p. SSL 
WAM, Bnfai IV, VoL n, pw — 
sfi»ML.y€LII],pulti. 



' THB "ron PILLOW MAMACBB." 81 

dni^e ezeeption mentioiMd, I liope the order will be ivaed 
at onee, dubanding the emnpaiiiee Imd hattaliona ■enrinf 
in this depertment"** 

ne goieral ineHloleiioj and vndeafrabflilj ef gmnfltai 
warf are*— The experienee of Ctanerala Grant and Lee and 
of the other -generak of the war aeema to eoineide with 
that of eommanderi in all time aa to the ineffiden^ and 
nndeairabilitj of irregolac troopa nnder ordinary eiremn- 
ataneea. * 

The ^'Vort POlow Ibaaaon.''— Threata of ''no quarter'' 
were at timea made during the war, but apparently not 
earned ont. Notiee, however, mnat be. taken of what ia 
known aa the ''Fort Pillow Maiaaere,** Aa over three hnn> 
dred out of a total garriaon of ftve himdred and fifty^aeven 
men annriyed, it ia aeen that no aneh general alanghter 
eonld have taken place aa haa aometimea been elaimed. 
Of the pnaonera, two hundred and twenty-aix were aUe ta 
march away wiUi their captora.** The reat were receiTed 
on board the United Statea Steamer Silver CUmd on the 
following day. It ia a aignificant fact that abqut half of 
thoae recttved on board were negroea. Conaidering the 
cireumatancea of the caae, the number of killed doca not 
aeem extraordinary. After a atubbom resiatanee the gar-' 
ri8<m endeavored to eacape over the bluif to a United Statea 
gunboat which waa lying in the river. Th^ did not lower 
the flag and the Confederate aoldien below the Uuff had 
no meana ot knowing that the fort waa taken till the hal> 
yarda of the flag were eut by one of Qeneral Forreat% 
offieera."* General Forrert aeema to haveaeted with great 
promptneaa in bringing the firing to a eloae. In hia offidal 
report he aaya that twenty minutea after the bu|^e had 
aounded the charge, firing had eeaaed.*^ General Sherman 
teatifiea that General Forreat waa uauaDy very kind in 
hia treatment of priaonera on other oocaaiona.'* The con- 
temporary reporta of the afUr muat be attributed to the 
tremendoua excitement and paaaion under whidi everyone 
at the time waa labonng. 

»IML, Bnfai I, VoL III I II, fw ia«L 

» Wye^ life of Gtik FoffMl, p. a«L 

m8m Wydh, Liii of Qm. FoffMl, aiii Hatbo^ 

•iw^«ih.fwaaiL 
ttMoBoinb Vol n, if^ la-ia. 

6 



81 THB OlflL WAB TM THB UJilUU 



«f priMDm «f wir^— The trMtment-ot prii- 
of wtr left mn^ to be regretted, but little een be 
gained by going into its detmila. Eerlj in the war penons 
eaptnred on Confederate prirmteen were aenteneed to death 
aa piratea, bntp whether from fear of retaliation or a aenae 
of jnatiee^ their aentenee waa never executed. Henceforth, 
pcraona ao captored were allowed the privilegea of iniaoneri 
of war, and the armica in the field in their condnet towarda 
each other acted according to the prindplca of international 
waiCue. 

The Oonfederaqr a da facto govmunent— An important 
diatinction waa drawn between acta done in obedience to 
the Confederate GoTcmment aa a <b facto goTcmment, and 
acta done in aid of the rebellion. The diatingoiahing char> 
acteriatica of a <b facto government of the tTP^ of the Con> 
federal. Chief Jnatice Chaae declared to be (1), "that ita 
odatence ia maintained by aetiye militaiy power, within 
the territorica, and againat the ri^tfol anthori^ of an 
catabliahed and lawful goTemment; and (2), that whila 
ia eziata, it mnat neccaaarily be ob^ed in tML mattera hy 
private dtiaena who, by acta of obedience, rendered in 
aohmianoin to anch force, do not become reaponaible, aa 
wrongdoera, for thcae acta, thoa^ not warranted by the 
lawa of the rightful government. * * * To the extent then, of 
actual aupremacy, however unlawfolly gained, in all mat- 
ten of government within ita military linea, ti&e power of 
the inaurgent government cannot be queationcd. That 
mqxrema^ did not juatity acta of hoatility to the United 
Statea. How far it ahould excuae them mnat be left to the 
lawful government up<m the reeatabliahment of ita authority. 
But it made obedience to ita authority, in civil and load 
mattera, not only a n eceaaity but a duty. Without aueh 
obedience civil order ia impoarible."** So, ''a contract for 
the payment of Confederate Statea treaauxy notea, made 
between partiea reaiding within the ao-caUed Confederate 
Statea" waa enforced ''in the courta of the United Statea, 
the contract having been made on a aale of property in 
the uaual courae of buanieaa, and not for the pnrpoae of 
giving current to the notea or otherwiae aiding the r^ 



»Tborfa«toa v. flbiilh, a WallMib O-IL 

1 V. &Bilh, a Wl]lM% 1. 



ftAinZ4ST OOMXItlUW. 



11i#Piiit6d8l>t>i8MttMyCPmnin1wl<wi.^-On«ofthei 
hopeful teatoTCS of the war was the ereation of the United 
States Sanitaiy Commianoii, a Toliiiitarj organiiatioii, tor 
the purpoaea ''of mqiiiry and adviee in reqMet of the aani- 
taiy interesia of the United Statea forcea." It waa one 
of the maiij inataneea of the inereaaed attention to the 
care of the troopa which had commenced with the work of 
Mka Nightingale and the Sanitaiy CommiaBion in the 
Crimean War, 



84 THE OBirifA connmnum of 1864. 



CHAFTEB VnL 
THB onrsvA oomnKTioK of 1864 axb the OaOLABATlOir OF 



/ 



Th* Mad fhiCI dtfdoped iBlo Iho Oonofft ( 
dependenUy, and almoat aimidtaneoiialy, aa tha residt of 
their azperienoea in the Italian War of 1858, Dr. Palaadano 
ia Italy, IL Henri Arnault in France, and M. Henri Dnnant 
in Geneva, called attention to the need of greater care for 
the aiek and wonnded.^ The efPorta of IL Dnnant bore 
fmit. That thia waa ao, or at any rate that the fmit waa 
10 abundant, waa largely dne to the hnmanity, energy and 
diplomacy of hia friend, IL Gnataye Moynier. Among the 
namea that haTe atood for the betterment of manbind hk 
deacnrea a hi^ plaee. 

The work of the Oenofn Boeiety of PnUlo VtOlty^— Aa 
Prcaident of the Geneva Society of PnUic Utility, IL 
Moynior act about deriaing waya and meana lor the cany* 
ing oat of the ideaa of IL Dnnant, and aa a reaolt ano- 
ceeded in gathering together at Geneva a aemi-offleial con- 
ference xkf militaiy men and doetora, abont half of whom 
were repreaentativea of the war departmenta of the dif- 
ferent govemmenta. The Conference aat from the 26th to 
the 29th of October, 1863. It decided on the creation of 
a network of committeea of anccor for the aick and wonnded 
in all coontriea, and ezpreaNd the wiah ''that nentrality 
be proclaimed in time of war, 1^ belligerent nationa, for 
ambnUncea and hoapitala, and that it be equally admitted 
in the moat comfdete manner for the olBcial aanitary per- 
aonnel, for vdnnteer nnraea, for the iiihabitanta of the 
coontiy raecoring the wonnded, and for the wonnded them- 
advea; that aome identical, diadnctive aign be adopted for 
the aanitaiy corpa of all the armiea, or at leaat for the 
peraona of the aame army attached to that aervice; and that 
an identical flag be adopted in all coontriea for ambolaneca 
and iMM^tak.'* 



1 MqjBkr, Ebide rar le OoHfoiliaa 4t GaAf% p. an el Mf. 
• MojBi«,Atf«puaa. 



Wofk of the OonttraiM «f 186&-*It win be obienred 
that the work of the Gonf ereoee eontisted of two parts* 
the deekioii to ereate Bed Croea Sodetiei and the ezprea- - 
aion of the wnh for the nentraliiation of the sick and 
wounded and of the penona and property oonnected there- 
with. The one led to the Bed Croea Soeietiea, the other to 
the Geneva Convention of 1864^ two things commonly as-, 
soeiated bnt which were entirely distinct The Convention 
of Geneva, which waa adopted in the following year, did 
not extend the protection which it offered the official staff 
to volunteer societies. At the Conference of Bmssels of 
1874, it waa the opinion thai anch protection should be so 
extended, and this has now bcgen done by the Bevised Con- 
vention of 1908. Into the history of the Bed Gross Socio- 
tics it is not the purpose of this work to go, though it 
might be done with great profit The ability of the Pken- 
dent of the International Committee at Ctaneva, M. Gustavo 
Moynier, has tsken the society out of the category of a 
mere priva^ association and placed it in a poaition where 
it desk directly with governments. 

Ihe iDtemallonal Congress of 1861— The Conference of 
1883 was not diplomatic as most of its official members rep- 
resented thdr war departments rather than their govem- 
ments; but it invested the Geneva Committee with power 
to take stepa towards the calling of a Congress which diould 
represent the governments themselves. The committee 
.sounded its various correspondents as to the disposition 
of their respective ^vemments, and finding their answers 
favorable, secured the cooperation of the Swiss Federal 
Council, which, on June 6, 1864^ addressed invitationa to 
most of the States of Europe and America to attend- an 
International Congress. Sixteen states, including Ptamia, 
Spsin, the United Stotes, France, Great BriUin, Itsly and 
Norway and Sweden responded by sending ddegates. The 
Congress met on August 8, snd on August 22, 1864^ a treaty 
waa signed along the general linea of the views expressed 
by the Conference of the preceding yeur. This treaty haa 
aince become famous as the Geneva Convention.* 

Aa already stated, this Convention gave no recognitioB 
to what have since become known as the Bed Cross So- 
deties, it being feared that such recognition mi^t result 

puSl^eiMi. 



86 TBB oxifxf A oomnniTiov or 1864. • 

in interf erenee with military operations. It, liowcnr«r, de- 
clared that places used exdnaiTdy for the sick and woimded 
■honld not be made the scene of hostile operations; that 
ambnUnceSy or field hospitals, in actual sendee shonld hfi 
retomed on the recovery of the sick and wounded in them; 
and that prisoners incapable of farther service shonld be 
. sent back, as shonld the medical and rdigioos staff of the 
army, on the completion of the duties in which th^ were 
engaged at the time of the captore. The Convention fnr^ 
ther emphasised the obligation to care for the sick and 
wounded, no matter to what nation th^ shonld belong; 
declared that the inviolability of noncombatants shonld not 
be forfeited for sheltering the sick and wonnded, but that 
th^ shonld be exempt ^m quartering and freed from a 
portion of the war contributions imposed. As a compliment 
to the Swiss Bepnblic, the Congress chose the design of 
its national flag with tiie colors reversed, a red cross on a 
white field as a mark to distinguish the medical and r^ 
ligious personnel and the places set aside for the care of 
the sick and wounded. 

The oordlal reception given the OonventioiL— The reeep* 
tion given to the Convention was very cordiaL In less 
than four years all Europe had adhered to it, including 
even Turk^, which adhered July 5, 1865. Persia was the 
first of the purely Asiatic nations, and Salvador the first 
of the American, to follow the example of those of Europe. 
Both ngned the Convention in 1874. Salvador was fol> 
lowed by Bolivia, Chili and the Argentine BepuUie, in 
1879; by Peru in 1880, and by the United Stotes in 1882. 
In Asia, the example of Persia was followed by Japan, 
June 5, 1886; by Siam, June 29, 1895; and by Chhia, June 
29,1904. 

The signifieaaoe ef the OonventioiL— The significance of 
the Geneva Convention lay not in the novdty of Us idess, 
as most of its requirements had already come to be recog- 
nised as usages of war, but in the ftict that it crystallised 
the intense humanitarian spirit of the age which called it 
into being, reacted on and helped to make more intense 
that spirit and preserved the expression of it for an age 
which seems likely to be a sterner one than that which 
p re c e d ed It. 

Additional ArtioleB ef 188&— The experience of the . 



87 

tro-Prarian War of 1866 looii made the need ol eertain 
reTuioiH evident. The Swin FMeral CkHineil eonvoked a 
Congren at GeneTa, whieh met there in October, 1868^ and 
Toted what have linee been known at the Additiimal Artidee 
of 1868, Noe. 71 to ZV of whieh related exdnaiTely to . 
maritime warfare. They never became binding through 
lack of nnanimitj in their ratification, bnt during the 
Franco-Oerman War and the Spaniah-Ameriean War, they 
were adopted aa a modn» vivendi pending hoetilitiea. The 
artidea rdating to land warfare had an especial value aa 
interpretationi of the Convention of 1864. 

no Dedarmtlon of Bt Petenborf.— Almost simultano^ 
oody with the Additional Artidea of 1868 there waa drawn 
up the famous Declaration of St. Petersburg. Early in 
^ 1868, there was introduced into the Bossian army, for the 
purpose of destroying caissons of ammunition, a bullet, 
much used in hunting the tiger and dephant in India, which 
was furnished with a percusnon cap, and on coming into 
contact inth hard surfaces exploded. In 1864, the Minkter ) 
of War, deeming it improper that these bullets dundd be ( 
used against men, ordered that th^ ahould be distributedy'^ 
only to the under-officers of sharp-shooters, who were never 
to have more than ten at their disposd and were to use 
them with great care. Similar bullets were also in use in 
other countries.* 

no use of a new ezidosive bullet proposed to the Bos- 
sian Ckivemment in 1867^— In 1867 another ezplonve buDet^ 
without the cap, but which exploded by contact with a 
substance even as soft as the human body, and whidi was 
shattered by such explosion— an effect whidi the pereoi^ 
non cap had not produced— was proposed to the Bosdaa 
Government General Milutine, the Minister of War, feel- 
ing that the use of such bullets would unnecesssrily in- 
eresse the miseries of war, proposed to the Emperor Alex- 
ander either eompletdy to renounce the use <rf explodve 
bullets or to use only those with percusnon caps whieh 
exploded only on contact with a haid substance. The idea 
of the Minister was approved by the Emperor, who^ to 
give it wider application, convoked a conference of the 
powers at St Petersborf.* 

«lffljidtr, pp. sia-sic 
•iSML. iff^ sii^sia 



8S 



THi OBTBTA oomfBinEiair m 19$L 



/ 



ThtlalttiirtfaDallBUlttjCkwnnrirtm 
■1 Mflitory Commiflsioiiy as the Conference eeUed UmU; 
inelnded repfeeentativee of meet of the Eoropeaa powei% 
and late in the aeasaon the representatiTe of Pen^ 
[Pl^vlo u a eorreapondenee had ahown a una 
ment'in favor of the prohibition of all ezploaiTe boIUta. 
It-waa felt that a role that merely distingoiahed between 
different varietiea of them wonld be iUnaoiy.* Proaria 
even iranted to go further and extend the prohibitioii to 
nnmerona projeetilea, anch aa chain and bar shot, which 
German writera, eapedany, had nsoally condemned. Bngu 
land and IVaneCy however, were not willing to go into any 
general conaideration of the aabject and ao the matter waa 
dropped,* althongh the reqneet of Switaerland that inflam- 
mable bnlleta be inelnded in the prohibition waa acceded 
to. There are not the aame objeetiona to the nae of ez- 
ploaivea in ahella aa in bnlleta, and ao the prohibition waa 
confined to projectilea of Icaa weight than fonr hnndred 
grammea or fourteen omicea avoirdnpoia. The Declaration 
finally drawn np beara the date of November 4-16^ 186&. 
It haa been acceded to by moat of the European Statca. 

•/Mi, pp. aia-aaa. 

vPrndier-Fodcnt, Droit latcnyttliMl Pnblfc;, VI, pfw 



mm frnmoiHiBuiAii wii. 



GELAFTEB EL 

THX F«AKO0-OER2LiH WAl. 



TIm importuot of Um Vhoioo-Oermaii War fa Am dmt 
opuMni of Um Ivm of wir.— The Franco-Gemiaii War waa 
prolifie of eontrayeisiea both aa to law and aa to faet Drma 
to deaperation by the eataatrophea that had beUlen then, 
the Freneh people, or at leaat individual 
aorted to an inegnlar wai&re which gave riae to 
tiona on the part of the Germana and eanaed the war to 
aaaume a bittemcaa that made oontrorer^ inevitablo. MaA 
of the modem law of war aeeordini^ datea from thai p^ 
riod, and mueh that waa not brought ont direetlj la eon- 
neetion with the war waa afterwarda developed, eq>eeiallj 
at the Bmasela Conference of 1874, aa a reanlt of the ex- 
perience gained therein. 

Obaervaaee of the Geneva OonTeatlon, tha aaa o 
aive bnUeta and the bombardment of town&— In the 
German war, all the belligerenta were partiea to the Geneva 
Convention of 1864 and the St Petersbarg Declaration e( 
1868, and, aa haa bean aeen, th^ adopted the Additional 
Artidea of 1868 aa a modvB vivmdL in the nae of explo- 
dve bnlleta and the bombardment of undefended towB% 
there appeara to have been little to criticpae, althoo^ grava 
chargea were made on both aidea. In moat caaea of boBi-> 
bardment, pr e v l ou a notice waa given hf the Germaa eoni- 
mandera, bat in the bombardment of Paria thia waa not the 
caae. The lack of notice at.Paria waa made the aabjeet 
proteat by the diplomatic eorpa within the city* in 
ing whom Binnarek took the poaition that notice waa 
obligatory.* Snch a poaition woold n ow be antenahla^ ez> 
cept in caaea of aaaanlt, by H. XXVL The aheOing of the 
reaidence portion of Paria and other towna haa been eoii> 
demned on accoont of the miaery eanaed therein to noa- 
combatantB, but at Bmasela General Yoigta^Bheti waa vt> 
terly oppoaed to admitting the illegality* of the ptaetiea 

tMAhm DiploBiftti^Mi, 1871-1871, VcL TV, pu lUk 
• AxAhm DiplonatiqaM, 1871-1871, VcL IT, pu laaa 
aPMtoeol 1 «f OnwMttt-, FuL Fkpaib 1878^ HIm. Bk. Upi lia 



aa 



TBI flAVahOmUJf WAl. 



and there 'k little reasoii to sappoee a different view will 
be taken in the fatnre in view of its eif eetiTeneH. 

Smplogmenl of umg% troopa^-The qaeation of the nae 
of savage or semi-eivflised troops has arisen fireqnentlj 
in reeent warfare, and it did here. In his note of January 
9, 1871t Binnarek gave instances of emeities committed 1^ 
the Algerian troops who' formed a small part of the French 
army^ and Count Chandordy's reply waa nnsatisfactoiy." 
Bolin-Jaeqnemyns, the most impartial commentator on the 
erents of the war, condemns in seyere terms their nse then, 
as in 1859.* Calvo, who is inclined to be favorable to the 
nench, on the other hand, thinks it contestable that the 
nench Gtoyemment allowed any of the improper practices 
to which the Africans were accustomed in their own wai^ 
fire, as those who had been enrolled had come constantly 
in contact with French soldiers, were commanded by F^rench 
officers and subject to the same discipline as the rest of 
the army.* 

The fhmes-tlreunL— But of far more importance.thaa the 
question as to whether the Algerians were entitled to the 
quality of soldiers waa the question whether the firancs- 
tireurs were. After the first dinsters the iVench Gorera- 
ment took steps to increase the strength of the army, and 
with this end in view authorised the orgudsation of corps 
of'firancs-tireurs, detached bodies which should act on the 
flank and rear of the enemy and thus threaten his lines 
of conmiunication, ke^ a considerable body of the enemy 
from the front, and annoy him generally. Where a nation 
is fighting a war to the death, say for national ezistenee^ 
guerilla fighting of this kind may be cTcn to the hi|^est 
degree commendable, but otherwise experience would seem 
to teach that it is very much to be deplored. The eqieri- 
ence with the firancs-tireurs seems to haye been tiie same 
as that with the Partisan Bangers of the South. They were 
more of a scourge to friend than to foe, uid were the cause 
of innumerable acts of irregularity done in their name and 
often amounting to crimes, which gave rise to strong re- 
criminations on the part of the Germans and resulted in 

«Aiddf« DiploBiitiqiia, ISTl-lSTl, IT, ^ Ittl 

■ IML, p. 14eS. 

•Bcvm de DnH latonatknl, 11, SSa 

f cufcb Lt Dieit iirtnMiikMi, rr, laa 



the war amuning a eharaetar of bitterneaa which it need 
never have taken en. 

Oerman prodamalkn aa to firano^ireim.— The following 
prodamation was early pnbliahed 1^ the German foreei 
in the regiona oeeapied by them in Fhmee: 

''The eommander-in-ehief hereby notifiea the inhabitanta 
of the anrondiBBement that a priaoner to be treated aa a 
priaoner of war onght to make good hia qoality aa a Freneh 
aoldier by eatabliahing that, by an order emanating from 
legal authority and addreaMd to hia penon, he haa been 
called to the aervice and eorolled on the liata of a corpa 
militarily organized by the Freneh Gtoyemmenl At the 
aame time hia quality of aoldier, he being a part of the ao- 
tiye army, onght to be indicated by military and nnif orm 
inaignia, inaeparable and reoogniiable by the naked qre 
at rifle ahot 

''The individnala who have taken np arma without hav- 
ing complied with the conditiona above cited, wiD not be 
considered aa priaonera of war. Th^ wiD be judged by 
a council of war, and unlcaa they have rendered thomdvea 
culpable of action which carriea with it a more aevere pen-, 
alty, will be condemned to ten yeara of hard labor and 
detained in Germany till the expiration of the aentence."* 

The eorreaponding provisioiia of The Hague BegulatlonB. 
— The flrat paragraph of thia proclamation covera the aame 
ground aa the first two dauaea of Article I of The Hague 
Regulationa. These are: 

"The laws, righta, and dutiea of war apply, not only to 
the army, but also to militia and to eorpa of volunteera, 
which aatisfly the following requirements: 

"1. That of being commanded by a person responsible 
for his subordinates; 

"2. That of having a distinctive mark, fixed and reeog^ 
nisable at a distance." 

The Oerman proclamation went further than The Hague 
Regulationa would allow..— Aa tested by this later standard, 
the German proclamation certainly demanded too mudL 
In accordance with the theory that fighting should be con- 
fined to the authorized forces of the two belligerents; it 
required the authorization of the FVench Government and 
a can to aervice from it addressed to the individual him- 



91 TBM nAXOOf^OEMMMM WJklL 

■dl Simflar requifcnueiits were propoied at the 
iDonf erence in 1874, bot there the iigiisttce of saeh reqniv^ 
ments in a seetion ef the eonntry eat off from the eentnl 
aothoritiee was pointed out* and the requirement of eom- 
mand by a person responsible for his saberdinates was 
adopted instead, Saeh person need not be a militaiy oiiU 
eer, bnt may be apy one, who^ throngfa official pontion or 
inflnenee in the eommmiityy can be effeetiydy hdd to ao- 
count for the misdeeds of those nndcr him. 

The main point ef eo nUwsty as to the fraaes^irmis 
on of foot— As to the uniforms of the firancs-tneors, Bis- 
msrck claimed that the Una bloose they wore waa the 
national costnme and that the red cross on the srm waa 
only discernible at a short distanee, and eoold be instsnfly 
taken off and replaced, ao that it became impossible for 
the Prossian troopo to distingoish combatants from non- 
combatants. The French authorities denied that apy soeh 
confusion could in good fdth arise^* so that we haye on 
this point a square issue of fset which it is imposrible 
for us to decide. If Bismarck^ daim waa correct, the 
Germans wei^ justified in maqy of the sererer measures 
they took later in the war, while, if the contention of the 
FVench authorities waa eonreet^ they were not The prolN 
abilities are that the organisation of the firanes-tirears waa 
one of those measures ''in the twilight aone'* between what 
waa permissible and what waa not pemussible^ and so 
led to the inevitable controversies and bitterness which sU 
such measures produce. Except in the utmost straitB they 
should never be resorted to. The requirement that the 
soldier should be distinguishable as such by the naked eye 
at rifle shot woidd not be recognised today. Am HsU says^ 
with our modem guns, it would require not only a unifonn 
but a conspicuous one.* 

The Gemuins apparently did not resort to flelilioas oo- 
onpation^It hss sometimes been said that the Genimns 
resorted to fictitious oeciqiation; that they daimed the a»- 
thori^ of the occupuft where th^ had not the foree to 
support it; and that the Brussels Dedsration waa a con- 
demnation of their action. None of these seiei tiuiis esn 
be shown to be wcQ founded. It is true that ocenpatioa 



at Han* latifiMitloBri lawt 



VLTIirO GOUTXNt. 9S 

ertftblished by fiTmg eolnmns, and that ona ecnild fo 
for milei within oeenpied territoiy without aeeing a ain^a 
PtaHian aoldier, bat tha teat of effeetiTa oeeapation k tlia 
ability to aappren insurrection and not tha vinbla praa* 
anea of tha oeeapant averywhera within tha oeenpied tai^ 
litoiy. Sab jaeted to this teat, tha Oerman oeeiqiaUon waa 
not* at any rata, shown to be ineffaetiva, aa no sneeeBaM 
npriaings oeeorred. 

Thair aoadnet in this regard was not aondamnad by Am 
Brussels Oanf arsnoa.— Nor did the Bmssels Gonf erenoe eon- 
damn tha Oennan aetion. It ia probably tha eaaa that 
tha poaition that General Yoigta-Rhets, tha GannaB rapra- 
aentatira at that Conf eranea^ took, waa in line with tha 
German aetion daring tha war, bat it ia a nustaka ta anp- 
poaa that ha eontended that oeeapation need not be aC- 
feetiTa. Ha waa aa thoroai^ily in accord with tha artiela 
of tha Declaration reqairing oeeapation to be aif aetiye aa 
were tha other delegates. What he objeeted to waa tha 
attempt to treat military oeeapation aa analogoas to block- 
ade, and in thia he waa apparently rii^t.*^ 

Tha Oannaiis did go too ftr, bowarar, in repairing tha 
aaopantton of tha inhaUtanta in tha pravantioin of sock 
aeta aa tha escape of persons intending to Join tha Ikanah 
amiy firom tha ooen^ad tarrttQcyw— It ia entirely impar 
to reqaira the cooperation of tha inhabitanta nnd loeal 
anthoritiea of oceapied territory in the snppresnon of acts 
of lawlessness, area thoagh each acts be committed with 
patriotie intent. It is also proper for the occnpaut to take 
. measares to prevent the enemy from deriving anqnport from 
the oeenpied territory, either in supplies or man. Bat it • 
ia not proper for the oeeapant to reqoire the eooperation 
of theinhabitanta in this latter case aa in tha former. Acta 
of lawlessness are directed against society itsell^ and it 
ia even more to the interest of the inhabitanta than to that 
of the oeeapant that th^ shonld be sappressad, while acts 
sach aa quitting the oeenpied territory to join the national 
army, do not affect society, are prompted by the hifljiest 
motives, and are prohibited only becanse they are inimical 
to the interests of the oeeapant. To reqnire the eooperation 
of the inhabitanta in the anppression of sneh acts would 
do violeace to every feeling of patriotism. Aceordini^, 

uBMl^lKp. IOC 



M THB raAJrOO-QJOUCAV WJJL 

reqa i F M nenti siieh as were made 1^ the Germana, that 
mayors ahovld fnmiah liata of perMiia liaUe to aerve in 
the Rreneh army, ao that thoae joining might be ynniahed," 
went b^ond the proper bonnda of the oeenpant'a anthority. 

The bmndag of hooaea or Tfflagea aa a penal meaaoxe k 
"^ to be generally eondemned^— Hnch ecnaplaint waa eanaed 
dnring the war by t^e frequency with whieh itkt bnming 
of liooaea and even of whole villagea waa reaorted to. Am 
pnniahment for the moat aevere offenaea, it ia poeaible that 
aneh bnming may aometimea be jnatified, bnt, if there ia 
one leaaon tani^t by the IVanco-Oerman war and the Sonth 
African war alike, it ia that anch a practice^ instead of 
curing evila, makea them tenfold more Timlenl Driven 
to deaperation by the loaa of all th«y poaaen, they who 
Boffer become apoatlea of revenge and put new life in a 
atmgi^e i|i which th^ have now no more to loae. Once 
entered upon, the policy of bnming beoomea ao ea^ and 
the exaaperatioDa that prompt it become ao multiplied, that 
until the end of the war outrage and violence are inevitable. 

The plaeing of notaUea on tralna to proteot the tralna 
/ fhn hoatDttiaa^— Another measure which haa called forth 
much criticiam waa the uae made by the Germana of notable 
dtiaena on railroad traina in order to protect them from 
acta of hoatility. It haa been claimed on analogy to the 
caae of hoatagea, againat whom violence cannot be uaed, 
that thia waa improper; but the caae ia quite different. The 
pumahment of hoatagea would be a punitive meaaure while 
the uae of dtiieua in thia way waa a preventative meaaure 
and a moat effective one. Granted that the acta againat the 
railroada were unlawful, the meaaure woidd not aeem to 
have been an unduly harah one. But there lay the difll- 
eulty. Such acta were not unlawful when committeil by 
the regular foreea, ao that if the firanca-tireura were to be 
conaidered aa regiilar foreea, the meaaure waa an improper 
one, and it waa againat them primarily that it waa aimed. 
Like ao many other queationa of the war, U turned, on 
whether or not the franca-tireura were entitled to the qual- 
ity of adldien. 

ThepnnrUon in tte Oemian IDUtaiy Penal Code aa to 
the ne ci Ba dily of triahk— The Germana themadvea rendered 
impoaaiUe the repetition by their oflleera of such ordera 

uAtMvm DiploMiifM^ IV. isoi. 



as that of Aagnst 31, 1870, in whieh the eommanding sen- 
era! dadmred that frmncs-tireius and other individiiala eom- 
mittiiig flagrant aeta of hoatility ahonld be hung or shot 
without proeeaa,** by the German MUitary Penal Code of 
1872, whieh provided that, for the infliction of all penalttea 
provided for by the Code, a judicial proceeding ahoold be 



Beredtj agalaal persona altempling to Join Uia 
annjir— Perhapa the moat aevere decree the Germana ia- 
aned waa that declaring that inhabitanta of Alaace and 
Lorraine joining the IVench army ahoold aoffer the eon> 
flacation of their gooda and ten yeara' baniahment, and 
that abaence from home for eight days without permianoa 
ahoold be condnaiye aa to enrollment. Thia decree waa 
pnbliahed late in the war. It waa condemned aa ezceanve 
by the able German writer, Loening, who aaya that only 
five condemnationa were enforced nndeif it" Bolin Ja^ 
qnemyna critidaea the decree, flrst, on the ground of the 
general odiouancaa of eonflacation, and aecond, on the 
ground that it rendered liable to puniahment thoae who had 
aueeeeded in making their escape firom the occupied ter* 
ritory and had thus wiped out theiroffense by ijs suecesa- 
ful consummation on the analogy to spying and blockads 
running." Both criticisms appear to be sound.^' 

Treatment of persons residing in the territory of Am op- 
posing baOigersnl al the outbresk of war^-At the bepn- 
ning of the war each government manifested a general 
intention to allow the subjects of the other, residing in fts 
tcrritc«y, to remain during good behavior. Hessures were 
even taken in France to prevent the withdrawal of Getw 
mana liable to active military aervice. The f eelihg againat 
German apiea, however, aoon ran ao hii^ that Anally, on 
very abort notice, all the Germane in the Department e( 
the Seine were required to leave France or to retire aonth 
of the Loire." The act waa one very much to be dqplored, 
but it waa not altogether unnatural under the drcum- 



u Aiddvw DiplomtifaM, IT, 1108. 
MBcfTM dm Droit latorMtloMl, V, aS-Si. 
MKcTot d« Dntt latonstloMl, V, ai^ «l «#. 
MKcTot d« Dntt htorMtloMl, m, p. SIC^ «l wff. 

tfSMiiifpe, p. sat. 

i«Aiddvw DiploMtSqn% 11, UL 



THS raANCXhOJOUCAV WJJL 

of btnomditi.— The quMtkm of baHoonfati 
gaye rise to mach eoDtrover^. Bimuurek threatened to 
treat them as spies, on aeeoont of the intelligenee thej 
were able to obtain, bat he does not appea r to haTO ear- 
ned his threats into ezeention. H XZEC does not spe- 
eiileally eover the ease of baUoonists sent to obtain infor- 
mation, hot by making the obtaining of information within 
the lines of the enemy uerMf, the gist of spying it makes 
Bismarck's position no longer tenabla. 

Use of reqidsilkiis and oo n tr ttnl hwa.— In providing for 
the amqr the Oermana made ezteosiTe nse <tf reqpiisitions 
and eontribntions. Fdrand-Oirand sites a report to the 
fVeneh Minister of Foreign Affairs in whieh it is stated 
that war contributions levied by the Germans amounted 
to 89,000,000 francs, the taxes coUeeted by them to 48,000^ 
000, and the requisitions to 827,000,000l>* 

Nor did this take into eonnderation^the eontribution of 
200,000,000 firancs charged to the ei^ of Paris in the 
armistice of January 28.^ The levying of these contribu- 
tions and requisitions raised a great outeiy in Kn^jjland, 
but the general principle involved in them has been ap- 
proved by The Hague Conferences. It could never have 
been atacked, save through the inadmissible theory that' 
inivate dtisens are not to bear any of the direct burdena 
of war. 

fteatmsnt of Rranoli f oirests^-The treatment of the 
FVench forests by the German authorities has often been 
condemned, but, as it would appear, unjustly* The 
unfavorable opinion has been based on a decimon in 
which the Court of Cassation emmeiated the broad, gen* 
oral doctrine that large tress which nature and legidation 
had assimilsted to the domain itsdf should not be cut by 
the occupant"^ This was the position taken by the Aus- 
trian delegate at Brussda, but his contention that the large 
trees should not be cut at all was overroled,** and the work 
of the Brussds Conference in this respect waa ratified at 
The Hague. The occupant now has the rii^ts of a umi- 

i»nn«A-Ofam«d, Beeoan i BaiMa Am Jhmaamgm Oivite pw hi 
Qmn% 8m. 9L 



«PMllMOllt«f the 




SXPLOITATION OW FBEKCH I0UBRI. 97 



frnctiiaiy, and may eat Biieh of the large trees as are naiked 
for the purpose 1^ the regolar aatlioritieB; or, where that 
b impoasiblep he may follow any roles of good forest m^ 
muiistratioD. 

The Oennaa OavemmeBt did not snhssq:asiit|j admit thai 
it had gone beyond its rights in the treatment of the Fieuuh 
f orests^-It has smnetimes been soggested that the Oennan 
anthorities afterwards admitted that th«y had gone beyond 
their rii^tSy beeanse th^ did not inti^ere to seeore to 
the eontraetors wood whieh, thoo|^ eat daring the oeen- 
pation, had not been earned away at its termination. Bat 
the grband of their aetion OTidently was that the oeeapant 
is a de faeio aothority ; that he has the right to appropriate 
some fcnrms of pablie property^ bat has not the title thereto; 
and that, if his appropriation is not eomplete at the 
nation of the oeeapation, all his right to the property 
eeases. Of eoarse, if the oeeapant himsdf has no ri^ to 
eomplete the appropriation of property after oeeopation 
is over, he ean give no saeh ri^fiit to a third party. BbB- 
eeatory eontraets for the exploitation of the pablie domain 
mast, therefore^ eease to be operatiTO with the oeeapation 
UseU. 

The weight of aalhorily shows Oat tte Cknnaas aeted 
within their rights.— As the opinion advene to the aetion 
of the Germans has been almost wholly based on the d^ 
eidon of the Rreneh eoort, the invalidating of the prin- 
dple of that decision by the sabseqaent aetion at 
and The Hagae leaves practically no anthori^ for 
opinion. On the other hand. Loaning and Blnntsehli,^ 
both of whom, althoagh Germans, were firee in their criti- 
cism of Gennan condact, conmder that the aetion of the 
Germans in the management of the Fmeh forests waa a 
model of what the forest administration of an oeeapant 
shonld be. Loening was a professor at the Univernty of 
Strasbarg, and so had exceptional means of knowing the 
troth. He said that he had aothentie infbrmation that 
the namber of matare trees eat hj the Germans waa not 
greater than the Rrench had planned to eat themsdvei^ 
althoogh th^ were not in all cases the same^** 

Treatment of prtfate property at sea.— Euly in the war 

eiBhmladli, Lb Drott Isteraationl ObSIBI^ Bmu MIL 
MBcfma da Droit IstnMilkMl, V. lOL 

7 , • 



the Oermaiw umoimeed their intention to reipeet priTite 
property at sefty bat there the French were the more pow- 
erful and th^ refoied to reciprocate. On their making 
the captains of certain merchant ships prisoneriy the Gei^ 
man avthorities resorted to reprissls snd seised prominent 
dtisens of different towns as hostages. This action of the 
Qennan anthorities was improper, ss the legslity of the 
IVench action is nnqnestionable.** The organintaon of a 
Tolmiteer navy by Pmssia gave rise to the <|aestion ss to 
jnst what was meant in the Declaration of Paris hj the 
abolition of privateering. That qnestion is now the sub- 
ject of a ConTcntion drawn np at the Second Peace Con> 
-ferenee.** 

Xrealmenl of prisonsn of war^-Althongh there were 
occasionsl charges of the ill-treatment of prisoners of 
war, the care taken of them on both sides wss Tcry com- 
mendable. In Germany postal cards were distribnted to 
the soldiers, a bnrean of information was established to 
give information as to officers, and lists of prisoners wwe 
prepared, by order of fhc Minister of War. In addition 
private committees saw to the distribotion of resding ma^ 
ter, and established a bnrean for the forwarding of letters 
to the sick and wounded, and for furnishing information 
. about them to their friends and rdatives.* 

Administration of ooenpied terrttosy^— Eaiiy In the war 
t the Germans established seats of government for Alssce 

I St Strssburg and for Lorraine at Nancy. Then a third 

{ government wss established at Yerssilles and finsQy In 

December a fourth at Rheims." Over each division 
placed a military governor-general with a dvil 
doner ss associate.^ The munidpalities in general 
tinned their fonetions during the war, but tlM employees 
of other services generally refused to serve under th^ en- 
emy, so that in tiie Railroad and Postoffice Departments 
the Germans had to take the whole administration of af- 
^ bars on thdr own shoulders, and in levying taxes could 

I only roughly approximate what the amount of the taxes 

MBoUft^acqMiiqrM Bcvm de Didt iBtenatioMl, m, SSI 

m8m ktfnLt pt. 2IS. 

tf BoUft^acqMBTBi, Bcvm de Didt latw a tk—l, n (WOK 9^ 

t »nx.au«sL 



I 



M 

would lutTe been. After the &11 of Napoteoa III tlie Qet- 
mangy in their desire to avoid reeognition of tlie providoiial 
goyemment in IVanee, refneed to permit the eourto to dis* 
charge their fonetioni except in the name of the Emperor, 
with the retolt that moat of the conrts declined to met; 
for, being required by law to ezerdae thdr powen in tlio 
name of the soTcreign, th^ felt that Nap^eon III was 
no longer to be considered as holding that place.** It is 
much to be regretted that the German anthinrities did not 
deviM some means of enabling the conrts to act in eoB> 
formity with their sense of legal obligation, withoot ap- 
pearing on their own part to recognise the promioiial 



»Bnj, Lt Brail, eta, p. Sll« «l m§. 



r, 



100 TBM OQDIflOASIOH OV THE LAW QV WAI. 



GEEAFTEBX. 
Tsim ooDinoATiov or thx law ov wai. 

TIm ttgaidnlim of tlio Instttiito of IntanialiflBal Iaw. 
—Not long aftor peace between IVance and Oermanj bad 
been declared. Dr. Lieber, in a letter to BolinJaeqaemjna, 
founder and editor-in-ehief of the Berne de Droit Inter* 
national, Buggeated the organiiation of an institution wbieb' 
ibonld indnde among its members the leading exponents 
of International Law. Abont the same time Onstave Mbyn- 
icr and Blnntsehli made similar recommendations. Bolin- 
Jae^nemyns acted on the suggestion, and in March, 1878, 
sent invitations to representatire jurists. In September 
eleven of these met at Qhent and founded the bistitute of 
International Law. U. K de Lavdegre, in a memoir which 
he wrote on the occasion, dedared the object of the In- 
stitute to be the coUectiye sdentifie investigation of tho 
mles of justice which should seem to the memben to bo 
the rightful base of the rdations of peoide to people.^ 

Tho Institute csnnot have a sesdon ottener thiui ones 
a jesr, nor can the intervd between sessions bo more than 
two years. At each aesdon the Institute dedgnates the 
place and time of the next It is composed of members, 
associates snd honorary members, the members not eic- 
ceeding sixty and being chosen by the Institnle from among 
the associates.* The first annual meeting waa hdd at 
Geneva in 1874, and meetings have since been hdd at The 
Hague (twice), Zfirich, Paria (twice). Brands (thrice), 
Oxford, Turin, Munidi, Hdddberg, Trsusannft, Hamburg^ 
Geneva, (2ambridge^ Venice, Oopei^iagen, Neudiatd and 
Ghent The office of Preddent haa been hdd hjU.lL 
Mancini, of Bome; Bluntschli, of Hdddberg; de Fsiien, of 
Pkffis; Bdin-Jaequemyns, of Qhent; Bernard, of Oxford, 
Pierantoni, of Bome; von Holsendorft; of Munidi; von 
Bulmerincq, of Heiddberg; Bivier, of Btamds; von Bar^ 



iHdnud. BtaUm is Ikdar. Law, p. SSL 
sABHMii^ Zn, AitIdH H, m, XV of the 



AHm T UM or XHTBBVATIO HAL I.4W. 101 

of OSttiiigeii; Hoynier, of Oenova; Benavlt, of Fmi; WmU 
lake, of Cambridge; Brma, of Turin; Gooa, of Copeidiageiis 
Aner, of The Hagae; Laidy, of Paris; Deaeamp^ of Loo- 
vain; Lord Beay, of London; and Alberie Bolin, of Ghent.* 
Hie next meeting is to be held in Florenee^ in 1908, nndor 
the presidency of Gabba, of Pisa. The indirect inflnoiee of 
snch an association most almost necessarily "be even greater 
than its direct The personal contact of the leaders of inters 
national juristic thought can hardly help being a powerful 
factor in the development of common ideas of ri^ and 

duty- 

first steps towards the Bmsseb Oonf eronoe^— Li liareht 
1874, Count de Houdetot, President of the Society for tho 
Amdioration of the Condition of Prisoners of War, which 
had been formed in Paris, in 1872, communicated with the 
diplomatic representatives of the various countries at Pim» 
requesting that delegates be sent to a Conference to be 
held* in Pferis, in ICsy, 1874, to consider means for allevi- 
ating the condition of |»isoners of war and to prepare the 
way for an official Congress, which should formulate an 
international treaty. He was evidently following the 
course which had led successfully to the Geneva Craven- 
tion.* 

Action of tte Russian Oovemment— Little would prob- 
ably have come of this, aa the Eari of Derby, then British 
Foreign Secretary, had determined not to take apy such 
action on the initiative of a private society," if the Bna- 
sian Gtovemment had not stepped in' and carried on the 
undertaking. Alexander n had already i^en orders that 
a project be drawn up covering practicaUy the entire war 
practice on land, when the French society came fornfard 
with its scheme.* At the suggestion of the Bossian lOnia- 
ter of Foreign Aitkirs, Count de Houdetot consoited to 
the absorption of the project of his society into the greater 
one of the Bussian Emperor, and the movement was there- 
after carried on by the Bussian Government The project 
which the latter submitted was drawn up with great care 
and ability, beginning with a declaration of general prii^ 



• HbDaiil, SladiM, p. 9$, 

«PttL Fkpm, 1874^ IOm^ KoT 1« Pfw 1-<» 17-11. 

■ /»tfL,p.li. 



lot TUS OODinOAXIOV OV THl LAW Of WJJL 

• 

dpl€i and tben proceeding to the etatement of detailed 
ndea. 

Altltiide of tte Brttidi Qo?tniniaii^— It was from Great 
Britain that the least cooperation waa to be expected. The 
lather of the Earl of Derby had been one of the leaden in 
the opposition to the Declaration of FuiSy and, even with- 
oiit this personal equation the criticism to which that 
aieasure had been subjected in Rngland wss calculated to 
make a British official wary of sssenting to taxj limitation 
of belligerent action. Before committing his government, 
Lmrd Derl^ sent a long despatch to Lord Loftos, at St. 
Petenbnrg, in which, while expresnng his sympathy with 
the f edings of hnmanity which had moved his Imperial 
Majesty, he said that the British Government waa not eon- 
vineed of the practical necessity for sach a scheme for the 
goidanee of military c<wmianderB in the field and feared 
that the Conference mi|^t give riao to the discosrion of 
questions which Would lead to recriminations between* the 
delegates. He intimated, however, that the British Gov- 
ernment since it waa desirous of joining in spy measure 
which would prevent unnecessary snfFerin^ woidd not ob- 
ject to the Conference, if there should be no discussion of 
the general principlea as to the rdations between bel- 
ligerents and no attempt to undertake new obligations 
with regard to such general principles.' Lord Derby stated 
that he must require the assurance of every government 
that naval matters would not be discussed.' Such an as- 
surance having been given, Hajor-General Horsford waa 
appointed as a military delegate, Great Britain following 
the example of the German EmpireP in not sending a dip- 
lomatic representation with full powers, but merely a mHi- 
taiy delegate, so that the action of the government should 
in no way be forestalled.* 

Ptactically all Europe waa represented in the Confer- 
ence before the dose of its sessions. The United States 
declined its invitation, as coming too late." The first meet 
ing was held on July 87, and Baron Jondni, the Busrisa 
< 

• IMA.p.SS. 

•IMA, p^ as. 

mFmL FHptn^ mi, K«^ 1^ p^ UL 



nUKBLS OONFEIEKCB OV 1874. lOS 

diplomatie delegate^ and aon of the famous antlior of the 
Art of War, was deeted President^ 

Bides adopted bgr the OoBferenoe.— At his suggestkm it 
waa agreed that only those points should be entered in the 
Protocol on which opinion waa unanimous, and that no 
mention ahould be made of diYergenee of opinion, with 
the reservation that if a ddegate ahould eaqiress a wish 
that some special position should be noted his wish should 
be complied wiUu** This rule was obsenred during the 
earlier discussions, in which only eomparatiYely slight dif- 
ferences of view were exhibited; but, when the more con- 
troverted points came to be discussed, it waa f dt that» aa the 
Conference waa only preparing the way for a future agree- 
ment, it would be best to enter in the Protocols the varioos 
positions advanced so that the govemmenta mii^t be aUe 
to act upon the final Declaration with full knowledge of 
the bearings of the rules laid down.^ It ia- unfortunate 
that this mode of procedure did not prevail fh>m the first, 
aa the discusnons on the later pointa furnish sa invahiaUe 
commentary on the text That it did not waa probably 
due to the feeling that is sometimes manifested against the 
publication of dissenting opinions by Supreme Ckmrt Judges, 
on the ground that th^ detract from the authority of the 
court and of the decision. The departure from the original 
procedure was, however, in one wi^ unf ortunate^ in that 
it furnished to Lord Dcarby's mind indubitable proof that 
applications of principles not generally recognised had been 
introduced into the Dedaration, and thus led the way to 
Great Britain's final refusal to rati^r the acta of the Con- 
ference." Another rule of the Conference waa that the 
proceedings ahould be secret" This was faithfully ob- 
served till within a few daym of the end of the Conf ercnee, 
when a partial garbled account of the proceedings appeared 
in a French newspaper.*' 

The organiiatlon of the Oonf ersnoe^— It waa at first pro- 
posed that two committees should be appointed, one mili- 

uPluL P^a% 187S. Miie. Ka 1, Pntoeol Ka 1 «f th« Fdl 



UIMSL 

MProtoeol 12 ef th« Oommtttati Pntoeol 4 ef tlM Fdl 

uPluL P^a% 187S, Ifioo. Ke. «, pw 4. 

flhid^ Mioe. He. 1, Pntoeol 1 of tlM Fdl Oasfai— os. 

stlWA, Pntoeol a of tko Vtfl Ooiteweo mi^Ui. 



MlliriiaflHiii 



IM XHB OOmflOmOM OV XHB L4W of WA3L 

U17, the other diplomatiey to eonsider in a pfeUminaiy 
waj the qaestione most appropriate to eaeh; bat the difli- 
eoltj of diTiding the work lo as to meet the requirementa 
of soeh a eeheme toon became erident* and it liraa dedded 
to have only one eommitteey eompoeed of one delegate from 
eaeh eonntiy; the military, diplomatic and jnristie members 
of each delegation repladng each other, if desired.'* 
Throo^ioat the Conference the military element greatly pre- 
dominated, althon^ in the consideration of military o^* 
enpation tiie diplomatic element was more largely repre- 
sented than at other times. IL Lansberge, from The Nether- 
lands, and Baron Lambermont, from Belginm,. were the 
only diplomatic delegates who represented their eonntries 
regolarly on the Committee, altilumi^ Baron Jomini had a 
regolar place on it, as chairman. The diplomatic delegates, 
however, by their ability and force of conTietion largely 
OTcrcame the adTantage that the military delegates had 
innomben. 

Bi|^ cf memberSir-The members of tho Conference not 
on the Committee had the right to attend, thoni^ not to 
q>eak or TOte.^ Am tttey mnst have been consolted by the 
aethre members of the ddegations, their infhiimee is not 
to be estimated by the number of times their names ap- 
pear in the Ftotoools. Dr. Blnntscfali, and later FroL Mar^ 
tens, were members of the Conference, and participated in 
the discQssioDs dnring the two days when the project was 
before the whole CoRf^«nee, but th^ were nerer members 
cf the Committee, an^took no active part in its nineteen 
sittings. '«• *" 

The criginal projeet drew a sharp Una between ocb> 
balants and noneosdialants^— The original Bossian project 
had defined certain eonditi(te%^mplianee with which wonld 
entiae persons eii^akii^g I. 1 'Utics to treatment as pris- 
oners of war. It went ftuth . liowerer, and declared that 
persons not satis^Bg Uit! ^v^^nditions should be handed 
%»Ter to military juatice.^^'^^^l^iie first prorision standing by 
itself was, on the wholer.xiot objectionable^ as it merely 
stated aflirmativdy that^^monfl of a certain kind shoold 
be treated as soUUers, without excluding aqyone; but, 

ttPnteoli €f tiM Ftfl OoaflMMa 

wPlul. P^a% m< MiM. Ka 1, PL 11. 



OOVVEIENOB OF 1874. IW 

eoupled "mOt the leeond, it created a hard and fnt ndi^ 
which, if it had heen in force in the past, would have 
handed over to military justice perhaps many of the worid^ 
greatest patriots. The attempt thns to confine war to the 
regolar forces of the hdligerents, though no doaht prompU 
ed bj the highest motives of humanity, aroused the deepest 
opposition on the part of the delegates from Belgium and 
The Netheriands, who declared at the first meeting of the 
Committee that, while th^ wished to diminish as fw as 
possible the calamities of war, th^ could consent to no 
provision having ''a tenden^ either to weaken national 
defense or to detach citixens from their duty towards thdr 
country."*^ This declaration was suhseqfuently supported 
by the ddegates from Spain, Switserland, Portugal and 
Turk^. The British ddegate did not join in it, but, by 
abstaining from the discussion, indicated that in his opinioB 
it concerned questions involving principles not generally 
recognised. 

The Busstan argument in fSaver of this*— The Rusnan dde- 
gates, on the other hand, earnestly urged that the appro> 
hensions of the smaller powers were unfounded. They 
daimed that the project left the rii^t of defense intaet» 
and that its only effect was to make it the duty of caA 
government so to organise its defenders that in time of 
war th^ could be distinguiriied as part of the' regular 
militaiy force and needless recriminations thus avoided. 
At the same time th^ argued that this was not only the 
dntj of governments but also their interest, since it waa 
only organisation that could bring out a peopled full d^ 
f ensive strength.** To the Russian delegates, as wcH as to 
the ddegates of other governments which had adopted the 
practice of conscription, the performance of such a duty 
seemed a slight thing, in view of the increased eflleiency 
it would give to national forces and the irregularities it 
would avoid. To them it meant practically nothing; as 
th^ already had a far more complete organisation than 
the proposed rules would have required; but th^ did not 
redkon with the opposition that anything approa^ing eos^ 
pulsoiy militaiy service would arouse in countriea like 
Great Britain. 

ttP^ri. Vmpm, 1S7S, Ifiw. Na 1 Pratoeol I of tte 
i»Pn«oool4«f th« Vtfl' ' 



HHfa 



106 XHB OO0inCAXIOV OV XHB L4W OV WAB. 

Ab s remit of the diseiisiion the negative provitioiiey e]u 
dndiiig from the eategoiy of beUigerents all penons not 
exhibiting eertain apeeified qnaliiieationa, waa dropped. Aa 
finally drawn np» the Declaration merely enumerated eer- 
tain eonditione under whieh those in arma ahoold be en- 
titled to treatment aa loldiera. These eonditiona were yery 
liberal, and aa it waa expressly understood that they were 
not to be treated aa exdnsiTe, the final Declaration waa 
entirely firee ftom the objeetiona that were urged against 
the original projeet** 

Tteatmani of militazy ooenpalion^— An almost equal in> 
-^ terest waa aroused by the attempta to define occupation 
and to limit requiaitiona and contributiona. Both these 
points are of vital importance: the definition of occupation, 
because on it depends the beginning and termination of the 
tremendous penal powera of the 'military occupant; the 
limitation of contributiona and requisitions^ because th^ 
constitnte the heaviest burden the private citiien haa to 
bear. On one point with regard to occupation the Confer- 
ence waa in entire accord, and that waa that it must be 
effective, that ia, that the occupant must have auch force 
under his control aa to auppress insurrection. The Swiss 
and Swediah ddegatea wiahed to make thia definition more 
tangible by assimilating occupation to blockade, but to 
this the Gonnan delegate^ aa haa been seen,** vigorously ob- 
jected, not on the ground that occupation need not be ef- 
fective^ but on the ground that unlike blockades, occupa- 
tion cannot be everywhere visible and that according 
the analogy between the two ia false.** The objection waa 
apparently well taken. The general principle of the neces- 
sity of effective control being established, it would seem 
best to leave the application of the principle to the govem- 
menta concerned. The aanction of the lawa of war is so 
indefbiite that it ia above all necessary that the rules should 
not be arbitrary or technical, but that th^ ahould be nm- 
ple and reaaonable and thus appeal immediately to the 
minda and willa of the militazy commandera to whom their 
observance ia entrusted. 

Bis final limitation of eontribntloBS and reqnisillQOS to 
/ 

nPfeoloeQl 4 of th« Vtfl 
MBmpm,^9L 
MFkoloeoilQcf tbe 



nu88EL8 oonnBiNCB ov 1874. 107 

Contrilmtioiis and reqniiitioiis were the mbjeet of modi 
debate. It was at fint attempted to limit those whieh the 
army of oeeupation might levy to what the army of the 
eonntiy oceapied would have had the right to demand, or 
to what the occupying army would have had the rii^t to 
demand in its own conntry, but as these limitatbns ap- 
peared to be impracticable ajid to overlook the element of 
militaiy necessity th^ were both dropped.** It was for* 
ther attempted to create a limitation by reqniring the re- 
ceipts given for money or supplies not only to cwtii^ tiie 
fact of the taking but also to promiw indemnity. One ob- 
jection made to this proposal was the likelihood of its giv- 
ing rise to fraud; but the principal objection was that» if 
the receipts should be required to conv^ a pledge of in- 
demnity the successful belligcarent would in the end im^ 
pose the burden of payment on his vanquished antagonist^ 
who would thus be compelled to reimbune some of his 
subjects in full for requisitions and contributions, possibly 
at the cost of other subjects who had suffered loss in other 
wsys and who were equally entitled to indemnity. It waa 
further apprehended that, if an attempt should be made 
to equalise the treatment of the two classes, by a ratable 
diminution of what was due to both, a pretext would be 
afforded to the successful belligerent for interfering between 
the vanquished, and his subjects.** No satisfactory condu- 
sion was come to on this point, and it was left to the un- 
written law of nations. 

The attempt to abdish oontrfbntions^^The attempt waa 
also made to do away with contributions altogether. It 
waa urged that, while supplies might be necessary to the 
support of the army, there was not the same necessity for 
mon^, as the army could take what supplies it needed 
without payment But it was pointed out that a rule by 
which supplies could be taken but not mon^ would work 
greater hardship than it would avoid, by confining levies 
to nearby districts from which supplies could easily be 
transported and by casting on agricultural districts buncos 
which rich dties would often be better able to bear.** 

The final Undtatloin of eonlrfbutlons and requMUoBi to 



y 



BProtoeol IS sat IS ef fht < 

rJML 

iPMocd 10 of the OosnnltlMi see imfm, f, ML 



106 TBI oonanoAZunr of the lam w wab. 



ttb WMHuMm of WHTiT— As m rault of the diseoMioii, it 
was proTinonaUy agreed tliat both eontributioxie and requi- 
attiona might be levied, but that th^ ahonld be limited to 
the neeeaaitiea of the war. By thoae who had been moat 
anxiooa to eheek altogether the abnaea connected with eon* 
tributiona and reqoiaitionay thia limitation waa not thoni^t 
to be Teiy aubatantial, bvt it waa in fact by no meana nn* 
Important^ nnee it rendered illegal eontribntiona levied for 
the porpoae of enriching the occopant, which had been one 
of the graveat abnaea of the Napoleonie ware. 

nrapoaed ravlaiflm of flie Oenevft OonventiML— During the 
eoorae of ita proceedingi with only militaiy' delegatea aa 
memben, the Committee also considered the question in 
iHiat waja the reviaion of the OenevE Convention and of 
aneh of the Additional Artidea aa applied to warfare on 
land waa deain^ile. ^ 

HotaUa moabera of flie Ooof erenoei— The Conference 
waa s aingnlariy able body of men. Among the delegatea, 
however, there atand oat eapecially IL Landaberge, of 
The Nettierlanda; Banm Lambermont, of Belgium; CoL 
Hiammer, of Switaeriand, and Ckneral Yoigta-BhetSi the 
German delegate. The experience of the latter, acquired 
in the Fhmco-Oerman War, made hia viewa eapecially valu- 
able. In no aenae can the Conference be aaid to have con* 
denmed the conduct of that war. On the other hand, ita 
reaulta were valuable largely from the experience gained 



Adverae xepert of flia Britidi delegata«-rlt might have 
been expected that the declaration aa finally drawn vip 
would be acceptable to all the partiea coneemed. It waa 
ao worded that diaputed pointa were left to the unwritten 
law of nationa, and waa ao guarded by reaervationa that 
ita gaina could not be aaid to be counterbalanced by con* 
ceaaiona. The report, however, of the Britiah delegate^ 
Uajor-Qeneral Horaf ord, waa adverae, and it waa alao mia- 
leading. It conveyed an impreaaion of diaagreement aa to 
the final reault which waa by no meana correct, while it ao 
aeriondy miaconatmed the poaitiona taken and the reaulta 
reached by the larger powera on controverted pointa, aa 
to lead to the conelunon that ita author waa ao biaaed 
againat the whole acheme from the beginning aa to be un> 
able to exereiBe towarda it an impartial judgment 



.« " 



oovFBuoroB ov 1874. IM 

Bm Britidi OowmMBl nfOMi to rulOtj thb wock of Ot 
Chnf ertnoo^— In view of this eireumtUnee and of the prch 
▼ioQB uniftTorable attitade of the British OoYemment^ it is 
not surprising that Lord Derby refused to proceed further 
with the work of the Conf erenee. In a despatch of Jan- 
nary 2O9 1875, to Lord Loftus, he said: "It» howoYer, soon 
appeared, when the more important Articles of the Project 
came to be examined and discnssed, that the attitade of 
resenre which Her Majestj^i Ctovemment had hdd towards 
it» and the cantion of the' British delegate were fully justi- 
fied. Instead of mere roles for the guidance of military 
commanders based on usages, upon which a general nndei^ 
standing could be shown to be desirable in the interests of 
humanity, the Articles of the Project were seen to contain, 
or to imply, numerous innovations, for which no practical 
necessity wss proved to exist, and the result of which, if 
adopted, would have been greatly to the advantage of the 
Powers having large armies constantly prepared for war, 
and systems of universal compulsoiy militazy service." 
Lord Derby also declared that the definition of military 
occupation had been adopted to reconcQe opposing views 
and would lead to recrimination, and that the same thing 
was true of the provisions ss to belligerent character and 
as to requisitions and contributions. He further critiraed 
the Declaration becanse the articles on Beprisals had been 
dropped. And in condnsion he said: ''It will have been 
seen from the foregoing ofaeervati<»s that Her Uajesty^ 
Oovemment regard the result of the Bmsseb Conference 
to have been to demonstrate that there is no possibility of 
an agreement npon the reaUy important Axiides of the 
Russian Project; that the interests of the invader and the 
invaded are irreconcilable; and that, even if certain ndes 
of warfare could be framed in terms which would 
with acquiescence, th^ would prove to exercise little : 
than that fictitious restraint deprecated by the Russian Gov^ 
emment at the opening of the Conference.** One cannot 
hdp feeling in reading this despatch that he is reading the 
argument of a man who had made np his mind from the 
very fint." 

The nfij of PHnoe Ckvtdiaoow to Lord Deriqr^—Prinee 
Oortchacow made a lengthy reply. He pointed out that 

MFuL Fiipa% 1S7^ lliM. Ha 1^ pp. t-T. 



110 XHB (XUUnOATIOV Of XHB L4W OF WAB. 

what the Conf erenee had done waa to dedara that a popa* 
lation organiaed in a way falling fiur ahort of eomimlMiy 
militazy Mrriee and obaemng the lawa of war ihoiild he 
treated aa helligerentay and that in no reapeet eonld it be 
■aid that the righta of def enae would be weakened. He 
alio atated that the diseoaiiomi which had ariaen had ihown 
how nneertafai were the lawa of war» and how neeenarj 
waa KHne general agreement npon them.** Thia dcaed the 
official correepondence. That the ob jectiona of Lord DbAj 
were nnf onnded ia ihown by the action of the Oovemment 
headed by Lord Salisbury fai ratifying The K^pIe Conven* 
tion, containing moat of the prorinomi which Lord Derby 
had 10 iererely condemned. 

Ihe bftitiite of InlematioBal Law anFOfea the week e( 
the OoBf erenee^— At the Oeneva meeting of the Lutitnte 
of International Law, in 1874, a committee waa appointed 
to itndy the reeolta of the Bnunehi Conference. BolinJae- 
qnemyniy acting aa aecretaiy to the committee, drew vip 
a long Ikt of qncitioiia concerning the Declaration, and 
the answera which he received and hia own report make 
an intereating commentary on the project*^ William Beach. 
Lawrence had already qncationed tiie propriety of deny- 
ing to belligerenta the choice of any meana which might 
enable them to ahorten waia.** Travera Twin doubted the 
wisdom id codification, lest it might atereotype the law;** 
while Monntagne Bernard, althongh he admiUed the Talne 
of the recorded discossioDi of the conference, eonrfdered 
the acceptance of the Declaration undesirable. He admit- 
ted, however, that some of its provisions might profitably 
be embodied in a code of instructions drawn up by pai^ 
ticular coontriea for the use of their armica.** With these 
exceptions, sU the members of the committee whose opfai- 
ions BolinJaequemyna gathered, were agreed in hailing 
the Declaration aa an advanced embodiment of enlightened 
public sentiment** Aceordini^, the Institute passed rcM^ 
Intions approving it and CTpressing the wish that govem- 

MPhri. F^pm^ 187m Miae. Ka S, ppw S-O. 

, lUvas ds BMit late. Vn (1S7S). fp. ST-lIU 



••ntf,ff.8M-Btt^p.4Sil 

MlM;p.4SL 

••IK*, fp. 407, SOL 



r 



ooxRUoroB Of 1874. Hi 

meiiti generally might ineorponte iti rnlet in the inetroe- 
tione for their armiei. The Lutitate also approved the 
propoaition of Oeneral Amandeaa, one of the VnmHk dde- 
gateiy in favor of an agreement between the powen for 
the pnrpoae of eatabUahing nnif ormity in the penal eodei 
naed in war, aa well aa the propoaition of the Italian dde- 
gatea. Baron Blane and Colonel Count Lena, in favor of 
a aimOar agreement for the unification of the mlea of in- 
tereonrae between tho belligerenta. finally it expreeaed 
ita approval of the propoaal of Colond Bmn, one of the 
Daniah delegatea that ''after a eonteBt, the belligerenta are 
hdd to eommnnicate to the advene par^ the liat of dead 
fallen into their power. To render thia eaaier it will be 
deairable that eaeh aoldier be famished with a mark in> 
dicating hia number (hia name), the number of hia rep> 
ment and that of hia company/*'* 

The approval rieUy deaerved^— The ^iproval given Ij 
the Xnatitute to the work of the Conference waa richly d^ 
aerved. It had been feared that the predominance ^ the 
militazy element among the membera would result in re- 
•trogrenion rather than advaneemenf Exactly the oppo- 
aite actually happened. The practical knowledge of the 
eonditiona of wuf^re which the military men possessed 
enabled them to deal at first hand with questiona which 
men of other training would have had to resort to treatises 
on International Law to decide. Depending aolely on bodk% 
th^ would have been almoat certain to allow undue w«ght 
to tiie precedenta of a bygone age or the generalixatioda of 
scientific writers, so that their work would have fsllen 
short of the spirit of the age or have embodied principles 
which did not truly incorporate the experience of the past 

The moral tone of flie Ooof erenoe waa Uglu-Aa it waa, 
the delegatea, while not loaing aight of militaiy necessity, 
showed that th^ had imUbed the humane spirit of the age 
and that th^ had a full appreciation of the power for 
good or evil which th^ held in their hands. Thefar pro- 
posala were dear cut and practical, and the questions were 
argued with great ability and witii consideration for tiie 
feelings of other ddegatea. 

S is f orinnale «iai tiie Dedanltai of ttia ( 

wiNi, PL tL 



lit TSm OOmFlOAXlOV Of TBE L4W OF WAB. 

10 laig^f llio WQKk or mflitaiy ]iiiB^--Riia]^ 
that the Dedaration waa so largdj the work of militazy 
men. Thia eireiiiDstanee haa tended to add to ita authority 
aa a pnetieal meaanre, aa well aa to the attthority of The 
Hague Begolationiy which are bated on it The neeeHitka 
of war are capable of aach a liberal eonatmetion that the 
Begolatione would be of little use in amdiorating belliger- 
ent praetieea in \he handa of men antagoniatic to it; and 
aneh a feeling of antageninn might well have existed among 
militaiy men had the declaration beat drawn for them 1^ 
men <tf other training whom th^ bdieved to be unao- 
qoainted with the eonditiona for which th^ were legialat- 
ing. The danger of hoctilitgr to The Hague Begolationi is 
therefore now avoided bj tiie fket that militazy men had 
■o large a ihare in thdr creation. That military men on 
that occaaion allowed themsdves so thoroughly imbued with 
the humanitarian apirit of the age is eyidence that they 
may in the future be entruated with the leading part in the 
development of the lawa of war that th^ have had in the 



The Buno-Tnrlddi War of 1877^—During the 
Turkish War of 1877 the Bunian Government endeavored^ 
by the publication and diatribution of a lort of military 
eateehiemy to acquaint its soldiera with the lawa of war; 
and it ako inued a most humane regulation for the treat- 
ment of prisoners of war.** The Turkish Government took 
nosuchatepa. Only on the representation of neutral poweia 
waa a tranalation made of the Ckneva Convention into 
TuAidL Late in 1876 the Turkish Government had found 
that the Bed Cross violated the ansceptibiUties of Moham- 
It aocordini^ made known to the Swiss Ctovem- 
its intention to substitute the Bed Crescent for the 
Bed Cross. After some negotiationa between the aignatoriM 
of the Ckneva Convention it was suggested by the German 
Government that the substitution be agreed to aa a suMtat 
vwemdi for the war. Both partiea agreed to thii» Bosna% 
consent being conditioned on the promise of Turkey to 
Instruct her troops to respect the Bed Cross.** 

Nevertheless^ numerous complainta aroae, and mutual re- 
criminationa added to the diflteulty of aacertaining the faeliL 

MHolbBd, SfciidiM hi late. Law, ppw SO. 104. 
••Itedlar W^dm% Srott latv. PiAli^ VI|» yp. 



lUVUAL OV OOLVOUL ' 111 



That thb irregolAr troops of the Tiirh% mieh as the BaaU- 
Baaowfca and Kurda, contumaDy wwnmitteii oatragea, and 
that priaonera were aubjeeted by the Tnrka to ala m ^ t er 
and mntilation can, however, aearedy be qaeationed.^ 

Bm Manual of Oif ord.— At the meetintf of 1875 the b- 
atitnte of International Law» aa we have aeen, paaaed iom^ 
Intiona reoommending that govemmenta inatmet thdr ai^ 
miea in the rolea of International Law.^ In order to aa- 
eertain what waa being done in that direetiony the 8eere> 
tary-Oeneral, Bolin-Jaeqneniyna, in hit annual report of 
1878, aoggeated a atody of the different eodea which Tariooa 
eonntriea had adopted for their armiea. The reaolt waa a 
report bj Onatave Moynier, and aa eomparatively little waa 
found to have been done it waa agreed that he ahonld draft 
a code, or manual, to be propoaed to the varioua gOYem- 
menta. Oreat care waa taken that the completed work 
ahould fairly repr es e n t the opinion of the Inatttute. To 
aecure thia copiea of the firat draft were aent to all the 
members. Criticiama of all kinda poured in. A aecoiid 
dnft waa made and anbmitted to a committee, which aat 
for aeveral daya at Dr. Bluntaehli'a home, in HddellMrg. 
Early in September, 1880, the final draft waa made, and it 
waa accepted by the Inatitute at Oxford aoon afterwarda. 
Copiea of the manual were then aent to the Tariooa gov 
menta, with a letter repreaenting it to b^ the dnty of 
government to isaue aome auch inatmctiona to ita troopa. 
The proviaiona of the new code followed Tcry eloady theM 
of the Declaration of Bruasda. The aubjeet of Bepriaala, 
however, ia briefly included. The anbatance of the manual 
ia in moat caaea the aame aa that of the Dedaratioin of 
Bruaada, but the form ia quite different. The general ar- 
rangement ia different, and the proviaiona are ao worded, 
with explanatory paaaagea in amaU type between, aa to 
render them cai^ of comprehenaion 1^ the aoldier. The 
work waa ably done^ but the direct reaulta were not so 
great aa were hoped for. 

* Cka 1 eip onden ce between Dr* Bbmtadill and Oousl vob 
Holtke following the puUieatioa of flie Manual of OxtoHL 
— An intereating correapondence followed the pnblieatian 

^MiL, ^ lea. 

«Thi* Meonat cf ttt cMnpflstka ef fht 
HoDMid, Atfv |L ait «* «f> 
8 



114 TBE OOmilOATIOM OF XHB L4W Of WAB. 

of the Manual between Dr. BlnntaeUi and Coont iron 
Moltke, to whom he aent a eopgr. In the eoone of hia oh> 
aenratione Coont Ton Moltke laidt 

"In the iint i^aee, I appreciate foDy the phflanthropie 
efforta made to lenen the evih incident to war. Perpetoal 
peace ia a dream, and not even a good dream. War ia an 
dement of the worid'a order estaUiahed Iff Ood. The 
nobleat virtnea of man are developed there: courage and 
adf-effacemeni; the fideli^ to dntgr and the apirit of aae> 
riilce; the addier givei hia life. Without war the world 
would atagnate and loae itself in materialiam. 

''I am further abaolutdy in accord with the propoaition 
announced in the introduction; that the gradual i^f^^ing 
of manncra ought to be reflected in the manner of making 
war. But I go further and I believe that the loftening of 
manncra alone can lead to that end, which would not be 
attained by meana of a codification of the law of war. All 
law auppoaca an authority to watch over and execute it, 
and it ia thia power that ia lacking in the obewation of 
international agreementa. What third powers will ever 
take arma for the aole motive, that, two powcra being at 
war, the lawa of war have been violated by one or both 
of themt For thia kind of infractions there is no judge 
here below. Success can come only of the rdigioua and 
moral education of individuals, of the sentiment of honor 
and of the aense of justice of the chiefs, who impose on 
themadTcs the law and conform thereto aa fkr aa the ab- 
normal conditiona of war allow. 

''Thia bemg ao^ it ia also necessary to recognise that the 
pro gress of humanity in making war haa r^Jly followed 
the general softening of manncra. Only compare the her- 
rora of the Thirty Teara* War with the atrugi^ of mod- 
em timea I 

''A great atep haa been made in our day by the estab- 
lishment of compulsory military aervice, which compda 
the educated dasscs to enter the army. The grosa and 
violent dementa without doubt alwaya make a part, but 
they are not the only dementa aa f ormetly. - 

''Bendes, governments possess two powerfol meana to 
prevent the worst excesses; rigorous discipline, maintained 
in time of peace and of which the soldier haa gotten the 
habit, and the vigilance pf administration which providea 
for the aubaktenee of the troopa in the fisUL 



fov MOura <m wab. lift 



«fi 



'The greatest benefit in wer is that H be termlnatedf 
promptly. It on^t to be permitted in view of this end,' 
to nae all meana, aave those whieh are positively eondemn- 
able. I by no means agree with the Declaration of St 
Petersbnrgy when it pretends that the enfeebling of the 
military f orees of the enemy eonstitates the only legitimate 
mode of proceeding in war. No, it is necessary to attaA 1 
all the resources of the enemy's govemmenty his finances, I. 
his railroads, his provisions, his prestige. • • • ') 

''I believe that in war, where all most be considered indi- 
vidnaDy, the only articles which will prove to be cfllcaeioaB . 
are those which address themselves essentially to the ehiefik 
Snch are the prescriptions of the mannal cmieeming the \ 
wounded, the sick, the physicians and the sanitary mat»> 
riaL The general recognition of these principles, aa of 
those which concern innsoners, will constitute in itedf an .' 
essential p ro g r e s s towards the end which the Ihstitate of i 
International Law pursues with ao honorable a p e i a e ? eg" J 
ance.'** -'^ 

Whotosome effeol of Oonnt von BUttke's liilar^—Then 
is much in this, letter that will not be generally accepted, 
but Count von Moltke stated ao clearly and forcibly the 
most important forces which make for the betterment of 
the conditions of warfare that hia letter has been exten- 
sively quoted. Its effect was not so much to make qae^ 
tionable the advantage of written agreements aa to ^eas- 
phasise the fkr* greater importance of other thin0L' The 
exaggerated importance aometimes aacribed to international 
agreements by international jurists today is the exeuae for 
what he said. 

Ihe adoption e( manuals by various gofwunants^— Ik 
his report to the Institute of International Law, aa haa 
been obeerved, Moynier found that little had been dona 
by the various governments for the instruction of their 
troops. He found, however, that the Dutch and FreaA 
Oovemments had adopted unofiicial manuals for use in the 
schools for the instruction of oflicers; that the German 
Government, even aa early aa 1870, had issued confidential 
instructions aa to conduct in warfare to its oflleera; that 
a draft of such rules had been drawn up for the Swisa Goi^ 
emment, and that other governments had had the aul^jed 

«i]UvM dt Dicit IMv, Zm, yp. 



116 THK OOOmOAXlOM Of THI L4W Of WAB. 

under diienBnoiL The best known of the mannftli b the 
neneh^ the iint edition of which appeared in 1877, and 
whieh ia a very able work. Other mannali that may be 
noticed are that of the Servian Oovemment, iwoed in 1878^ 
that of the Spanish Ctovemment, issued in I8989 which was 
founded mainlj on the work of a congress of officers rep- 
resenting the armies of Spain, Portugal and the Tarioos 
Latin sUtes of 'South and Central America, held in Ifadrid, 
in 1892,^ and finally that issued by the British war office, 
in 1903, consisting of The Hague Regulations of 1889, with 
supplementary matter and notes by Professor Holland. 

HotaUe axmy regulations.— Notable army regulations are 
those of Spain approved by a law of January 5, 1882; of 
Italy, of September 16, 1896; of Switserland, of March 31, 
190i; of Bussia, of June 14-27, 1904; and of Portugal and 
Odumbia.^ 

The puhlkatlan of the Oermaa staffs— The Ckrman staff 
published a work in 1902 entitled Kriegribauch im Land 
Kriege — the laws of war on land. It is one of a series of 
monographs, which the staff considers of 'the first import- 
snee, intended to make the Oerman officers profit by the 
recent wars.^ Its historical character is possibly responsi- 
ble for its partisan references to the Franco-Ckrman War 
which detract from its scitatific value, but it is a work of 
great ability, is dear and weU thought out and of great 
^[nraetical value. It is largely bssed on the work of Lueder, 
and through him on the Brussels Project of* Declaration and 
■0 unfortunately lays less stress on The Hague Begolations 
than the international character of the latter would cell 
for. 

MHoIlud, StediM hi Intanatkgul Wsr, pp. SS-OT. 
^MrriShiMW, Lm Lob dt la Ontrra OmCiiMBlftk Snivaat to 
XliMfAjiv Allcnaai 14 B. a IX L P, fb 198. 



*VlB8UfTlUSA8TAN1>im& 117 



CHAPTER XL 

W1B8 Ur THS EAST AHD 

PtogiMi ihowii bgr Japan in tfaa GUno-JapaiMfa War^— 
The Chines^Japanese War was noteworthy for the jirogroai 
Japan was shown to have made in the observanee of oeei- 
dental standards in the eondnet of warfare, and for the 
hii^ tone which she took in obsenring those standards 
against an enemy whieh failed to recognise their binding 
force. One of the first qnestions that confronted her waa 
the treatment of Chinese resident in Japan. By a decree 
of August 4, 1894,^ she sllowed those who wished to remain 
to do so during good bdiavior on condition of registering 
within twenty days. Mr. Ariga, in his able work entitled 
La Onerre Sino-Japonaise, says that about half the Chinese 
resident in Yokohama and Kobe took adyantage of this 
act Registered Chinese were to continue in their employ* 
mentSy including commercial intereourM with China. As 
an incident to this continued right of residence and of com* 
merce, the Japanese courts remained open to the Chinese 
who remained.* 

Oare in restricting hostilitlss to the r^gnlsr combatants^— 
Oreat care was taken that those not entitled to combatant 
privileges should not engage in hostilities. It wss feared 
that the volunteers who offered themsdves at the beginning 
of the war might not live up to the high standard wliich 
the Empire had set for itself, and their services therefore 
were refused.* 

Afterwards, on the invasion of Chinese territory, it waa 
found that the coolies, contract laborers attached to the 
army, were committing depredations, shd ss a consequence 
their arms were taken from them. As a result, ten dsys 
later, a large number of them were killed while transport- 
ing provisions for the army. Notwithstanding this, the 
order forbidding them to bear arms was not withdrawn.* 



t Ariss, Lb GiMrrt 8iB»JapaMit% bl 01 

tiMd;ff.SS-Sll 

•/Ml, y^ S4-8SL 



118 WAB8 nr TBX SAtS Am 

H XXVI proTidet thftt a eommandery before eommeneiiif a 
bombardment will do all in his power to warn the inbab- 
itanU nnleai it aeeompanies an ananlt The bombard- 
ment of Kineban eame within the ezeeption being nmnl- 
taneoDS with the ananlt, and aeeordini^ no notiee waa 
giren the inhabitanta. 

The taking of Port Arttinr.r-The taking of Port Arthnr 
waa the one regrettable incident of the war on the part of 
the Japaneee. The oeeorrenees there are well eommed np 
bj Ptof. Holland, who njit 

''It waa the tortore and mutilation of those Japanese 
who happened to be made prisoners dnring the operations 
against Port Arthnr which stong their fellow eonntrymen 
into madness,' and explains, though nothing can exense, 
the massaeres which were carried on hj them for fonr 
days after the place was taken." 

The aocoont of the taking bj Ibnihal Qjraaia.— In his 
offleial response to the inquiry of the Oenersl Staff as to 
what happened at Port Arthur, Marshsl Qyama rqdied: 

''(a) The facts disclosed below will make it evident that 
the confosion of the soldiers and of the ciTil poinilation 



''1. The city of Port Arthur, which wss a militsxy 
port, was composed of a great number of soldiers and 
workers. 

**2. The retreating soldiers flred on the Japanese from 
the interior of the houses. 

''8. Arms, bullets and powder were left in each boose. 

''4. The entry of the Japanese army into the dtj took 
place towards sunset 

''(b) Those, among the soldiers, who were killed sfter 
the 21st, had all opposed an obstinate resirtance or attempt- 
ed to escape. Death was therefore a necessary punishment 

" (c) The pillage of the property of the ehil population 
is an accQsation without foundation. It may be that the 
Japanese army, which passed the night in the dty, exacted 
certain objects of which it had need, such as tables, benches, 
csndle-sticks, cups, firewood, coal, etc; but, as to pillage^ I 
am able to affirm that it nerer existed. Some rsre infrao- 
tions under this head were condemned, conformably to es» 
taUish lawa.^"" 



OKuro-JAPAnn wiB. * 119 



Oittidim of lUs aooovnt— A« to (a) , Mr. .Ariga < 
that Marihal Qyama kaa made good hit point prorided tho 
ananlt of tho dtj and the fighting in the atieela waa neeea- 
saiy at aU;« and aa to (b), that the Manhal is not aoft- 
dentlj preeiie aa to whether the priionen were ahol in en- 
deaToring to prerent their escape, or after their reeaptore 
for haying attempted to escape.* In the fonner ease the kill- 
ing would hare been justified, in the latter, not If the ob- 
stinate resistance of the prisoners amoonted to insubordina- 
tion, then it maj haye justified their being kiUed; but if it 
oeeazred, not after th ^ were made prisoners, but before^ it 
mnst eertainlx be condemned, their punishment therefor 
being something that would haye occssioned the seyere ie» 
bake of eyen QTnkershoek.* 

TrsatmenI of the dead^— No attempt waa made hf the 
Japanese to identify the Chinese dead, aa it waa practically 
impossible to do so on aeeoiint of the Chinese militaiy ank 
thoritiea haying taken no notice of the eiyil statna of tho 
soldiers. If it had been possible to identify them, one of tho 
great reaaona for ident^eation, the right of the fsmiljr ot 
the deeessed to a pension, did not exist among the Chinese.* 
In disposing of the dead, regard wss had to the pr^jndiee ot 
the Chinese against cremation, and at first thegr were jmaaOr 
buried, althou^ the icy condition of the ground nmde tho 
digging of grayes yery difllcult Later, howeyer, it waa 
trand that the Chinese in the ndghborhood regarded tho 
soldiers aa strangers and so cared little what waa done with 
the dead bodica. Accordini^ less care waa taken in tkia ro» 
gsrd.** 

ftealment of pHMBsn off war.r— Little complaint can bo 
made aa to the treatment of prisonera of war, oxeept in tho 
case of Port Arthur. The Geneya ConyeBtion waa not 
alwaya oboeryed, but thia question presented peculiar dill- 
eultiea. While Japan had adhered to the conyentioBi, Ckinn 
had not Moreoyer, the Chinese had no organised medical 
staflE; and thdr knowledge of medidne waa so imperfect sn 
to make reciprocity of treatment impossible," 



tAia,pFi 

• BjsiiifcuiJL, Iaw el We^ fi 

• Ai%i,pf.Sa-Sil 

w am; pfw Mi-iet 

uAtf^fLllL 



IM WAB8 or TBI BACT AXD 

]jf the eonycntion was not to perf eeUy obterred, eren in 
respeet of aid to the tick and wooiidad in the field as mi|^t 
have been desired," although the general standard main- 
tained bj Japan was b j no means low. 

In this rdation the illnstrioos work of an Englishman, 
Dr. Daly, at Inean mnst be mentioned. In the hospital es- 
tablished there b j himsdf and others were gathered more 
than a thoas%nd wonnded ChineBe, while in the Japanese 
hospital at the same plaee, oat of thirty in all, only one was 
a Chinese, thoogh the nnmber later increased to five." Ex- 
cept in special cases, the Bed Cross Society was not allowed 
to carry on its work within the scene of actiye operations. 
This, Mr. Ariga cpnsiderB to haye been nnfortonate^ as the 
regidar staff was not able to attend to all that was to'be 
done." 

ftealment off prifate pro pe rty ^ r-In the treatment of pri- 
yate property, the action of the Japanese seems to hsTe been 
all that eoold be desired. Goods requisitioned were paid 
for, no imposts or fines were exacted, nor, to Mr. Ariga's 
knowledge, were any eontribntions." The rate of exchange 
.and the price to be paid for proTisions were settled by the 
military aothoiitiea." Among the services requisitioned 
were those of goides and of drivers, with their wagons and 
teams.** Little aid in the execution of requiritions was 
given by the local functionaries, as most ol tiiem had fied. 
In Kinchau, however, a body of merchants, which had been 
made use of by the (Siinese authorities, was made use of by 
the Japanese also." 

The a dministr ation off tlie.oeoupited teRttoqTir-The ad- 
ministration of the occupied territory was at fint entrusted 
to eivn officials, moot of them being the old consuls or see- 
retaries of legation, or secretaries of provinces having a 
port open to strangers; but the friction that this brou^t 
about between them and the army caused them to be super- 
seded later by purely military men." The loesl ftmetion- 

uAtf^fLin. 
u am; fL lit. 
i«iitf;ppLiss-i4r. 
wmi;ppLiss-isc 
M Mi; ppi ler-iTt. 
atmi;ppLie^ieiL 
KmiL,p.iei. 
le am; pfw ii»-im 



THE OHQfO-f IPAVm WU. ' 121 

aries haTing fled, it wis neeeasarj to get othen to take thdr 
places. The eitj of Kinehau, for example, was divided into 
four distrietSy over each of which some popular dtiaen was 
placed whfle two dtu^^ns of similar standing were placed 
oyer the entire city. Finally it was decided that mayois 
should be placed at the head of each yfllage and elections 
were held for that purpose.** A notable feature ot the occu- 
pation WIS the effort made to improYC the sanitary condi- 
tion of the territory occupied.*^ Of penal messures the most 
noteworthy was that of holding the villages to collective 
responsibility for offences committed against the law of na- 
tions, after the manner of the Germans in France in 1870.** 

The conduct off the Chinese.— At the beginning of the war, 
the Chinese Government, through the American Ministers at 
Pelpn and Tokio, proposed to the Japanese Government the 
exemption of private property at sea from capture. This 
wasaccqited. Later the Chinese Govemmeni refused to e3i> 
empt Japanese vessels entering Chinese ports from capture^ 
but as this was only the enforcement of the rule of noi^. 
intercourse, it can. not be held to be in contradiction to 
China's previous action with regard to the exemption of 
private property at sea.** In other respects the action of the 
Chinese dees not seem to have materially improved over 
that of previous times. Prices were offered for heads and 
hands, heads actually were cut off and exhibited in triumph, 
and bodies were sadly mutilated.** 

Iho Oraeco-Tuxldsh War off I897.r-The Graeco-Turkish 
War of 1897 is especially interesting for the care which the 
Turkmh authorities took to show the worid their intention 
to live up to modem standards in the care of prisoners of 
war** as well as to the obligations of the Geneva Conven- 
tion. Elaborate orders were issued in accord with the lat- 
ter, special envoys ci the Sultan visited the hospitals and 
ambidances and it is said that the members of his 



M/ftML, ppi iss-lts. - 
n Mi; pp,t7-a0L 

tt/ftML,^aor-aoii 

»Biii tM THJcahMki, iBtenitkMMlLaw dariiv th» GhiB»^a] 
War, ppi O-IL 

MHoDuid, BbaOim ia Irteniitioesl Lsw, ppi 116^ ISS; Aj%m la 
Goem OBP-JftpoMlw, p. ST. 

MNlQolu r^Ottli^ OiTCBlfDa d« ffkils UenatioMn^ 

I. K iir. 



Its WAB8 nr TBI EAST AMP 

themselTes prepared linen and other material for the eare of 
the dek and wounded.** In the large centers, at leaat, qnit- 
taneea were given for reqniaitionB.'' On the other hand yio- 
lenee to' noneombatants was not infrequent and in Theesaly 
the Greeks were ordered to return to their homes under 
penaltj of the confiscation of their goods." In the admin* 
istration of the occupied territory perhaps the most nota^ 
Ue measures were the imposition of the Turkish imposts 
on sheep, salt and tobacco" and the direction of the Greek 
GoTemment to its functionaries to resign their positions." 

Xipidslott off Greeks fh»i TuAqTir-Immediately after 
the declaration of war a decree of the Sultan pronounced 
the eqmlsion e» siotts within fifteen days of the Dedara* 
tion of all Greeks residing in Ottoman territory. There 
were then nearly 200,000 of these, most of them merchants." 
The fifteen days of grace were emifined to merchants and 
other Greek subjects haying a permanent occupation. All 
other Greeks were ordered to quit in three days, and at 
Smjrma, for instance, Greek subjects were forcibly em* 
barked from the first day of the war. Scarcely eight days 
after the declaration of war 15,000 of them had left Turkey. 

By a q>ecial decree of May 2, the Imperial Goremment 
declared that until the reestablishment of relations with 
Greece, the process of Greek subjects pending before Otto^* 
man tribunals would be suspended, that those owing debts 
either to the fise or to indiyiduals should, before quitting 
the Empire, furnish suflident guarantees of soWency, and 
that those who possessed immoTsbles would not be aUe to 
sell them. Special commisnons were instituted in most of 
the provinces composed of four Turkkdifunetionariea. Th^ 
were to agree to the request of the Greeks to remain on 
condition of their changing their nationality. 

Against this decree the ambassadors of the great powers 
protested. Th^ said it would give rise to regrettable dis- 
orders and that m>«da]ly it should not be applied to Greeks 
empl<^yed in foreign houses, in hospitals, embassies and 
eonsolates. They demanded a prolongation of the fifteen 

MAI*, p. SSH 



THE SPAMiaB-AMBIOAir WIB. * ISS 

dhgn of grace, and while the Perte acceded to this bj grant- 
ing an eztennon of a week he ezprasdy refined to exeepi 
the employeei of conaolatciy hospitala and foreign lioaMi 
from the decree. This hroa^t oat another protect from 
the ambanadorai and henceforth each emplojeea do not 
■cem to have been molested. The last day of grace was 
finally fixed at May 25, but bef ora that time hostiUtks had 



gpawlslwAmerican War pilnolpally marttima^— The Span- 
ish-American War was largely maritime in character. As 
already noticed, the Additional Articles to the Genera Gon- 
Tcntion of 1868 had not receiTcd the nnanimoos approral 
of the signatories of the Cknera ConYcntion and so had not 
become binding. On the snggcstion of the Swiss Ooram- 
ment, howerer, the practice of the Franco-German War was 
followed and th^ wera adopted so fiv as th^ related to 
naval warfare, as a modug vivendi for the war.** Nor was 
the Declaration of Paris binding on either of the partiea. 
Howler, immediately on the ootbrcak of hostilities the 
United States declared that iU ''policy'* woold bo not to 
resort to priyatcering, and althoui^ Spain resenred the 
right to make nse of lettcn of marque she did not avail 
hersdf of the reservation. To the second, third and foorth 
articles of the Declaration of Paris, the United States ad- 
hered, as ''recognised roles of international law."** Span- 
ish vessels in ports of the United States wera allowed thirty 
days from the oatbreak of hostilities to load their esrgoes 
and depart, and were assured of exemption firom seisora 
during their home voyage, on condition, however^ of not 
carrying coal, contraband or analogues of contraband, such 
as despatches or Spanish officers. Spanish vessels sailing 
from a foraign port to a port in the United States, befora 
the outbreak of hostilities, wera likewise allowed to enter, 
discharge thdr cargo and leave without fear of captora 
during the remainder of the vc^yage. The SpaaJsh decree 
made no such provision with regard to vends sailing for 
a Spanish port, and instead of thir^ days for the departnra 
of vends already in port allowed five." 

■■mi; pp. stt^Bis. 

■■J. & Moon, MAiitiiM law ia tho l^oiildi War, ia lalK Urn. 
BItaatioBO— Ka^ War Ooll^»-1001, pfw 1M-I«k 
••IM^pLlSB. 
■•IM^pLlSlL 



Iti WHS or TBX MABt AMD 

Htiitral ditpt allowad to clMor for ^paaidi porta.— ''On 
AiNTil 27, 1898, the Treasury DeiMurtment issued to eolleeUm 
of eastoms eertain instmetions, which were prepared in 
eoosaltation with the Department of State. These mstnio- 
tioDS forbade the dearanee of an American yessel for a 
Spanish port, bat the only restriction th^ placed upon the 
dearanee of amy other Ycssel for snch a port was that the 
▼esse! should not carry cargo of c<mtraband of war or of 
coaL Thns tfcie dearanee of a ncntral ship with an Amer- 
ican-owned cargo for a Spanish port was permitted, and 
to this extent trading between enemies was allowed."* 

The deds h m off the Snpreme Oonrl ia the ease of the 
Pftqnete Bahaaa^— The decisions of the Sapreme Court be- 
long rather to the second part of this work than to the 
first, but there was one decision of such importance as to 
merit special attention. That was ''in the case of the Span- 
ish fishing smacks, the PaqueU Habana and the LdUu The 
particular point decided was that 'cosst-fishing Tcssds, with 
their implementa and supplies, esrgoes and crews, unarmed 
and honestly pursuing their peaceful calling of catching 
and bringing in frcdi fish, are exempt firom capture as prise 
of war.' In reaching this eondusion, howerer, the court, 
through Mr. Justice Gray, who ddirered the opinion, an- 
nounced and applied a principle which, thoui^ often ree- 
ognixed by publicists, has perhaps never before been so 
dearly and precisdy enunciated by a judicial tribunal — 
that is, the prindple of the progressiTe dcTdopment of in- 
ternational law. Referring to a decision of Lord Stowdl, 
in which it was said that the exemption of Tcssds, such as 
those in question, wss 'a rule of comi^ only, and not of 
legal decision,' Mr. Justice Gray said: 

** 'The word "comity'' was apparently used by Lord 
StoweU as qmonymous with courtesy or good wilL But 
the period of a hundred years which has since dapsed is 
amply suflident to have enabled what wiginally may haTO 
rested in custom or comity, courtesy or concession, to grow, 
by the general assent of dvilised nations, into a settled 
rule of international law. As wdl ssid by Sir James Maek- 
intodi: **In the present cent ur y a dow and silent but ▼ery 
substantial mitigation has taken place in the practice of 
war; and in proportion as that midgated praetioe has r»> 

•• am; ppw iva-m. 



ram sPAKisH-AicKiiOAjr wu. ' 1S5 

ceiyed the Mnetion of time, it is niaed from the rank of 
mere usage and beeomea part of the law of nationa.' 
Di$eawt$ on Uu Law of NaUom, 2B; MiiceUan&nm IForfa^ 

The gfogreai t ve ehaiaeter of Xiiteniatl0iial Law^— ''It 
may be hoped that thia enlightened declaration wiU lead 
our eonrta to abandon the rqwtition of the nnf ortonate 
dida in Browm v. Untied Siaiea, bawd upon the fheorj that 
it waa the peenliar prerogatiye of a remote age to fix bgr 
ita eoatomay however rode and barbarona th^ may have 
been, an immutable law, in eompariaon with which the eua- 
toma of modem timea are merely 'eomity' or 'courtesy/ 
which may be diacarded at wiU."^ 

The fOMtlon of the Cuban debt— In the Peace Negotia^ 
tiona the question waa eamcatly argued of the obligation 
of the United SUtea to aaaume the ao-called Cuban debt . 
The Spaniah Oommiarionera daim^ that all outatanding 
obligationa that had been legally contracted ftir the aervi- 
ice of Cuba and Porto Rico, and which were chargeable to 
their indiiidnal treasuriea, alwaya dktinet and aeparate 
from the Treasury of the Peninaula, were Cuban or Porto 
Bican obligationa, that ia, local obligationa, aolely and ex- 
dusiyely affecting the territoiy of the idanda and their 
inhabitanta.** 

The American Comnuasionera, in reply, pointed out that 
while it waa true that the "Cuban Treaauzy" waa not a 
branch of the Spaniah Treasury, the financea of the lalanda 
were ezduaiTely controlled by the Spaniah Oorernment; 
that the debt creating power, auch as commonly bdongs 
to communes or munidpal corporationa, neyer waa ddegated 
to Cuba, and that auch a thing aa a Cuban obligation, cre- 
ated by the Idand in the exerdae of powers dther inlment 
or ddegated, waa unknown to the marketa of the world. 
Th^ then aketched the history of the debt, showing that 
most of it had been incurred in suppressing the insnrre»> 
tions in the islands, and that, while the Spanidi GoTem- 
ment had undertaken to pay the bonds issued as late as 
1890, out of the revenues of Cuba, their nationd chsraeter 
was demonstrated by the fact that on their fkee thdr pay- 
ment was guaranteed by the Spanish nation. IVom so 

•tjiu; pp. las-iss. 

»8«. Doe. Ko. e^ Fut II, SSIk Ooi«; U 8«s, p. 4M. 



IM WHS nr thb bact amp 

point of TieWy said the American Commissioners^ eould 
these debts be eonsidered as local debts of Caba, or as debts 
incurred for the benefit of Cuba. In no sense were th^ 
obligations properly chargeable to that island. They were 
debts created b j the Oovemment of Spain for its own por^ 
poses and throng its own agents, and in whose creation 
Cuba had no Yoiee.** To this the Spanish Commissioners 
replied that, since the bends in question had been expressly 
secured 1^ certain and determinate revenues and receipts, 
Spain had a right to ccmsider that she was only under a 
subsidiary obligation to pay them in the event of the rev- 
enues and receipts primarily hypothecated for the payment 
thereof proving insufficient.^ The American Commission- 
ers closed the discussion by quoting the degree of autonomy 
signed by the Queen Regent on the 25th of November, 1897, 
in which it was declared that the future payment and 
guarantee of the debts should be the subject of a law on 
the termination of the war, as evidence that the so-called 
Cuban debt was really a national debt, and that the pledge 
of the revenues of Cuba was considered by the Spanish Oov- 
emment itself as being wholly within its eontrd, so that it 
eould be modified or withdrawn at will without affecting 
the obligation of the debt«^ 

Wert they pniperly mortgage debtsf — Here the Gommis- 
sionezs were deariy at issue. Did the promise of the 
Spanish Oovemment to pay the bonds out of the revenues 
of Cuba give the purchasers of those bonds a property ri^t 
in those revenues, analogous to the ri^t of the ordinary 
mortgagee, which with other private properties was bound 
to be respected by the cession or relinquishment of the is- 
land! te did the promise at best create merely a moral 
obligation on the part of Spain to turn over those revenues 
to the holders of the bonds as long as she retained her 
sovereignity over the idandf To state the question would 
appear to answer it The holders of the bonds had nppi^ 
rently no such means of enforcing the alleged hypotheca- 
tion in the ordinary courts as the ordinary mortgagee pos> 
sesses, nor was there ai^Nurently any means taken to make 
it effective by placing someone in the customs house in the 

MiM;p.sr. 
41 Mi; y^liL 



THE SPAinSH-AMBIOUr WIB. 11^7 

intensti of the bondholden. Meant of this kind would 
At least have indieated that the iHromise of psyment from 
the revennes was regarded as an esicntial part of the obli- 
gation of the bonds; and althoni^ the grant of a property 
right in a goTenunental fonetion is to be looked on with 
disfaYor, it might thus have been hdd that the attempt to 
ereate a property rif^t was so dear that it should be r»» 
spected by sabsequent soYoreigns. But here there was no 
suclk dear intention. At most the promise might be Intei^ 
preted as a promise to psy from the Cohan roTennes as 
long as Spain had them to dispose of. 

If noli were tii^y pniperly loeal debtsf— The eontroTerqr 
is thus narrowed down to the question* whether the debts 
were properly loeal debts. In that ease entirdy apart from 
the question whether they were seenred 1^ the Cuban rer- 
enues th^ should have passed with the territory. The 
Spanidi Commissionen no doubt f dt that what Spain had 
done for the eolonies die had done for thdr benefit It 
was natural that th^ should so fed, but to an outrider it 
would appear that whatever good intentions Spain may 
have had, her power was misiuied, and that die eould not 
ezpeet to shift the borden of her own mistakes to those 
who had suffered so grievoudy from them already. 

Beeognition off the oontlnaed ebUgaUon of eertain driila 
due Ameriean elUaens bj the treaty of Hsbmaiy IT, 1884. 
— ^A commendable feature of the war, was the promptness 
with which Spain reoogniaed the continuing obligation of 
the treaty of Februaxy 17, 1884, by which die had settled 
the claims of American dtiwns growing out <rf the wars 
with her coloniea. Her acknowledgment of the continnanee 
of this obligation was emphasiied by the payment of two 
overdue instalments of interest, one of which had aeerued 
during the war as well as by tiie ezplieit dedaration that 
such payment was to be considered as a proof of "the pune- 
UlioDsncss'' with which the Goyemment of Her Oatholie 
Majesty attended to ite ''intematbnal obligations."* 

««Mim«, Kffcet of War m PiMIe DdMa tad on TnMm, fai ttt 
OdunUa Lew Bevinr, YdHy^m^Mm§, 



Itt XHB WOBS FXAOB COM, 



CBAFTEB ZU 

TBX VnST FlAOl OOW 



Tilt Bnniaa^ propoial off s PeM« Ctanf «mioe^— Twdve 
days after the ngning of the protoeol raependiiig hostOitiee 
between the United States and Spain, the Bnnian Foreign 
Minister, Count Moorayieif, took the flnt atepa towards The 
First Peaee Conf erenee b j eommnniealang to the diplomatie 
representatives at St. Petersburg the wish of the Csar that 
a eonferenee be ealled which shonld seek for some mesns 
of ''insuring to all peoples the benefits of a real and dnraUe 
peaee, and, above all, of patting an end to the progressive 
development of the present armamenta.'** Bj October 24^ 
1898» all the invitations to the Conference had been formally 
accepted.* 

SiAJeets for oondderatloiL— In a circular of January 11, 
1899 (New Style), Count Mouravieff offered the following 
subjects for the consideration of the Conference: 

**!. An understanding not to increase for a fixed period 
the present effective of the armed military and naval forces, 
and at the same time not to increase the Budgets pertain- 
ing thereto; and a preliminary examination of the means 
by which a reduction might even be effected in ftitnre in 
the forces and Budgets above mentioned. 

**2. To prohibit the use in the armies and fleeta of any 
new kind of firearms whatever, and of new explodves, or 
any powders more powerful than those now in use^ either 
for rifles or cannon. 

''S. To restrict the use in military warfare <xf the formi- 
dable exidosives already existing, and to prohibit the throw- 
ing of projectQes or explosives of any kind from balloons 
or by amy similar meana. 

"4. To prohibit the use^ in naval warfare of subnuffine 
torpedo boats or plungers, or other similar enginea of de> 
stmction; to give an undertaking not to construct, in the 
future, vessels with 



iBolh, Tha Fn« Ooaftmn si Ths BasM^ p, & 



O0Hniivo& -lt9 



^6. To apply to nsTal warfkro the itipolatioiis oC the 
Genora Conyentioii of 1864» on tko bans of the Additknal 
Artidea of 1868L 

''6L To neatraliM iliipa and boats emplogred in saving 
those orerboaid daring or after an engagement 

**7. To reriw the Dedsration eonceming the laws and 
eostoms of war elaborated in 1874 by the Conferenee off 
Brussels, which has renudned unratified to the present day. 

''8. To aeeept in principle the employnient of good of- 
ficesy of mediation and f aeoltatiYe arbitration in cases 
lending thenuelTes theretOp with the object of prerenting 
armed conflicts between natioos; to come to an understand- 
ing with respect to the mode of applying these good olllee% 
and to establish a uniform practice in using them;'*' 

Zhe powers represented^— At the request of the Busrian 
QoYcmment the Queen of The Netherlands offered The 
Hague as the seat of the Conference, and its sessions were 
opened there on Msy 18» 1899. Twenty-six powers had 
sent representatiTes comprising practically all of Europe^ 
and in addition the United States, Mexico, CShina, Japan, 
Persia and Siam. '*0f the independent Governments of the 
. world, the Central and South American Bepublies, the Sul- 
tanates of Morocco and Muscat, the Orange SVee State^ the 
Principality of Monaco, the Bepublie of San Marino and 
the Kingdom of Abyssinia, were the only ones not repre- 
sented in the Ptece Conference.'** The omission of the 
. South American B^ublies would seem to hsTO been un- 
fortunate. 

OrgsniTsWon of the Oonf ereaoe^— The Prenden^ of the 
Conference was naturally conferred on the first Bussian 
delegate^ Baron de Steal, the representatiTO of the Ckar 
at the court of St Jamea. At his suggestion it was agreed 
that the Conference divide itself into three committees; 
the first of these to consider the first four articles of Count 
MonrsYieff 's Circular, the object of which was Isrgdy eco- 
nomic; the second, to consider the next three artides, whose 
object was fewntiiilly humanitarian; and the third, to con- 
sider the last article, which deslt with arbitration. ' Bvm^JV^ 
state was to be represented on erery committee by a muk ^^. 
ber or members dfignsted by the ranking mendMr ^ih/B ^ 



«AM,Km / 



/ 



/ 

/ 



180 TBM W1M8S VEACM COmWEUOKOM. 

ddegatioiL Memben eonld be appointed on more than <lne 
emnmittee, it being poHible for diplomatie membcra to be 
on every eommittee. Scientifie and tedinical delegatea might 
participate in the foil meeting! of the Conference. In both 
the conference and the committees, each country was to 
have one vote. Commnnicationa to the pren of the pro- 
ceedingi of each cmnmittee were to be made throni^ a 
Bnrean in conjnnetion with the F^reiident. Otherwiie^* there 
was to be afieol vte ■eerecy.' 

DMilon of the work among the ooramtttecf.— The eom- 
mitteea were divided into snbo»mmitteee, in which moat of 
the work was done. Artidea 2 and 8, as to arms and ex- 
plosives, were referred to the militazy sabcommittee of the 
first committee, while article 4^ as to torpedoes and other 
instruments of marine warfare, was referred to the naval 
subcommittee. Most of the propositions in the military sob- 
committee were presented hj Colonel Gilinsky, the Bnssian 
ddegate. 

Powdersi dieDs^ eziilostves and Add gans«— As to pow- 
ders, by which was meant the propdling force of projectiles 
as distinguished from the bursting charge, it was proposed 
that none diould be employ^ more powerful than those 
already in use^ but Captain Crosier, of the American Dde> 
gation, pointed out that perhapa more powerful powders 
mif^t be produced which would explode at a lower tem- 
perature, thus causing less injury to the gun and being 
more economical than existing powders. .The point was so 
wdl taken that the proposal was unanimoudy reacted. It 
was also proposed to forbid the use of milling shells in fidd 
artillery, but the proposal waa defeated by deven votea to 
ten. The proposition that no new explonves should be 
used, nor any of that dass known as high explosives, waa 
also lost by a vote of twdve to nine. The proposd that no 
new fidd guns, superior to the best material already in use 
in amy country, was unanimoudy rejected, Bussia and Bui- 
garia abstaining from voting.* 

The throwing of projeetilss fhm balloomk— ''The sub- 
committee first voted a perpetual prohibition of the use of 
baUcxms or similar new machines for throwing projectiles 
or ejq>lo8ives. In the full committee this subject 




TItllOWIKa OF PB0JECTILE8 FBOM BALLOOKt. ' 131 

I bnm^t up for reeontideratioii bj the United States I>ele> 

I gmte and the prohibition was, bj nnanimow vote, limited 

to eoTer a period of five years only. The aetion ta^en was 
for hnmanitarian reasons alone, and was founded upon the 
opinion that balloons, as they now exist, form snch an nn- 
certain means of injury that they cannot be used with ae> 
curacy; that the persons or objects injured by throwing 
explosives from them may be entirely disconnected firom 

j any conflict which may be in process, and such that thor 

I injury or destruction would be of no praeticsl advantage 

to the party making use of the machinea. The limitatioii 
of the interdiction to five years' operation preserves liberty 
of aetion under changed circumstances which may be pro- 
duced by the progress of invention.'*' 

Proposed nde as to musksls.— We have seen that the 
Conference refused to prohibit field guns superior to amy 
already in use. With regard to muskets, it was proposed 

* that no Power should change its existing type, as the vari- 

ous types in use were considered to be essentially the same, 
but that this should not prevent improvements in existing 
types. Am no agreement, however, could be reached as to 

i^^ the difference between an improvement within the type and 

an entire change thereof, no result was reached. One of 
the questions discussed under this head was the prohibition 
of automatic muskets. "The states voting in favor of the 
prohibition were Belgium, Denmark, Spain, Holland, Perria^ 
Bussia, Siam, Switserland and Bulgaria (nine). Those voU 
ing against it were Germany, the United States, Autria- 
Hungaiy, Great Britain, Ita^, Sweden and Norway (six). 
And those abstaining were France, Japsn, Portugal, Bou- 
mania, Servia and Turk^ (six). Fh>m this statement it 
msy be seen that none of the great Powers of the world, 

m» except Busda, was willing to accept restrictions with r»> 

gard to military improvements when the question of in- 
crease of efficiency was involved, and that one great Power 
(France) abstained from expressing an opinion on the sub- 
ject'** In the Full Committee the question was put aside 
for the consideration of a future cmiferenee, as wss also 
''the use of new means of destruction, which might possibly 
have a tendency to come into vogue, such as those dqwnd* 

r GftpUla Crodo^ Bipoit, MiL, p. eSU 
• Oupteia Crodo^ Bipoit, pfw SOShSISl 



1» ttti fiUt HMtM odvMunrot. 

lag npon deelrieitj vat- dionktiy.*'* Towards all theie 
qoMtioDs tlie United SUtoi delegation took the poaitioii 
that it "did not eonaider limitationa in regaid to the nae 
of military inyentiona to be eondndTe to Ae peaee of the 
irorid.'** 

Sqpaading bnlletBir-The sabjeet of bnlleta ''gave rise to 
more actiye debate and to more decided differeneea of view • 
than any other considered b J the snbcommittee. A formula 
waa adopted as follows^ 'the nse of ballets which eziiand 
or flatten easily in the hnman body, each as jaeketed bal- 
letic of which the jaeket does not entirdy coTcr the eore^ 
or haa incisions in it» shoald be forbidden.* 

Posttlsn of the Brttidi Oovimment— '« When this sabjeet 
came np in the Foil Committee the British representatiyeb 
Major^eneral Sir John Ardaglv made a declaration of the 
position of his Goyemment on the sabjeet, in which.he d^ 
scribed their Dam-dam ballet as one haying a very small 
portion of the jaeket remoTcd from the point, so as to leave 
oneorered a portion of the core of aboat the siae of a pin- 
head. He said that thia ballet did not expand in each man- 
ner as to prodnce woands of exceptional eradty, bat that 
on the contrary the woanda produced by it were in general 
less scTcre than those produced by the Snider, Martini- 
Henry, and other rifles of the period Imniediately preced- 
ing that of the adoption' of the present small bore. He 
aacribed the bad reputation of the Dum-dum bullet to some 
exper im ents made at Tftbingen in Oermany with a ballet 
from the forward part of which the jaeket^ to a distance 
of more than a diameter, waa remoTcd. The woands pro- 
duced by this bullet were of a frightfol character, and 
the ballets being generally supposed to be similar to the 
Dum-dam in construction, had probably giren rise to the 
unfounded pr^diee against the latter." 

In hia declaration Sir John Ardai^ had also pointed out 
that after the battle of Omdnrmaii it was found that the 
ballets then in use had not been suflldent to put the 
dernshes kan de cambai, and that for use against them 
the Dum-dum bidlet had been mamfCaetured.'^ 

PMitlia of the United Stalea^'<Tho United Statea rep- 

•Au; p. BIL 
wiitf;p.BiSL 



xzrAimiira BDixBSi. ISS 

raentethre hen for the fliet time took part in the dieem- 
■ton, adrocetiiig the ahandonment of the attempt to tamt 
the principle of prohibition of bnlleta prodneing vnneeee- 
■arily cmel wonnda by the apeeifleation of detaib of eonp 
atmetion of the biiUet» and propoaing the following formnla: 

'' *The nae of bnlleta which inflict wonnda'of naeleaa em- 
elty, anch aa ezploaire bnlleta and in general every kind 
of bullet which exceeda the limit neceaaary for pl^nng n 
man immediately kon i$ eimbai ahonld be forbidden.' ' 

'*The Commit^e, however, adhered to the original prop- 
oaition, which it voted without acting on the anbatitnte aidb- 
mitted.'*» 

Upon the matter coming before the full eonf erenee^ Gap* 
tain Groiitf preaented thia fdrmnln with the following ob- 
jeetiona to that adopted by the Committee: 

ObJeeUona pre aent ed by Oaptain Oroilar.r-"Firat| flial 
it forbade the nae of expanding bulleta, notwithatamding 
the poeaibility that th^ might be made to expand in aneh 
regidar manner aa to aaaume aimply the form of n larger 
calibre, which property it might be neeeaaary to take ad- 
vantage o^ if it ahould. in the fntore be found deairable 
to adopt a muaket of very much amaller calibre than any 
now actually, in nae. Second, that by thua prohibiting 
what mii^t be the moat humane method of inereamng the 
ahocking power of n bullet and limiting the prohibition to 
expanding and flattening bnlleta, it might lead to the adop- 
tion of one of much more cruel character than that pro- 
hibited. Third, that it condemned by dcaigned implicatioii, 
without even the introduction of any evidence againat % 
the nae of n bullet actually employed 1^ the amy of n 
dviliied nation.'*** 

Viewa of Great Britain and the United Blataa overruled. 
— Notwithatanding theae ob jectiona the conference adopted 
the formula of the committee. Great Britain and the United 
Statea voting no. It ja atrange that the poaition of the 
United Statea did not have greater weii^t with the eon- 
fcrenee than it did. The reaaoning of Oqitain Crosier in 
thia Committee and of Captain Mahan in the Naval Con^ 
mittee aecma eminently aound and convincing. 

Work of the naval auboommttleeir-The hktoix ^ the 

uCb|iiUiB Cmin^ Bepoft, AM; an. aU-aU. 

s•Ai««^ala» 



184 THB WXBn TEAOM OOJIfJUUDICQL 



nmval labeoiiuiiittee b mneh the lame as that of tka mili- 
taiy. The propoaitioii to limit the ealibre, Tdoeity and 
length of guns and the thieknesa of annor plate waa aJU 
moat nnanimooalj r^eeted. More than a majoritj of the 
goremmenta dedared their readineaa to cease to conatmet 
warshipa armed with rama, on the condition of mianimitgr, 
but thia waa prevented by the adrerae rotea of Oermanj, 
Anstria-HnngBiy, Denmark and Norway and Sweden. The 
subject of the prohibitibn of new ^rpes of rifles and naval 
gona waa dIanAsed with the wish that the sabjeet should 
be the subject of further study on the part of the variona 
governments.^ 

The prohfbttkm of projectiles whose sole purpose Is to 
Vread asiifayzlalinggases^-One subject that reoeiTed much 
attention from the naval subcommittee waa the prohibition 
of the use of projectiles, the sole use of which is, on burst> 
ing, to spread ssphyxiating or deleterious gaaea. The Uni> 
ted States waa the only country voting **no** on thia prop- 
oeition. Great Britain'a vote, however, being conditioned 
on unanimity. The reasons which Captain Mahan, the dele- 
gate of the United Statea gave for his action, and in thia 
he waa supported by the whole delegation of the United 
Statea, wero: ''L That no ahdl emitting such gases is aa yet 
in practical uae^ or haa undergone adequate experiment^ 
eonaequently a vote taken now would be taken in igiior- 
ance of the facta aa to whether the results, would be of 
a decisive character, or whether injury in exceas of that 
necessary to attain the end of warfare, the immediate dia- 
abling of the enemy, would be inflicted. 8. The reproach 
of cruelty and perfidy, addressed against these siqiposed 
shells, waa equaUy uttered formerly against flresrms and 
torpedoea, both of which aro now employed without acruple. 
Until we knew the effecta of such ssphyxiating ahdla there 
waa no ssying whether th^ would be moro or less mereiftil 
than missfles now permitted. 8. That it waa Hlopcal, and 
not demonstrably humane, to be tender about aaphysiating 
men with gaa, when all wero prepared to admit that it waa 
allowable to blow the bottom out of an ironclad at mld- 
ni^t, throwing four or five hundred men into the aea to 
be choked by water, with scarcely the remotest chance of 
eacape. If, and when, a ahell emitting asphyxiating 

MIMA, fp. IVhlVL 



won OF THB OOVRnDICnL * 13S 

alone has been iaoeenfolly prodnced, tlien, and not beCon^ 
men will be able to rote intelligentlj on tlie sabjeet'** 
This argument would appear to be unanswerable. 

Adaptation of the principle of the Qenevn OonveBikMi to 
maritime warfare and the adoption of the eomrentiMi f er 
the r^gidation ef warfare on landr-The second eommittee^ 
to whieh were assigned articles 5, 6 and 7 of the Bossian 
Cirealarp was divided into two sabeommittees» the first deal- 
ing with the adaptation to naval warfare of the Geneva 
Convention of 1864^ on the basis of the Additional Artidea 
of I8689 and the neutralisation of boats or lannchea em> 
ployed in the resene of the shipwreeked during or after 
naval battlea; and the second, dealing with the revisioB of 
the Ptojeet of Declaration of the Bmssels Conference of 
1874 

Naval Bed Oroos OonventioBL— -Of the Convention apfdy- 
ing the prindplea of the Geneva Convention to naval war> 
f^ it is perhapa soffident to say that it was a complele 
remodding of the Additional Artidea of 1868, and that both 
in form and substance it evidenced the care and stn4f 
which had been given to the subject in the interim. 

Begnlation of the Laws and Customs of War on Liad^— 
Nothing like the same changes had to be made in the PMk 
jeet drawn up at Brussels for the regulation of the Laws 
and Customs of War on Land. Changes were made, liow> 
ever, in order to guard more surdy against any im]dicatioii 
of rightful authority on the part of one bdligerent over 
the subjects of the other and artidea were added fbr the 
increased comfort of prisoners of war and for the reeogni> 
tion of sodetiea formed for thdr aid. These were largdy 
due to the efforts of the eminent Bdgian, M. Bomberg^ 
Nisard, who, since the Franco-German War, had devoted 
much of his energy to securing their adoption. Inthenudn, 
however, what was done was to adopt the substance of the 
work of the Brusnis Conference, so that the discnssionB 
there hdd are the best'commentaiy we have on The Hague 
Begulations. But the form of the work was dianged. b- 
stead of a Dedaration it was put into the form of a (km- 
ventioii by which the Contracting Powers agreed to imoa 
instructions to their armed land forces, whklk diould be 
in conformity with the Begulations respecting the Laws 



IM TBE wnn nuLOM cNmnBicnL 

ftnd Cuttonit of War on Luid annnxftcl tboreto. Tho 
plaeing of the rules of warfare m the Aniittx inatead of in 
the Convention did not detract from tlieir obligatorj char- 
acter and it bad three advantagea. It made the iaaoance 
to the armiea of regnlationa eonforming thereto dbligatoiy. 
it allowed the terminology of the regnlationB to be adapted ' 
to the needs of the different armiea and finally it aatiafied 
the acmiilea of the amaller Powera, who felt that it made 
any implicatlbn of an acknowledgment on their part of 
the rightfnl authority of a hostile bdligerent orer their 
nationala less likdy. 

Men of speoial disttnetto&r- Of the many able and dis- 
tingnished men of the second subcommittee it is difficult to 
mention some without slighting others, but it may be per- 
missible to refer especially to the IVendent» IL de Martena, 
of Bussisi who enjoyed the unique honor of having also 
been a delegate to the Conference of BrDssds, and to the 
Secretaiy, M. Edouard Bolin, of Ohent» son of Bdin^ae- 
quemyns, und now Editoi^in-Chlef of the Bevue De Droit 
International, throng whose readiness of comprehension 
snd fdmess and accural of statement maoy a serious 
difficidty was avoided. 

Dedaralioin of UnHed Btatea aa to ezenqMon of private 
ptup e ity al ssa from captnrs^— Among the notable deda-. 
rationa made at the Conference was that of Mr. White, on 
behalf of the United States, in f^vor of the exemption of 
private p r oper ty at sea from captore. The Conference, 
however, felt that the adoption of such a declaration was 
beyond its powers, and so referred the matter to a future 
ConferenesL 

rinal A0I of the Oonf erenee.— The Conventiona and Dec- 
larations were not, however, the entire work of the Con- 
ference. After mentioning them, the Final Act goes on: 

''Guided 1^ the same sentiments, the Conference has 
adopted unanimoualy the following resolution: 

** *The Conference is of opinion that the restriction of 
militsiy charges, which are at present a heavy burden on 
the world, ia extremely desirable for the increase of the 
material and moral welfare of mankind.' 

''It haa, besidea, formulated the following wishea: 

Bevlriflinef theOenevaOoBventionw— "L The Conference, 
taking into consideration the preliminary steps taken by 



mrii. AOL ISf 

the Swtai Fed«nd GoTenimeiit for the rmricm of the Oene- 
▼a Conventioii, txpreum the wish that steps may be shortlj 
taken for the assembly of a Special Conf erenoe haTing for 
its objeet the rerision of that ConventioiL 

''This wish was voted vnanimooslj. 

Bl|^ and dalles of nsolnhk— ''2. The Conferenee ex» 
preases the wish that the questions of the ri|^ts and duties 
of neatrals may be inserted in the prosramme of a Confer^ 
enee in the near fotore. 

CRiaoges in liflss and nanral guuk— ^'8. The Conferenee 
expresses the wish that the questions with regard to rifles 
and naval guns, bm eonsid»ed by it» msy be studied by the 
governments with the objeet of coming to an agreement 
respecting the employment of new ^rpes snd calibres. 

TiimHatioB of war budgets and of land and naval f ocom. 
—"'4 The Conferenee expresses the wish that the govenip 
. ments» taking into consideration the proposals made at 
the Conf erence» may examine the possibility of an agree* 
ment as to the limitation of armed forces by land snd aea» 
and of war budgeta. 

Xnvidabflity of private p roper ty al sea^'B. The Con- 
ference expresses the wish that the propossl, which eon- 
templates the declaration of the inviolabili^ of private prop- 
erty in Naval Warfare, may be ref ened to a subsequent 
Conference for consideration. 

Bombardment of towns by naval focosarr-"(L The Con- 
ference expr ee s es the wish that the propossl to oetfle the 
question of the bombardment of ports, towns, and villafaB 
by a naval force may be ref ened to a subsequent Conferenee 
for ccmsideratioB. 

"The last live wishes were voted unanimously, saving 
some abstentiona.'** 

Appreelatlon of the wotk of the OonferenDe^— The llnal 
session of the Conference wss held on July 2B, 1899, more 
than two months after it first sssembled. Aside from the 
increased prominence the Conference gave to the prinmide. 
of arbitration, it will alwi^ deserve a high plaee in the 
history of the laws of war for its adaptation of the prinei- 
plea of the Geneva Convention to naval warfsre, and for 
the adoption and improvement of the rdea concerning the 
laws and customs of war laid down at Bnwsels in 1874 

MAM^p^sn-^m 



1S8 ram was nr sooth afiuu. 



CHAFTEBXnL 
WAS nr SOOTH aviioa. 

Less than the three months after the Pint Peaee Con- 
f erenee adjourned. Great Britain was engaged in a stmi^ 
i^e with the South African B^nUics, which for desperate- 
ness rivaled that which the ancestors of the Boers had 
maintained against Philip IL Into the eanses of wan it 
it not the purpose of this work to go. 

The use of expanding bnlletSw— Among the early charges 
madewasthatof the use of expanding bvdleta. Kngiandhad 
not signed the Declaration prohibiting them, and, as we have 
seen, claimed that those she had nsed were not vnnecessanlj 
cmeL Nevertheless, she did not nse them during the war 
and her reason for not doing so is given in the following 
extract firom the report of the Commisnon appointed to in- 
vestigate the conduct of the war: 

'*M<Hreover the reserve of 151,000,000 rounds included 
about 66,000,000 rounds which, as events went» were not 
available at all for the purposes of this war. This was the 
ammunition known as Hark IV. It had been found from 
the experiences of the Chitral campaign that the Mark n 
ammunition then in use was not deadly enon^ to stop a 
rush of religious fanatics, and steps were taken which with 
their consequences in the summer of 1899, are best described 
in the words of Sir Heory Brackenbuiy : 

'' 'In India th^ produce the Dum-dum ammunition, in 
which the head of the bullet is not cov»ed by the nickel en- 
velope. In this country we produced a bullet in which there 
is a small ^lindricid hole in the lead at the top and this is 
left as an opening, and is not cov»ed over with the niek- 
cL This bullet was an expanding bullet We had every in- 
tention of using this bullet and making it, in fact, the bullet 
for the British Army all over the world, and, I think about 
66,000,000 of it, up to the 81st March, 1899, had been de- 
livered, and formed part of our stock of 172,000,000. It was 
known as Mark lY. We had an exceptionally hot i 



in 1899» and It was found that, eapeeiaDy in tka hands of 
Yolnnteen, where the riflea had not been kept partlenlnily 
dean, there were aeveral inataneea in whieh thia haDet 
stripped, to nse the teelinieal term, that ia to say, the lead of 
the ballet iqnirted ont throai^ tliia opening in the top of 
the nickel envelope, and left the anvelope beUnd in the rifle. 
Then, if there was a seeond load, you were apt to get an 
aeeident, a blow baek in the breach. This happened at Bis- 
legr, and it happened in aeveral other plaeea with Ydnnteera. 
There eonld be very little doubt of what was the canse of 
it; it was dne to exceptional heat, and it required a rifle 
which was not dean. We carried oat a great nomber of eK« 
perimenta to try to reproduce this, and we always found it 
most diiBcult to reproduce, and the only conditions under 
which we could reproduce it were the conditions of great 
heat and a dirty rifle. Those two conditions of great beet 
and a dirty rifle were exactly the conditions which were 
likdy to occur in war, and, therefore, it seemed to me, end 
I so advieed the Commander-in-Chief and the Secretary of 
State, that none of this ammunition should be considered 
serviceable for war, and consequently, 66,000,000, or there- 
abouts, of our reserve was noneffectire for purposes of war. 
It was about the same time also in tiiat summer that The 
Hague Convention sat, and passed a resdution against all 
expanding bullets, but our Government was not a party to 
that Convention, and th^ declined to be bound by it, but, 
neverthdess, it is impossible to avoid a fading that it had e 
certain moral effect, and that it was not consid»ed desirable 
to use an expanding bullet in time of war. The reason why 
we did not use the expanding bullet in South Africa was not 
The Hague Convention, however, but because the Hark lY 
ammunition, our expanding ammunition, had proved unflt to 
beusedinwar. Consequently about two-flfths of our reserve 
of ammunition could not be used. We were driven to great 
straita at one time, because we had actually got reduced ia 
this country te two or three boxes of Hark n ammunition; 
so that if we had had to go to war with a European Power 
we should have had to fif^t them with expanding buUeta.* 
''The War Ofllce sent out 4,000,000 rounds of Hark lY 
ammunition to South Africa in the early summer of 1888, 
but on the IGth July tdegraphed out orders that it waa 



140 THS WAS nr sodth avuoa. 

to be used m praetiee only, and on the ITth Oetober direetad 
that it ahoold all be aent home.''^ 

It ia q^te certain that oeeaaionallj on both aidea during 
the war expanding and even ezploaive bolleta need in 
hunting were made nae of, but thia waa reiy exceptional 
and happened in apite of the eameat effort of the anthoritiea 
to prevent it* 

Uae of nalhnaa aa aoUiera^— It waa early apprehended that 
the nativea would be need aa aoldiera, and the apprehenakm 
waa natural in view of the great preponderance of the . 
native populmtion. There acfema to be no queation, however, 
that neither belligerent aude general ,uae of the KaiBra aa 
aoldiera, although ample opportunity waa eertamly offered 
the Britiah from the hoatilily of the nativea towarda the 
Boera. Both armiea made uae of them for teamatera, aerv- 
ante, guidea and aeouta, and to thia it would aeem no aerioua 
objection can be made.* KalBra connected with the Britiah 
f orcea were, however, viewed with auapidon by the Boera, 
and many caaca of their harah treatment by the latter 
reached the eara of the Britiah authoritiea. Sir A. Conan 
D^yle aaya that ''when it waa found that they were ^ya- 
tematically ahot th^ were giyen riflca, aa it waa inhuman 
to expoae them to death without any meana of defenae.'** 
Likewiae, on the occaaion of Boer raida into Zululand, it waa 
declared by the Britiah Oovemment that if the Boera in- 
vaded "native diatrieta'* the nativea would be enoouraged 
to defend themadvea.* A more qucationable proceeding 
waa the uae of armed KaiBra late in the war for the de- 
f enae of the railroad linea.* If the deatruction of the rail- 
way linea had alwaya been iUegal, the uae of the armed 
nativea in their defenae might have been juatified, but, aa 
we ahall aee later, thia waa not the caae. 

Oombatantdiaraeter of Boera^—In The Hague Begulationa 
are enumerated four conditiona which entitle thoae aatia- 
fjring them to the privilegea of aoldiera, two of theae being 
the carrying of aome diatinctive aign recogniaable at a 



iRcpoit of Hit MaJMlT^ O wi i wl t d ii nfru cb tha War ia Soolh 

Africa, p^ aa 

t A. GoBui IkjU, The War ia Sootli AfriM, p. ItC. 

• A. GoBui I>ogrk, The Wer fai Sootli Africm p. ItL 
«PluL DBbOM, Foerth BniM, VoL LXXIX, pp. 88, asa. 

• DotH Tba War.iB SuBlh AfriM, p^ ISL 



OOMBATAlfT CHAIAOmi OF iDni. 141 



dktaaeo and eanyiBg mnnt openly.* It b qaeitioiiablo 
whether the Been always eomplied with theae two eon- 
ditiona,* bat thk tmet k not in itadf eondiiaiTe of wronf- 
doing on their part, aa the four eonditionB ennmerated in 
The Hagne BegiilationB were intended to inaore eombatant 
righta to thoae aatiafying them, not neeenarily to plaee 
othera not aatiafying them ontdde the eombatant elaaa. 
Caaea not eoming within the terma of the proviaiona were 
to be left to the unwritten law of nationa. Oreat Britain, 
at both Braaaela and The Hagoe, had taken a high atand 
with regard to the right of the population to participate 
in the defenae of ita eoontry, and, aa mii^t have been ex- 
pected, aeema to hare made no objection to the Boer foreea 
on aecoont of their at timea informal coatome, althoni^ 
in the early atagea of the war the Boera Invaded Britiah 
territoty ud ao were not atrietly fighting in defenae of 
their own country. The refusal of the British authoritiea 
to acknowledge the belligerent character of the Boer foreea 
in the later atagea of the war aeema to have been cauaed 
by their feeling of the joaelessness of the guerilla strug^ 
rather than by the noncompliance of the Boer foreea with 
the conditiona neeessary to entitle them to combatant pri^ 
ilegea. 

Ohargea and eonnterdiargea^-A practice condemned by 
the laws of war ia fighting in the uniform of the enemy, 
and of thia individual Boers were evidently guilty.* Chargea 
of violation of the white flag and of the Gk^eva Convention 
were made on both aidca, and the charge of not giving 
quarter waa made against a amall detachment of British 
soldiers at Klaudalaagte;* but moat of theae chargea were 
either denied or explained. No war, however, can be en> 
tirdy free from auch ineidenta, and the authoritiea on both 
aidea aeem to have kept them at a mmimiiwi With regard 
to the treatment of prisoners, and the sick and wounded, 
there appears to have been littie d which to complain, 
except possibly the unpreparedness of the Britiah author- 
itiea for the care of the aiek and wounded at the outbredic 

• Aitldi 1. ' 

TDogrk, The War fai Soatli AMm. pp. lia-US} V. 
GMm Sud-AfrloaB^ p. 107. 
tDogrb, p. US. 

• De^HMt, Xa Game SaA-AfriesiB^ p. 1S8. 



142 THi WAS nr sooth avuoa. 

otttewar.^ Darisg the Uter part of the war the British 
authoritiea refused to allow neatral field hoqihals to pro- 
eeed to the relief of the Boers on aeeoont of the abuse 
whieh had been made of them earlier in the war. Thus, 
it wss reported that the mission sent by the Oommfttee of 
Antwerp was the means of volunteers joining the Boer army 
under the protection of the Bed Cross, and the Dnteh field 
hospital which left July 5, 1900, was immediately airested 
for carrying information to the enemy, and its male eoo- 
tingent retained as prisoners for a considerable time.*^ 

Embargo^— ^An interesting case of embargo was the forced 
return of a British ship which had left Dqrban, in Natal, 
for Lorenso Marques, and the compubory disembarkment 
of aU the passengers not of British nationality.'' 

Fears for the gdd mines.— It was rery mneh feared that 
the Boers would seek revenge on the owners of the gold 
mines, whom they considered largely responsible for their 
troubles, by wrecking the mining planta. Suggestions to 
that effect were made to the Boer Govemmenti but th^ 
were never carried out, and the British took possession it 
the mines substantially uninjured." The Boer Government^ 
however, needed the output of the mines in order to carry 
on the war, and requisitioned in all, it is said, £150,000. 
But, in consequence of many of the eoneesrionaiy compa- 
nies leaving Uie country, the government was eompeUed 
to work the mines itsell>« 

Befnsal of the British Oovemment to reougnlse furfeilures 
and aUenatftons.— In the London Times of January 16, 1900, 
it is stated that all mines were threatened with confiscation 
which did not produce monthly 30 pereent of their average 
yield, taking tiie three months preceding the war as the 
basis of the calculation." Possibly this was the occasion 
of the notice of January 28, 1900, that the British Gov- 
emment would not recognise the validity^of forfeitures of 
property within the Transvaal or The Orange Wee State, 
or of charges, fines, or eneumbranees of whatsoever deserip- 



>• Report of Bojal OomBlMioB on Ouo aad T^raot 
Wounded dnriiig the Sooth AlriaiB OuBpo%Bp p. 4. 



ttAM.,p.lSSw 

MBhM Book, Sooth iikte, 1901 (od. 6C7), p. St. 

MSOipiCaet, lA Qmm Bm^AMaiimK p. IdS. 



oouiAimBiiiro ov Butiu tmnaxM.' US 

tion dedaredy levied or ehmrged upon saeh propertgr, or 
of eoiiT^ymiieee of the ■ame made sabaeqnentljr to the b^ 
pmung of the war by the two gereniiiienti.** On Mmnk 
19 thk waa aupplemented by a Pkodamation refoaiiif to 
reeogniie aHenationB of property, whether of laada^ nil> 
way mmea or miiimg righta made Ij the two goTemmenti 
anbaeqaent to the date of the IVodamation.'' Neither of 
theae meaaQrea, it would aeem, went beyond the ri^ of 
the Britiah Oorerament. Aa it waa probable that iMat 
of the f orf eitorea woold be made for eomplieity with the 
Britiah eanae, it woold have been moat ongratefol for the 
Britiah Ooremment to have reeo^niaed their validity. Aa 
to the aeeond meaanre, the aaeeeaa of the Britiah aima 
waa apparently ao certain at the time of ita promnlgatioat 
that the grant of any eoneeaaion, or the alienatioB of any 
pnUie property, moat have aeemed to the Britiah anthor- 
itiea merely an attempt to deprive them of the frnita of 
victory and not the exereiae of legitimale govemmcntal 



Oommaadeeriag of Britiah aiAJeotair- Complainta were 
early made to the Britiah anthoritiea that the Orange IVee 
State waa compelling Britiah anbjeeta to jmn ita f oreea, and 
in a tdegram of October 11, 1899, Lord Milner inq[inred 
whether it waa tme that Britidi aabjeet% who had never 
taken the oath required by law, had been ao treated on . 
the groond of reaidence or of poaaeaaing property in the 
atate.** Freaident Steyn replied by tdegraph on the aame 
day that "No one ia regarded or treated aa a bori^ier who 
baa not been with hia knowledge and conaent pnt on the 
burgher liat and exerciaed in dectiona or otherwiae the pri^ 
ilegea of bnri^erB.'**** Neverthdeaa, eomplainta eontfaned 
to be made and with great poaitiveneaa by Lord IGfaiar.** 
It ia alao reported that foreign rendenta generally were 
compelled to enter the acrviee of the IVae State.*^ 

Treatment of Britidi aiAJeota in the Xranavaal and e( 
dangerooa peraona in Britidi TeRttfliyw-^ritiah aab jeds 
in the Tranavad were required to leave the c ountr y on 

MPlut Vmpm, 1900, VoL LVI (dL -«)• 

ivPliffL Tt^ptn, 1900, VoL LVI (dL -ItO). 

MFiffL Fteper% 1900, LVI (cd. -49), p. llBw 

MFiffL Fteptn, 1900, LVI (cd. -49), p. Wk. 

-Put Vmptn, 1900, LVI (ed. -«ai), p. 9L 

tiFor nMmj of foMlB midnti ta adlilaiy aviii^ wm «0aw 



( 



IM THS WAB IV aOOTH avuoa. 

the outlireak of the war, imleH th^ reeeired tpeeial p€r> 
minion to rommia. Haiqr» howerer, whether with tpeeial 
permienoii or not, did remain, hnt in certain plaeea were 
anhjeeted to iubeeqnent expnldon.** The Britiah alao had 
to expel from their territory individnala whoae preaenee 
appealed to be dangeroua. Ptobablj in aome eaaea indi- 
▼idnala were expelled on inanilleient sroond. An aaaoranee 
waa given by Great Britain to Oeimany that reparation 
would be made where the ezpnlaion of the lattgrli aobjeeta 
waa nnjnatiiled.'' 

The amwnratloB of the Boer Bepnblka. So far the eon- 
dnet of the Britiah haa not been open to aeriona eritieiaai. 
With regard to their annexation of the two republiea, there 
ia more room, for doubt It haa beeome too well eatabliahed 
in the lawa and eoatome of war to need elaboration, that 
^eonqneat ia not complete nntil anbatantial resiatanee haa 
eeaaed, and that until then aorereignty remaina where it 
waa before the war, ao that prerioua to that time the an- 
nexation of territoty ia improper. It waa claimed hy the 
Britiah that the Boera proclaimed the annexation of Brit* 
iah territory earlier in the war, but thia the Freaidenta of 
the two Bepubliea denied; and it doea not appear that the 
Britiah Oovemment jnatiiied ita action on the ground of 
repriaala. Leaving that out of account, aubaequent eventa 
ahow that the atmexationa were premature^ and that many 
of the daima to obedience, made in prodamationa in con- 
aequence, were unjuatified. But ''hindnght ia better than 
foreaight,** and it doea not appear than the Britiah author* 
itiea were altogether unreaaonable in thinking the war prac- 
tically at an end at the time of the annexationa. A year 
later the end of the war aeemed much 'further off than it 
did then. Of thia fact no atronger evidence can be de- 
manded than the letter of Flreaident Steyn to Lord Ctch- 
ener aomewhat more than a year later, in which he aaid: 

Letter of Preaident Steyn to Lord Kitchener on the re- 
trogruaim in Britiah affalia fran the middle of UOOr- 
'*I alao note that Tour Excellent aaaumea that our atrug^ 
^e ia hopdeaa. I do not know whereon Tour Bxcdlen^ 
f ounda your aaaumption. Let ua, for a moment, compare 
our reapective poaitiona now with thoae of a year ago. 






▲mrizATJov OF Bomsroauoi. 14i 

"A year ago, after the aurreiider of General Prindoo 
the Cape Colonj waa ^together peaeeful and free from 
our eommaiidoa. Tho Orange FVee State waa almoat totally 
in your banda, not alone capital, raflway line, and other 
towna, but alao the whole country, except there where 
Commaiidant Haaabroek waa with hia commando, and it 
waa almoat the aame in the Soath African Bepublie. That 
country waa altogether in yoor handa, excepting where 
Oeneral Ddar^ waa with hia fiommando, and General Botha 
with hia, in the back coontry — the BoachTdd. How do 
matten atand todayf The Cape Colony ia, ao to ape^ 
iUled with onr commandoa, and th^ are in reality in poa- 
aeaaion of the greater portion of that Colony, and t^ about 
aa th^ wish, and we hare continnaUy many of onr race 
and othera joining na, thereby proteating againat the groaa 
injnatice done to the Bepnblica. 

**Jn the Orange Free Bute I firedy acknowledge that 
Tonr Excdlen^ ia in poaaeanon of the capital, railwaya, 
and a few other towna not lying on the railway, hot that 
ia the extent of yoor poaaeaaionaL 

''The whole Orange Free State, with the above exeep- 
tiona, ia in our poaaeaaion. In the majority of the chief 
towna Landdroata hare been appointed by na, and where 
the chief towna are not in onr poaaceaion the Landdroata 
are appointed in the diatricta. Law and order in the 
Orange Free State are maintained by na and not by Tonr 
Excdlen^. In the Tramvaal the eonditiona are aimilar. 
There alao law and order are maintained by the magiateateB 
appointed 1^ the Govemmenl 

''Allow me to remark that yonr Excdlen^'a jnriadiction 
extenda only aa far aa yonr cannon can reach.'*** 

Thia eonllrmed by Sir Alfired miner'a letter of lUnaqr 
6b lOOLr— The gencoral purport of thIa aa to the r e t i og rea- 
don in Britiah affaire from the middle of 1900 la confirmed 
by Sur Alfred Milner'a letter to Mr. Chambeilain of Fdh 
mary 6, ISOL** 

Iba prodamaliona f oOowliig aimaiathwL-— gVom the 
atepa taken immediately thereafter, it ia evident that the 
annexation of the Orange PVee State, at leaat, waa not 
intended to be a dead letter. The Ptodamation of annexa- 

MBtat Book, laoa, VoL 07 (od. taa), fw at. 

MBhw Book, 1901, VoL 47 (ed. 847), p. aiL 
10 . • 



y 



146 no WAS nr aoors imoL 



tion was lasaed May 24, 1900. A WMk later Lord Boborta 
declared ''that the Orange River Cdkoj ia, aa a temporaiy 
meaaore, and until further notiee, placed under martial 
law, aa aneh law ia nnderrtood and adminiatered in Britiah 
territory and by Britiah offieera.**** 

Bj another Proclamation, of the following day, he warned 
all inhabitanta of the Orange Birer Colony who ahoold be 
found in arma fourteen daya thereafter, that th^ woold 
be liable to 'treatment aa rebda and to anffer in peraon and 
property accordingly. He alao required the aorrender of 
arma and ammunition tinder penalty.*' 

&^)nattee of treating thoae "on commando" aa rebebL— 
While few appear to have been brought before the eourta- 
martial on the mere charge of bearing arma, H ia probably 
only too true that the threata in thia prodamation were 
at timea carried out by the burning of &rma; for in the 
liat prepared by tiie Britiah Oovemment of the fkrma that 
were burnt, the only cauae aaaigned in many caaca waa 
that the owner waa ''on commando.*'** The puniahment 
thua inflicted waa moat unfortunate aa weQ aa moat nn- 
juat, and apparently it had much to do with the renewed 
activity of the Boera and the prolongation of the war. The 
injuatice of treating thoae "on commando" aa rebda waa 
80 manif eat that by a prodamation of September 1, 1900, 
Lord Boberta declared that only thoae buri^era reddent 
in the Orange Birer Colony, who had not been continuoudy 
"on commando" dnee a time prior to the annexation, were 
eonaid»ed aa aubjeeta of the Qneen, and that burgfaera 
who had been ao on commando^ ahould, if captured, be 
treated aa priaonera of war.** 

The Oalh of Ne utr a lity . r-One of the firat atepa taken 
by Lord Boberta on entering Bloemfontein, in ICuch, 1900, 
waa to iaane a prodamation, the main part of which reada: 
"All bnri^era who have not taken a prominent part in the 
poli<7 which haa led to the war between Her ICajeaty uid 
the Orange IVee State, or commanded any forcea of the 
BepuUie, or commandeered or need riolence to any Britiah 
aubjecti, and who are willing to lay down thdr arma' at 

MlHtfL Ftepm, 1900^ VoL ae (cd. -ttl), p. C 
tf Plut Ftepcn, IWK VoL 60 (ed. -AUh F- i- 
nPlut Fteptn, 1901, VoL 47 (ed. -«a«). 
MFwL Ftepcn, 1900^ Vd. 60 (ed. -489), p. U 



XHB yXOnAUTT OAXS. 147 

• 

onee, and to bind themtelTes hj an oath to abalain from 
farther participation in the war, will be ^ven paaMB to 
allow them to retom to their homea, and wiU not be made 
priaoneri of war, nor wQl their proper^ be taken tram 
them."** ' 

IMffered fhn a Maoner'a Parole.— Thia waa endenOj 
aomething different from the releaae of priaonera on parole. 
It waa an inducement to lay down arma, which may hare 
looked nnobjectionaUe from the Britiah point of Tiew, 
bat which mnat hare looked to the South African Oovem- 
menta aa a bribe offered for deaertion from their canae. 
The 80-caUed Oath of Nentralit^r vixmt have been regarded 
aa the conanmmation of the deaertion rather than aa the 
parole of a priaoner of war. 

It ia not snrpriaing that neither of the BepnUiea recog> 
nised ita validit^r. Their action in compelling the men iHio 
had taken the oath to go again on eommando would ther^ 
fore appear to hare been juatiiiable. 

Where tUa oath waa taken yohmtarflj It waa binding OB 
the taker unlem he waa releaaed bgr the Tioialion of the 
imtdltioBi of the oath on the part of the Brlttah auttioritiiB. 
— ^But it waa not juatifiable for the men who had taken the 
oatha to retake arma voluntarily, unlcaa Hhcy had been re- 
leased from the obligation of their oatha by the f^ure of 
the Britiah Government to live up to ita part of the con- 
tract. Thia, Oeneral Do Wet daima, waa the caae. He 
daima that the Britiah Oovemment violated ita contract 
in the first place by requiring the inhabitanta, both ^oae 
who had not taken the oath of neutrality and thoae who 
had, to fnmiah information with regard to the preeenee 
of Boer forcei on or near their land, and in the aecond 
place by requisitioning the property of thoae who had taken 
the oath.*^ Whether these things were or were not vlola- 
tiona of the contract, it ia eaqr to ace how the Boera re- 
•garded them aa such, and therefore fdt justified in vdfam- 
tarily retaking arma. On the other hand, it ia ea^ to aee 
how the Britidi authoritiea ahould have fdt th^ were not 
violations of the contract, and how th^ accordingly fdt 
justified in punishing the Boers who a^in took up atma. 

Iha injustfoe of pnnldiing those who were tevoed to vla- 

MAM.,p.a. 

«t Db W«t, TlwM Tauif War, p. ISSl #f s^ 



148 TBM WAS IV BOOTH ATUOUL 

lato tlidr mIIl— If thcM bad been aU whom the Britidi 
aathorittes ponithed, there would be littte ground for harah 
eonunenty but thej were not A large number of thoee 
who reiumed fighting were terrorised into doing ao b;/ the 
Boer foreea. The hardship of their being puniahed on that 
aeeount ia evident. On this point. Sir A. Conan Doyle aaja: 
"Their promise waa in a aense conditional upon efleetiTe 
protection from our troopa. We had no right to plaee a 
man in ao lerriUe a poaitton that he had to ehooae bo- 
tween breaking hia parole and death at the handa of hia 
own countrymen. If we were not cure that we could pro- 
tect them we could have retained them in guarded campa» 
aa we eventually did. If we choae to turn them looae on 
the wide Teldt, then it waa our fault more than theirs that 
they were forced into the ranka of the enemy. To their 
credit be it aaid that even under such pressure many of 
them were true to their oatha. 

"But^ if their guilt ia indeed no greater than our own, 
then how are we justified in burning down their housesf "** 

The great evU of the war<— Thia bringa m to the 
great evil of the war— the burning of the furma. 
Fh>m June, 1900, to January, 1901, 634 in aU are 
reported to have been destroyed in this way.** In many 
caaes the causes assigned for the burning constitnted se- 
rious offences againat the laws of war, such aa irregular 
■hooting and train wrecking; but the causes more often 
assigned, such aa harboring Boers, and laying waste country . 
used aa a base by the enemy, were capable of the widest 
extension, whfle the burning of &rms on account of the 
involuntary breaking of the neutrality oath, or merdy on 
account of the owner being "on commando," way, aa we 
have seen, abaolutdy unjustifiable. One of the worst feat- 
ures of such a practice ia the rapidity with which it developa 
when once entered, upon. It givea riae to auch ezaaperatlon 
that the inddenta that call for ita exercise are multiplid 
many fold; ita exercise is multiplied in even greater pro- 
portion; and ao the movement goea on, driving the whole 
population to desperation, putting new life into tiie war 
and making ita apeedy termination improbable. Thia ia 
predady what happened in the Boer War. The buildbigB 

•iA. OoBtti DoyK ThB War ia Soatli Afrim, p. Va 
MpluL Bipa% ISai, VcL 47 (ed. -SSI). 



WAMM, mmvos. 149 

bnrnt in Oetober, 1900, reaehed the nvinber of 189. In Ko^ 
▼«niberitinere«Ndto226. Thk was intol«raU«. ftarouMd 
pnUie Mntiment evefywhere, and the Boera, atrengthened 
by the reernita it bnmi^t^ regained territoiy on eveiy hand. 
The Britiah anthoritiea eatte to realiie thia and on Norember 
18, 1900, Lofd Boberta kaned the following Plrodamation: 
''<Aa there appean to be aome miaanderatanding with ref- 
erence to burning of ftana and breaking of dama, Com- 
mander-in-Chief wiahea the following to be tinea on whiA 
general offlcera commanding are to aetx 

Tho practice practtcaOj atiqnHl ^ ^ proclamalhm eC 
Lord Boberta^— ''No farm ia to be burnt except for act ef 
treacheiy, or when troopa have been fired on from premp 
iaea, or aa puniahment for breaking of tdegraph or rail- 
way linea, or when they have been uaed aa baaea of opera- 
tiona for raida, and then only with direct concent of gen- 
eral officer commanding, which ia to be given in writing. 
The mere &ct of a burgher being abaent on commando ia 
on no account to be uaed aa reaaon for burning a houae. 
All cattle, wagona, and food atnib are to be removed from 
all farma; if that ia found to be impcaaible, they are to be 
destroyed, whether owner be preaent oi^ nof** 

The effect of thia proclamation waa instantaneona. Fhmi 
226 farma burnt in November, the number fell in December 
to aiz. But the harm waa done. IVom thia time on the 
war waa characteriaed by bittemeaa addom witncaaed in 
modem warfrrcu 

Tho dUBculty in maintaining linea of ocBimuwIfiation , 
One of the great difficulttea of the war waa the maintenance 
of linea' of communication. With that end in view. Lord 
Boberta iaaued the following proclamation June 16^ 1900: 

''Whereaa, amall partiea of raidera have recently been 
doing wanton damage to public property in the Orange 
Biver Colony and the South African Bepublic by dertroy^ 
ing railway bridgea and culverta and cutting the td^m^ 
wirea, and whereaa auch damage cannot be done without 
the Imowledge and connivance of the hmi^boring inhab- 
itanta and the principal dvfl reaidenta in the diatricta con- 
cerned; 

''Now, therefore, I, nederick Slei|^, Baron Boberta, etc, 
warn the aaid inhabitanta and principal dvil reddenta^ that^ 



MFuL ft9M% laOO^ VdL sa (ed. -OS), p. OL 



180 XHS WAS Dl SOOTH AIHOA. 

whenerer poblie property it dcstrojed or injived in the 
maimer epeeiiled above, thej will bo held reeponaible tor 
aiding and abetting the pffendere. The honeei in the vi- 
einitj of the plaee where the damage is done will be burnt 
and the principal dvil residents win be made prisoners of 



In another prodamation three dajfs later was added the 
foUowingt « 

''1. The lirineipal residents of the' towns and distriets 
win be held jointly and severally reqwnsiUe for the amoont 
of damage done in their distrieta. 

''2. In addition to the payment of the damage above 
mentioned, a penalty depending upon the eirenmstanees 
of eaeh ease, bnt which wiU in no event be less than the 
sum of 2s. 6d. per morgen on the area of each fton, wiU 
be levied and recovered from each bunker of the district 
in which the damage is done in respect of the land owned 
•or occnpied by him in snch district Forthcrmore, aU re* 
ceipts for goods requisitioned in snch district on behalf 
of the militaxy authorities wiU be cancened, and no pag^ 
ment whatsoever win be made in respect at the same. 

''8.' -.As a 'farther precantionary measore, the director 
of milita^r railways haii been anthoraed to order that one 
or more of the residents, who wiU be selected by him from 
each district, shatt from time to time personally acoompany 
the trains while traveling throoi^ their district 

''4. The houses and farms in the vicinity of the plaee 
where the damage is done wiU be destroyed, and the resi- 
dents in tiie neighborhood deslt with under martial law."^ 

In the first place, it is to be noticed that the destructioh 
of lines of communication is here treated as an offense 
against the laws of war; and, insofar as it is done by non- 
cmnbatants, this is correct; but, insoCsr as it is a part of 
regular military operations, it is not In the earlier proo* 
lamation, Lord Boberts speaks of ''smaU parties of raid- 
ers,'' but he does not aflirm that such parties did not sat* 
isiy the conditions of belligerent, and in many cases we 
have good evidence that they did. In such cases the treat- 
ment of the destruction of the raflways as an offense against 
the laws of war was not justifiable. 

mum;, p. 10. . 



. Homon OH nAnm 151 

Tte iiM cC boUUm m tnlns to protoel i wimnmnin a tl i imi i 
—The third proykion of the eeeond prodamation intio- 
daeed the preetiee of placing hottagetf on railway traina 
for their proteetion. If there had been no Boer f oroee in 
the field enttUed to belligerent righta, thia BMaanre might 
have been jmtified ae a preventatire neaanre; bnt, while 
there were eneh foreee in the field having a perf eet ri|^t 
to tear up railroads, the meaenre waa one analogone to 
placing priionera of war where the enemj la liable to at- 
tacky 80 that, if he does attack, his f ellow-eoiintiymen most 
suffer first The objeetiona to thia praetiee as to trains 
have already been noted in treating cdF the f^aneo-Oerman 
War. Evidently the attention of the British forces was 
called to them, and a little over a month later this section 
of the prodamation was repealed. It wa% however, again 
• resorted to by Lord Kitchener late in the fallowing year. 

Destmetion of .raOroada poaldied by tta Ininiliig of 
fums in the vlfiinily.— The burning of fsnns for the canses 
indicated in this, proclamation waa one of the f eaturea of 
farm burning that the Boers most bitterly ecwnplained &L 
Collective responsibility of any kind for acta of Individuala 
over whom a community has not effective ^tmtrol is- harsh 
enoni^ even where the penalty is less severe thafa bum- 
ing, but it was especially harsh in this case, where the do- 
struction of the railway linea was often a perfectly proper 
act of war. 

Oelleettve respomdbllfty.— Where the destmetion waa the 
work of noncombatanta, however, it would aeem to' have 
been proper to hold the eommunitiea to aome degree of 
eonective responsibility, il^ aa Lord Boberta daimed in hia 
I»odamation of June 16^ it could not have been "dene 
without the knowledge and eonrnvanee of the neif^boring 
inhabitants and the prindpal dvil reddenta in the districia 
concerned." In such a case H did not eoma within the 
providons of The Hague RegnlatJons aa to ''individual 
acta for which th^ (emamunitiea) could not be regarded 
aa eoDeetlvdy responsible." 

The Oonee n tr a Uon Oampa^— This brings us to the eondd- 
erstion of the qfuestion it the Goncentratieif Oampa, the 
number of whose inmates increased from 20^000 at the end 
of the year 1900 to more than 100,000 at the end of laOfW 



^U^/K The War la BosA AiOm^ f. U. 



I 



181 THS WAB Dl BOOTH ATUOA. 

I The Britiflh poaitiaB with regard to them is beet given in 

i the language of Lord Kitchener's letter to Mr. Brodriek, 

of December 6^ 190L ' It was, in part, as foUowsi 
i Lord Xttehener's Jnstlflealien of ttuoL— ''Nnmeroos ewi- 

ti plaints were made to me in the early part of this year Ij 

V -surrendered burghers, who stated that after they had laid 

l| down their arms, their families were ill-treated and their 

stock and proper^ confiscated by order of the Command* 
anti-General of the Transraal and Orange nree State. These 
acts appear to have been taken in consequence of the eir* 
] cular dated Boos, Senekal, Gth November, 1900, in wUeii 

^ the Commandant-General says: ''Do eveiything in your 

j| power to prevent the burghers laying down their arms. I 

will be compelled, if they do not listen to this, te eonilseate 
everything movable or immovable, and also to bum their 



i 



'5 



"In addition to the families of surrendered burghers who 
either came in of their own accord, or were brougiit in 
solely to save them from the reprisals of the enemy, there 
are three other classes represented in our refugee camps: 

"(a) IVtmilies who were reported to be engaged in m 
regular system of passing information to the eneniy. 

"(b) Families from fimns which were constant^ used 
by the enemy as places from which to snipe at our troopa. 

"(c) Families from farms which were used as ewi- 
missariat depots by the enemy. . * * * 

"The majority of the women and children in the refugee 
camps are those of surrendered burghers; but neither th^ 
nor the wives of prisoners of war, nor of men on commando, 
make any serious complaint, although they are constsafly 
being invited by comminions, inspectors, etc, to say some-* 
thing, however little it may be, against the arrangementi 
made for their comfort, recreation and instruction.'*'* 

Where a whole population engages in warfsre the dis- 
tinetlon between combataal and nonoombataal vanishes^ 
To the majority in them, as Lord IBtchener states, the 
camps established by the British authorities were truly 
camps of refuge. To a minority, however, there can be 
i no question that th^ were camps of concentration. But 

Iit has always been an accepted principle of war that, if 
those who are ordinarily noncombatants engage in hostDi- 

Bool^ 190^ VoL es (ed. SCS), p. IIIL 



THS OOVCSKTIAXIOK CAMft. IM 

tM% th^ caanot daim the privilefM of noneonibataiite. \ 
The Been felt thegr were fighting for the lacred came of 
liber^. If th^ were willing to aoffer mmrtyrdom in that 
eanae^ all tumor waa due them, but when in order to eon- 
tinne the atmg^e, thej found it no e e ie ar y to reaort to 
gneriUa fighting, Uma involving the whole people in the 
war, thegr had no lii^t to eomplain when the Britiah an* 
thoritiea made priaoneEa of thoae who had eeaaed to be non- 
eombatanta. 

The aafferfnga of thoae who were not hronghl into tta 
eaaq^ woiae than the aaffering of thoae who were hroogkl 
in.r-Indeed, General Botha, in a letter to Mr. Chamberlain 
of November 12; 1908, laya apeeial atresa on the anff ering 
of thoae who were not brought into the eoneentratioa 
eampa. He aaid: **'Mj remark at Paria abont the anffer- 
inga of the women and ehEdren, whieh yon quote, haa ret- 
erenee more partieolariy to thoae remaining ontaide the 
eampa, who had their dwellinga with the fnmitare, food, 
and aU that thc^ eontained, burnt or deatroyed by Britiih 
troopa; their horda killed or removed, and they themaelvea 
left deatitate on the veldt. Thcae were eertainly anffer- 
inga.'*'* It waa eertainly a mercy to bring women and 
children aneh aa theae, who had had their proviaiona de- 
atroyed aa m meana of war, within the concentration eampa. 

The oondnot of the Coneentrmtlon Oampa<-The eondnel 
of thcae eampa haa, however, been aeverely eritieiBed. But, 
after carefol invcatigatlon, it may be atated that the 2ol> 
lowing extract from the letter of Mr. Chamberlain to Gen- 
eral Botha, to which the letter from which the laat eztraet 
waa taken waa a reply, aoma np aceorately the tme facta 
with regard to them: ''No one deplorea more than the 
Britiah Government the high mortality in the eampa dorw 
ing the epidemic of meadea and pneumonia, but nothing 
waa apared that money or adenee eoold afford to reduce it, 
and for the laat aix montha the mverage total death ratea 
in the eampa have been about 21 per IfiOO per annum."* 

The threat of hauiihment firam BouHi Afrtea.! One of 
the laat important meaaurea taken by the Britiah authoti- 
tiea waa embodied in the prodamation dated Auguat 6^ 
1901, which, after atating that regular warfare had 

»P)uL V^m, 1901; VdL tC (ed. Uia), p. T. 



IM THX WAS Dl SOOTH iniOA. 

dedired that all Boen not rarrenderinf before the 10th 
of next September should be permanently banished from 
Sonth Afiriea, and that the eost of the maintenance of the 
families of sll burners lighting thereafter shoold be re* 
eoverable from them and shonld be a eharge on the movable 
and immovable property in the eolonies.^ 

A most nnf ortunate one^— This proclamation is Tery much 
to be regretted. The attitnde taken toward the Boers for 
their eontintling the straggle, and the refosal to recognise 
them as any longer entitled to belligerent rights, thoni^ 
in many ways the Boers were in a better position than 
th^ had been a year earlier, are explained bat not justified 
by the strain which the continnanee of the war had cansed 
the British aathorities. Especially was the threat of ban- 
ishment for life reprehensible. Am a matter of &ct it was 
noTcr carried oat. Its fate was settled by the following 
tdegram of May 27, 1902, from Lord Milner to Mr. Cham- 
berlain, which reflects the unf ortonate attitude which the 
British aathorities finally assamed. 

Bs approval by Lords Ifilner and Kitehener*— ''Beferring 
to yonr telegram of 26th May, no promises have been made 
or asked for. The Boers are no doabt aware that legisla- 
tion is reqoired to give effect to banishment, and feel that 
we woold not introduce such legislation if Article 8 of pro- 
posed agreement is accepted. This is obvious, and it fol- 
lows that if surrender comes off banishment will be pas- 
sively dropped. I was in favor of banishment proclama- 
tion and was prepared to go even farther, as I thoui^t, 
and I still think, that resistance of Boers had ceased to be 
legitimate at that stage, and that it was our duty to im- 
pose special penalties upon those responsible for adoption 
of guoilla methods by which the country was being ruined 
and by which alone the struggle could be kept up at alL 

''So ftur from r^n^tting the proclamation, I believe it 
has had great effect in increasing the number of surrenders, 
and in inducing the Boers still in the field to desist from 
farther fighting. That has certainly been Kitchener's opin- 
ion, as he has always pressed and given the greatest pub- 
licity to the lists of banished leaders, but it would be a 
mistake if the Boers now give in in a body and live as 
British subjects to continue a proscription which would only 

«iFuL Bipcn, ISSl, VdL 47 (ed. 7«), p. il 



keep up bitter f eding and tend to prevent tlie tomxtaj from 
■ettting down. 

''Kitchener agrees entirdj."* 

Boser nprlalng in CMwa.p"Wliile the South African war 
was still in its earUest stagesy there broke oat in CSiina 
the Boxer nprisini^ followed by the shooting of the Oerman 
Ambassador, and the aiege of the legatioDs. In bidding 
fkreweU to the troops which he sent to avenge the ninr> 
der of his representatiTe, Empwor William is reported to 
have bade them give no qoarter to their enemies, and make 
their name a by-word for eentnries to eome.^ As this was 
a measure of reprisal and no very definite limitations have 
yet been developed with regud to repnsalsy this cannot be 
said to have been m violation of the laws of war; but it 
takes US back to the stem measores of CSromweU, which 
many had supposed were relegated to the memories of a 
less humane age. Other measures taken during the cam- 
paign in China can likewise be justified only as part of the 
scheme of reprisals, and cannot serve as precedents for the 
conduct of ordinary warfsre. 

The war In the PUUpptnes^-The prindpsl feature of 
the war in the Philippines was the establishment <tf nones 
of refuge, outside of which supplies of eveiy kind were 
either removed or destroyed. The condition of aflkirs much 
resembled that in South Africa, although in maqy respects 
th^ were much worse. An irregular guerilla warfare was 
carried on, friendly populations were terrorised, and out* 
rages of every kind were frequent. The only apparent 
remedy for this state of thingi was to draw m shup line 
between territory which could be effectively policed and 
that which could not be, and then to destroy the provisions 
in that which could not and thus reach the enemy throng 
their stomachs. Aecordini^, the inhabitants were invited 
within the protected area, and cared for there while the 
territory outside waa ravaged. There were no eoneentra- 
tion camps in the sense that inhabitants were forced to 
come into them. The results were almost instantaneous. 
In a few montha order waa restored and the inhabitanta 
were able to return to their 



4BPUL Pltpa% leO^ V«L es (ed. ICSS), p. % 
ttAoBiud BcgMv, ISCQ^ p. SSS. 

I Dim; Ko. l; S7th Ooi^ Bd Bmkm, » tSl-SSC 



156 SHs Bmso^APAxm wii. 



GHAPTEBXrr. 

Onffartak of hortDWw.— The world was watehing witti 
eyasinereasing interest the apparenfly inevitable approaeh 
of the emifliet between Bossia and Japan over liuehnria 
and Korea when it was electrified by the news that about 
midni^t of the 8th of Febroaxy, 1904, the Japanese had 
made m torpedo boat attack on the Russian fleet in the enter 
harbor of Port Arthur with a probable loss to the Russians 
of a first-class protected emiser and the two most powerful 
battleships of the fleet But no formal declaration of war 
had yet been made by Japan, nor was any made until the 
tenth and the admiration for the brilliant and dash of the 
Japanese was even exceeded by the indignant clamor of 
Russian partisans who claimed that the attack had been 
m violation of international law in that it had been treach- 
erous and that it had been made prior to the formal dec- 
laration. 

-^ A dsdaratton not a pi tr e qnl stta— There was nothing in 
the second charge as the law with regard to formal declara- 
tions at thebeginning of the century* had not changed, 
and this was conceded by F. de Martens, the ablest of 
Japan's critics.' France had been especially punctilious in 
dedaring war in 1870, and it was urged by some writers, 
principally French, that the practice of the preceding fifty 
years had made a declaration a prerequisite to hos^ties, 
but this is disproved by the cai^fol study of IL Dupuis . 
ef the wars of that period.* In view of the fMts he brings 
out, the contention that modem practice required a prior 
declaration must have been based on a conception of dec- 
laration other than that generally accepted. The Institute 

i It te a natter of ngrat tint boUm of the poblieatkB of La Gvcm 
BoMOnJapoMdM av Point do Vao OontfawBtal «t fe DroH Intnoatkaal, 
Vf NofM Aris»> iwelMd tha writer loo lata to allow Urn to ] 
if it. 

• 8waiV»«,p.4l. 

tllB.ail.LP.,14S. 

«lSB.a.IXLP^7iSw 



OFEVivo ov Bosnuim. * 157 

of Intematioiial Law nibfeqiieiitly ezpreoed tha opimon 
tliat war oaght not to be oommeneed without a dedarataon 
or an nltimatnm, with conditional deeUration, and the 
Seoond Peace Conference embodied that opinion in a Con- 
vention,' but neither the one nor the other waa acting aa 
an exponent of the poaithre law. 

Bvt treaehny nnlawfuL— Howerer, eren anch writera aa 
Bynkerahoek and Ward, who had done more than any other 
two men to incorporate into legal literatore the doctrine 
that m previona declaration waa nnneccnary, bdiered that 
before reconrae coold be had to arma demand of aatiafaction 
for the injury complained of waa neccnary and a denial or 
delay thereol . It ia reqniaite, therefore, to determine 
whether Japan lived up to thcae eonditiona. 

DI|domatio eventa leading np to the war«— Boaria had 
deprived Japan of what the latter f dt to be the froita of 
her war with China, and inatead of evaeoating lianchnria 
aeemed to be atrengthening her hold there and to be at- 
tempting to get a foothold in Korea. Thia Japan fdt to be 
in violation of what ahe eonaidered her apodal rif^ta in 
the former and her preponderating xighta in the latter, but 
apparently ahe hoped to protect her intereata without t^ 
aorting to arma and ao commeneed negotiationa 1^ the de- 
livoy of a note Angoat 12, 1908. To thia note Boada re> 
plied October 8. It ia anffident to aay that Bnaiia wiahed 
Japan to recogniae Mandraria aa ontdde her aphere of ii^ 
floence and to engage not to take advantage of her priv- 
ileged podtion in Korea to gain a atrategical foothdd there. 
A aecond note of October 80 waa anawered on December 11 
with no indication of any conccBdona on Bnadali part, and 
a third not$ verbah of December 28, on Jannaiy & A 
laat effort waa made on Jannaiy 18, 1904, when Mr. Knrino, 
the Japancae repreaentative at St. Peterabnrg^ waa inatmeU 
ed to ddiver a fourth note to Count Lamadorfl^ with m t^ 
queat for an early reply. From January 28 on, Mr. Kurino 
.made at leaat four attempta to get a reply or at leaat aa 
aamrance aa to the date by which a reply might be ex- 
pected, but, although the datea given out by the Japancae 
and Bunian authoritiea reapectivdy are aomewhat eonflieU 
ing, it aeema dear that towarda the end of January the 
Japaneie came to underatand that they mi|^i hope for a 

•BmIn/^p. loa. . 



! 



1S8 TBM Busao^APimi wii. 

reply bj VthtOMXj 2,* but on prening tor a more definite 
aMuranee, were told that the rq>l7 would be lent ae aoon 
ae poMible, bnt that no ezaet date eonld be given.* nii 
was the diplomatie ntnation on the first of Febroary. There 
waa eertainlj strong ground tor contention on the part of 
the Japanese that the satisfaetion of their daims had been 
delayed, bnt whether these iactr in themselyes woold hava 
justified the Japanese in commeneing hostilities it is un- 
necessary to'deeide as the importance of the diplomatie 
erents waa soon overshadowed by the steps taken by the 
Russian military authorities on land and sea. 

mutary wd naval tventa^-On the 21st of JaniAay two 
battalions of infimtry and some of the artilleiy were sent 
from Port Arthur and Talien to the northern frontier ef 
Korea; on the 28th, Viceroy Alezieff ordered the Russian 
troopa next the Talu to be placed on a war footing and 
on February 1, the Governor of Yladivostock asked the 
Japanese Commercial Agent at that port to prepsre to with- 
draw the Japanese residents to Habarofsk, as he waa ready 
at any time to proclaim martial law under the instruetionB 
of his government.* About the same time the Russian Med- 
iterranean fleet under the eonfmand of Admiral Wirenius 
left Sues for the fsr east* But the deciding fsetor seems 
to have been the sailing ef the Russian fleet from Port 
Arthur. For three days from the 81st of January to the 
8d of February, the Russian ships were being towed from 
the inner to the outer harbor of Port Arthur, and on the 
latter date, with the possible exceptian of one vessel, all 
the best of the Russian ships put to sea.** 

War. Port Arthurir-On the same day the members of 
the Japanese Cabinet and of the Privy Coundl held a con- 
ference. No reply had as yet been received from St Peteia- 
burg, althoui^ there had been reason to expect one by 
the 2d and the sailing of the fleet from Port Arthur under 
the drcumstancea could only be looked upon as a hostile 
measure. On the following day the Russian fleet, twenty- 
aix ships in all, waa seen off the Shantung promontovy 

I tKwiBOtoKonBn, JaB.28,I9M,421laBoriUl)VcaMtiqii%SSS. 

V KwfaM to Konora, VAi 1, 1904, IM. 



tRtp^if the 

fw ssa. 

• UwM^p.flL 

p.4S. 



onvuio ov Kosnuim. ^ IM 



between Port Arthur and the Japuieee eoast*^ Thk 
the 4th of February. The aame day another eonf erenee 
was held between the membera of the Cabinet and Fmj 
Conneil, thk time before the throne, and the.remilt waa 
war. On the following afternoon, the Sth, at 8 p. iki. two 
notes were telegraphed to Mr. Enrino, the one farealdng 
off diplomatie relationa, the other terminating the negotaap 
tions and declaring that ''the Imperial Government t^ 
serve to themselves the ri^t to take sneh independent ao- 
tion aa they may deem best to consolidate and defend their 
menaced position, as well as to protect the acquired rights 
and legitimate interests of the Empire."" Shortly after- 
wards orders were sent to Vice-Admiral Togo at Sasebo 
to go in search of the Bossian fleet, and he sailed from 
that port on the following morning, the Gth, at 7 o'doek.** 
Two hoars later he seised the Bkaieriiia^au^ a ship bdong- 
iog to the ydnnteer Fleet Company, of Boasia.*^ This was 
the first hostile act of war. He then proceeded to Port 
Arthur and abont midnii^ of the 8th and 9th sorprised 
the Russian fleet in the outer harbor. The Japanese torpedo 
boats succeeded in holing the two most ix>werfnl battleships 
of the Russian fleet, besides a ifarst-dass protected eruiser, 
thus inflicting incalculable damage to the fleet^ 

Attack at Ghemulpo.— Earlier on the same day a de- 
tachment of the Japanese navy under Admiral Unu, ao- 
companied by transports, had arrived off Chemulpo^ and, it 
is reported, had been flred on by the old unarmoured gun- 
boat KarUUf which had then run for the harbor te jdn 
her consort, the Variag, m flrst-dass protected cruiser.** 
Early the following morning the neutral wandiipa in the 
harbor received notice from the Japanese commander that 
unless the senior Russian naval ofllcer complied with his 
demand to leave port before 12 o'clock to keep away from 
the scene of the action, which would inevitably follow 
within the port, but which he would not ecmimence before 
4 o'dock. The commanders of the Ftaich, British and 



u The irar hi ilM Vkr But— B^ the imitaiy OoTTCipQaani «C Iks 

f* 40. 
uAMkawa, p. S4SL 
i> R^, ZIV R. a JX I P^ SU I TiWhMM, ( 

14 ^ " ' 



uTimM Silonv m. 40. 



t«AM.^i 



160 XHs BUBao^APJkirm wiB. 

Italian wanUpi protested agminst the Tiolatioii of Koroaa 
neatralityy Imt warned the Rnaaiaw oommander that it ho 
■hoald not eomply with the Japancae demand* th^ would 
be oompdled to leave.^* Aeeoidin^ the Bnnan ahipa 
sailed out of port mboot noon, but after an engagement 
of thirtj-flTO minutea at from 5,250 to 9,800 yards retomed 
to the harbor." It waa decided by the Bossian commander 
that it waa nsdess to renew the engagement, and so the 
erews of the Tessds, inelnding the wounded, were remoTed 
to the British, FVeneh and Italian warship^ the f orMi 
waa blown np and the Variag set on Hre and snnk.>* 
Formal Declaration of War waa made on the fallowing 
day, the 10th. Besides the acts of hostility prior to the 
Dedaration mentioned abore, there were four other mer- 
chant ships seised in addition to the <me, the seisure of 
which had marked the opening of hostilities.** 

Oomment— Extended comment on the aboiro facts is not 
necessary. Whether the delay in the reply to the last 
Japanese note would in itself hsTc jnstifled the oommeneo- 
ment of hostilities or not it is dear that when considered 
in connection with the militaxy measures taken by the 
Bossian mnthorities, and especially the sailing of the Kia- 
sian fleet, it not only 'justified them, but in the case of a 
highrspirited and powerful nation as Japan prored her- 
sdf to be, rendered any other coarse almost ont of the 
qnestion. It was not to be expected that Japan woold 
wait for a reply to her note until her shipping had been 
seised or some strategical advantage gained. Bossia made 
a hostile demonstration, and she had nothing to complain 
of when Japan took it at its face value. 

Ohaiges made by Iha Russian Oo?aramenk— It were un- 
necessary to continne the subject further if it were not for 
the direct charges of bad ftdth made by the Bnssian Got- 
emment, the reply by the Japanese GoTemment and the 
r^oinder. These constitnte the only serious indictment 
of the Japanese, and if substsntiated would have reflected 
materially on the Japanese irrespectiTe of the question of 
the commencement of hostilities prior to a dedaration. 

if For. ML (1904), pp^ Til* ML 

MTfaMS BfalMy, p. mL 

»*Vbr.Bd. UM«),^7aL 

••B^, 14 B. a IX I. P« 3401 TikdMuH ^ TfL 



OFnrmo ov Boenuim. " 161 

To undenUiid them, it will be necesBary to take up the 
thread of the negotiations where we dropped them, with 
the refusal of the Russian authorities to fix the date for 
the reply to the Japanese note. 

The breakinff off of diplosaallo relalkos*— About 8 
o'clock on the eveninf of the 4th of February, Mr. Knrino 
was requested to see Count Lamsdorll^ and was told that 
the reply to the Japanese note had just been sent to 
Viceroy Alezieff to be transmitted by him to Baron Boson at 
Tokio, after making such local changes as he felt to be 
desirable. To save time it had also been sent direct to 
Baron Bosen. The general nature of the reply was not 
indicated, but from the expressions Count Lamsdorff gave 
of his personal opinion it does not seem likely that it dif- 
fered Titally from ih% previous repUes.*^ At 5:05 o'clock 
the following morning Mr. Kurino telegraphed the sub- 
stance of his interview to Baron Komura and the telegram 
reached Tokio mt 5;15 that aftemoon.** As we hAve al- 
ready seen, three hours earlier notes had been td^n^hed 
to Mr. Kurino breaking off diplomatic relations and re- 
serving io the Japanese ''the right to take such indqm^ 
dent action as they may deem best to consolidate and do- 
fend their menaced position, as well as to protect the ao- 
quired ri^ts and legitimate interests of the Empire." 
Mr. Kurino communicated them to Count Lamsdorff at 
4 o'clock on the afternoon of the 8th. 

Japan did not oonsldar Iho war to have o o imnmo e d wftih 
Iho breakinff of diplomatio relational,— The above reserva- 
tion has m special importance from the .&ct that when 
the daim was made that Japan had violated international 
law by commencing hostilities prior to a declaration, it 
was UMd as an argument ad kominem to confound these 
ciatics as amounting in itsdf to m declaration. And thii 
has even been urged in support of the contention that 
the practice of the last fifty years has made a prior de^ 
laratio)! obligatory. But whatever strength there may be 
in such an argument, it seems dear that it was but an 
after thought on the part of the Japanese Government and 
that die justified her conduct mainly on the grounds al- 
ready giTcn. The sdsure of at least two merchant sh^ 



ttlWL 

ai 



had oeeorred prior to the handinf of the note to Count 
Lunadorff and tho Hi|^er Prise Court in tho eaao of tho 
Bhaimeroilau lield that the war had eommeneed nrfien the 
intention to make war waa earned into aetion, that 1% with 
the aailing of Admiral Togo's fleet** 

Tho Japaaeae note^ howerer, waa delivered nuve than 
two daja prtor to the attack at Pert Arthnr«— This note 
way, howerer, a oomplete answer to the Bossian eharge 
that ''without previously notifying ns that the rapture 
of snch relations implied the begixming of warlike aetion, 
the Japanese Government ordered its torpedo boata to 
make m sodden attack on onr sqoadron in the outer road- 
stead of the fortresB of Port Arthur/'** and the Japanese 
Government contented itself with replying that the in- 
dependent action she had reserved to herself in bresking 
off dipl<miatic relations implied ''all, including^ aa a mat- 
ter of course, the opening of hostile sets. Even if Russia 
were unable to understand it, Japan had no reason to 
hold herself responsible for the misunderstandings of Rus- 
sia."** As the note waa deliyered to Count Lsmsdorff 
during the afternoon of the 6th and the attack at Port 
Arthur did not occur till the midnight of the 8th, there 
was aa interval of more than forty-eight hours, even sub- 
tracting the difFerenee in time of seven hours, be t w e en 
the warning and the attack. Even the convention drawn 
up at The Hague Conference requires no such ddsy. That 
Russia did not consider the note m warning aeens ex- 
plicable only on the ground that the strength and spirit 
of Japan were greatly underrated. Thia bringi us to the 
charges of treaiBherous interference with the telegraph 



Ohaifes of treacherous interference with tdegrapli i 
ioe^— In the dreolar of February 22, addressed by Count 
Lsmsdorff to Russia'a representatives abroad, he charges 
that the Japanese Government "with m division of its fleet 
made a sudden attack on February 8, that ia, three days 
prior to the dedsration of war, on two Russian warships 
in the neutral port of Chemulpo. The commanders of these 
ships had not been notifled of the severance of dijdomatio 



I p. ML 
iflM^p^SSC 



omMtMQ ov fiotnumi. itt 



rdatkniiy as the JmpuMta malkiondj ttoppad the ddiToy 
of Boniaa tdegmni by the Dtniih cable and dea treye d 
the tdegraphie emnmiimeatkm of the Koreaa Govem- 



Oa ICareh 9 the Japaaeae GoTemmeiit made the fbUowing 
reply: ''The Imperial Goremmeiit dedare that the Bna- 
aian allegataon that they stopped the ddivery of Bnsnaa 
tdegrams by the Daniah cable and destroyed the Korean 
GoTemment'a tdegraphie communieatioii la wholly untme. 
No sach aeta were done l^ the Imperial Govemment*'*' 

Bussia r^oined on the 12th as follows t '' Japanli denial 
of malidooa interference with the traosmisdon of Bnsdan 
tdegrama over the Danish cable eannot be snstaineii. A 
tdegram to Baron Boaen (then Bosdan Minister to Japan), 
at Tokio^ sent from St Petersbnrg, Fcbroaxy 4^ waa not 
ddivered till the morning of FAroaxy 7. That dday did 
not oeeor on the Siberian line, aa waa ahown by the fast 
that a reply to a tdegram from Viceroy Alexieff, sent at 
the same time, waa recdved the same day. Thmfore it 
ia condnsiTe that the Bosen tdegram waa hdd by the 
Japanese end not ddivered for two days. Oommnnieation 
with IL Pavloff (then Bossian Minister to Biirea) by the 
Korean tdegraph ceased in the middle of Jannaiy. Aa the 
Koreans were enjoying friendly rdntions with Basda» there 
is good ground for bdieving that the intermption waa 
dne*to the Japaneae. Thereidfter M. FaTloff nsed a mail 
steamer or a apodal wardiip to oommimieate with. Port 
Arthur. The Minister of Bnsda at Seonl, Febmaiy 8^ there- 
fore, knew nothing of the diplomatic raptnre."* 

The oommnnieation by the Korean oaUe had eeassd fhrse 
weeks befece hostOMss eommenoed^With regard to the 
interference with the tdegraphie commnnicationB of the 
Korean Government we haTO the podtiYe denial of the 
Japanese Government against the ''good gronnd for be- 
lieving" of the Bosdsn. But If the charge had been at 
all substantiated it would not have involved J^ian in a 
treacherous opening of hostilities aa .communication by 
tdegraph had ceased three weda before they 



,p.SSSL 
irAMkft^rm,p.S6S; TkkakMU gifw fka Site off fldi np^r ■■ 

»p^ SSL 



16A THl BUBMHJAFina WAR, 



Am io itm eharge that the mttaek was made in a naolnl 
porty that in itadf could not hava anrpriaed BiiaBia» aa tha 
naa of Korea for. atrategie pnrpoaea waa one of the Tery 
thinga that Japan waa inauitiTig npon in the negotiationa 
that led iq> to the war. It waa one of the objeeta of the 
war, and like moat eanaea of ware and aaanmptiona of 
power orer weaker peoplea, mnat be judged of by other 
atandarda than thoae of international law. 

Xbe nendeliwj ef Oe Soaen tdegram and the ehaige 
in the pnrported estrmeta from a Bed Bodb— The nond»» 
lirery of the Boaen telegram^ therefore, remaina the only 
baaia for the contention that the Japaneae GoTemment 
waa goOly of malieioaB interference with the telegraph 
aer^ce at the opening of hoatilitiea, but from the f^et that 
thia telegram waa aent two days h^fan the breach of dip- 
lomatic relationa it ia dear that it grrea no support to the 
charge made in Ckrant Lamadorft'a circolar of F^broaxy 22^ 
that it waa in part rcaponaible for the &et that the com> 
mandera ct the ahipa in Chemnlpo harbor were not notified 
of the breach itMlf. No farther attention to the nond»» 
livery of thia telegram would be neceaaary if it were not 
that it haa an apparent connection with the charge made 
in what porported to be eztracta from a Bnaaian Bed Book, 
that the Japaneae Govemment had hdd np the reply to 
their laat note nntil after they had broken off diplomatic 
rdationa.** Thcae citractB were denied all authority bj 
the Bnaaian GoTcmment and the Bed Book, if ever iaaned, 
aoppreaaed.** Bat aa thia charge ia the only thing that 
giYca any importance to the nonddivcry of the Boaen tel»» 
gram, and aa it throwa lif^t on the conflicting atatementa 
aa to the date of the rei^ of the Banian aothoritiea to 
the laat Japaneae note, it deaerrea paaaing notice. 

▼«8lona ef tihe aame ateiy^-That the nonddivery of the 
Boaen tdegram and the charge in the purported eztracta 
are veraiona of the aame atory can hardly be queationed. 
They agree in their main pointa, and there would be litde 
or no duuQce for difference of opinion were it not that it 
ia not atated in the rejoinder of March 12 that the ddayed 
tdegram waa the reply to the Japaneae note and that the 
date of the tdegram ia given aa the 4th of FUmmiy, 



Ma; 

••Biy. IS R. a Si I; P« < 



omnira ov Homum. 165 



in the oflleial Bonian statement of February 90 
the date of the reply is given as the 8d." Very little im- 
portanee, howerer, is to be attaehed to this disereiMUMy 
in dates, as it is stated in the purported eztraeti that the 
telegram eontaining the reply was the only one of all the 
doeoments that waa nndated» while a general inaeeoraey 
as to dates is shown by the faet that the Russian statements 
of Febroary 20 and 22 gave the date of the Japanese Dee- 
laration as the Uth, whereas the eonreet date waa the 10th. 
That the reply waa sent on the 4th is farther borne out 
by the faet that Mr. Knrino reported to his snperiors in 
ToUo that Count Lamsdorft told him on the evening of the 
4th that the telegrams eontaining the reply had just been 
sent" 

It will be taken then, as established beyond reasonable 
donbt, that the eharges in the rejoinder of Ifareh 12 of the 
nondc^veiy of the Bosen telegram and in the supposed 
extraets, of the holding up of the Russian reply are TeiaioDa 
of the same story and that the reply waa sent on the 4th 
instead of the 8d. It remains then to eonsider whether 
there is any foundation for the charge that the Japanese 
held np the note until after the breaking off of diplomatie 
rdationa in order to justi^x their eondnet by a daim of 
dday. 

Any delay in ddiveiring the Bosen td^iram nusi have 
been at most only a few hours prior to the sending ef the 
note to lb. Knilnor— There seems no reason to question the 
Japanese statement that their note breaking off diplomatie 
relations was sent early on the afternoon of the Ml If 
there was any hold up, then it must have been prior to that 
time and subsequent to the sending of the telegram the 
day before. This time must be still further redueed by the 
difference fai time of seven hours between St Petersburg and 
ToUo and the time neeessary for the transmission c^ the 
message. This may be ealeulated at twelve hours as that 
wss the time taken by the telegram of Mr. Kurino from 
St Petersburg to Tokio sent the morning of the Bth. But 
if this twelve hours is added to the time of the sending of 
the reply it makes it extremely improbable that it eonld 
have readied Tokio before the morning of the Gth. All 



«« 



166 THi wonrnhJAFAjnam wam. 



theie could bave ben but m ddaj of m few boon in fbo do> 
lively of the telegram before tbe eending of tbe telegram 
breaking off diplomatic relatione. But even tbie delay woold 
baTO been eridenee of bad faitb on tbe part of Japan if ibe 
bad given tbe delaj in reeeiving tbe Bniirian answer as one 
of bar reasons for going to war wben sbe berself was pro- 
Tenting its deUrery. 

Meet ptdbaUe tbal anj snob delay wendd bava ooeuRed 
al Borl ArUnir.— Tbe statement of tbe Bosnan ease is tbat 
"tbe delay did not oeenr on tbe Siberian line, as was sbown 
by tbe feet tbat a reply to a telegram fhmi Yieetoy Alexieff 
sent at tbe same time was reeeived tbe same day. Tber^ 
fore, it is conehisiTe tbat tbe Bosen tdegram was bdd by 
tbe Japanese and not delhrered for two days."* Tbe rea- 
soning is not very iMmvincing at best, bnt in tbe lifl^t of 
tbe &et tbat Vieeioy Alexieff was to make sneb loeal 
dianges as be saw fit in tbe reply, it seems, witb IL B^, 
tbat it is fur more probable tbat tbe delay oeenrred at F6rt 
Artbnr tbsn tbat it did at Tokio.** Am tbe only (rfBeiai 
ebarge witb regard to tbe nondeliTery of tbe Bosen tele- 
gram is the rather innoeaoas one in tbe rejoinder of Mareb 
12; it mifl^t have been better to bave allowed it to go mi- 
eonsidered nntil the Bnssian Goremment itself bad fathered 
tbe more serions charge, bnt tbe purported exlr a cta from 
tbe Bed Book have bad a certain antbority and tbat mnst 
be tbe apology for tbe consideration of this diarge at alL 

Days ef graoe^— Mention has slready been made of the 
capture of certain Bussian merchant Tends at tbe ontbresk 
of the war. On tbe 9tb of February tbe Japanese Bmperor 
imned an ordinance decreemg that Bussian merdiant Tea- 
sels in Japanese ports at the time mifl^t disdmrge or load 
tbdr cargoes snd lesTc tbe countiy not later than Febru- 
ary 16, that sneb tcbmIs, if proTided with tbe proper cer- 
tificate, diould not be sdied on thenr way back to the 
nearest Busnan port or to a lessed port or to their originsl 
dcstfaiation and that Bussian Tcssds lesTing for a Japanese 
port bctoe February 16 mif^t enter and disdmrge their 
csrgo at once and leaTc the countiy. AD Bussian t c is cIs 
csrrying contraband of war or analogues of contrsbsnd 
were exduded from the benefits of tbe ordinaneeu This oi> 



. fu ML 

MiiB.a])ii.F,( 



mn ov OUGB. 1€T 



dinanee was utxkOj eooatnied l^ the priae eourta and kdd 
not to applj to afaipa leaTing Japaneae porta prior to Fd^ 
maiy S,** and tha latter part of tbe oidinanee only to "aUpa 
of eommeree'* going into a Japaneae port to take on or 
diaeharge a eargo. Aeeordingly it waa held not to ^nplj 
to ahipa fitted out f6r deep^ea fishing and most of the eut7 
eaptnrea were of ahipa of thia eharaeter, nor to boata whiA 
had been aent out to wateh the fiahing boata, bat whieh 
otherwise retained their priTate eharaeter, nor to ahipa hav- 
ing no eargo to diaeharge, nor to ahipa nominallj the prsp- 
ertj of the East China Bailroad Company, bat liable to be 
incorporated into the Bossian na^ in time of war. Nor 
waa tiie ordinance applied to Rnsnan vessels going firom one 
enemy port to another nor from one neatral port to an- 
other.** The time allowed in thia ordinanee, aeven days, win 
be seen to be mach shorter than haa become eastomaiy in 
the wars of the last half-centoiy. The Imperial Order ef 
the Bnssian GoTcmment dealing with this aa well aa oflwr 
qoeationa waa not issaed nntfl Febroaxy 28. It allowed 
Japaneae merchant vessels in Bossian porta at the deelax»- 
tion of war to remain and load their cargoea provided theae 
did not eonaist of contraband of war and provided alao 
that thia period ahoald in no eaae exceed for^-eii^ boon 
from the publication of the order of the local anthoritisa. 
Am the declaration of war had been made on the lOUi, this 
gave Japaneae veastls in Jfassiaw porta at that time twenty 
days frim the declaration of war and aomewhat morei fhw 
that from the opening of hoatilitieB plna the time iaHmk by 
the local anthoritiea to post the Cnr*s order. In length 
of time allowed the Enssian action waa theref oce ifore lib- 
eral than the Japaneae, althoai^ when it came it waa veiy 
sadden. 

Rosslaaa residsBt in Japan.— On the 10th of Fsbmaiy 
the Japaneae Minister of the Interior iaraed instroctioiis 
allowing Enssian aabjecta to remain in Japan daring the 
war sab ject of coarse to each precaotionaiy measnres ss 
mifl^t be necessary on the part of the Japaneae aothoritifla. 
On the aame day the Minister of PabMe Instraetion aA- 
dreaMd a note to the school teachers instracting them that 



mUm MvUm, TUntedd, p. 
MlUy, ZIVILG. aLP.,puS3a,fl« «f.; lor ths IibM— of ths 
Prist Ooeft% M ' 



188 TBM BUBBCMAFiym WllL 



■tadenti thauld be earefnl not to nuuiif est hostility towards 
Bnssian sabjeets. A little over m week later the Minister 
of the Interior Ukewise warned the heads of the Tarions 
Shinto and Buddhist seets that the war should make no 
difference in the freedom of the exereise of their religion 
by the Bossians and that they should call the partieular 
attention of their elergy to these instructions.'' During 
the eouxse of the war scTcral important localities had to 
be subjected to martial law, namely, Nagasaki, the island 
of Tsushima and the surrounding waters, Hakodate and 
Sasebo, but Mr. Akiyama says that to his personal knowl* 
edge there was not a sini^e case of expulsion or embargo 
or eren of restriction of residence or trsTel of Bussian sub- 
jects eren in these localities." 

Japanese residsm In Bussian ierrttoiy^-The continued 
sefi&nce of Japanese subjects in Bussian territory was 
related by Article I of the Csar*s order of Febmaiy 28. 
It authorised all Japanese to remain except those in the 
Imperial Lieutenancy of the Far Bast"* As most of the 
Japanese lived in that district, however, the exception puta 
the rule to a very severe test and there were serious com- 
plaints of the indignities suffered by the Japanese in Man- 
churia and Siberia,^ but Lawrence states that much of the 
cruelty was due to mob violence and to lawless subordinate 
officials, and that Alexieff exerted himself te secure better 
treatment for the refugees so that those who returned later 
spoke of the kindness which they had received.^ In coi^ 
sidering this order of the Csar we must remember that it 
was the Lieutenancy of the Far East that was the theatre 
of milit/Rry operations and not Japan and that the Japanese 
subjects in Msnchuria and Siberia were much more of a 
menace than the Bussian subjects in Japan. 

Sinking of Japanese merdiantmen^— The sinking of a 
Japanese merchant vessel on February 11, and of a Japan- 
ese trading steamer and of a transport on April 25 by tho 
Vladivortock Squadron, excited unfavorable comment, but 
each case was within one of the generally-recogniaed rules 



MP. a. 

. p. IM. 
ttlewnoMb fu SSl 



onouxoBs NOT ana. 109 



where tbe destroetioii of the ehip is allowable. In the fint 
case the sea was veiy loni^; in the second a saperior 
Japanese squadron was in close pioziniity and in the third 
resistance was made by part of the erew and the ▼eisfl 
was finallj sunk by a torpedo. In the first esse the erew 
were taken to Vladivostock and erentnally sent back to 
Japan; in the second they were ordered aahore, and in the 
third that part of the troops which surrendered were taken 
on board the Bossian ships ss prisoners of war.^ In aU 
there appear to have been 21 Japanese Tcssels sunk and 
5 bombarded bat not sonk,^ bat the above cases are tyTpi- 
caL** 

Ihreal to tnal wirdess operators ss spies.— Early in the 
war there arose an incident somewhat similar to that in the 
Franco-German war when Prince Bismarck threatened to 
treat balloonists ss spies. On the 15th of April the Bos- 
sian ambassador notified the State Department that: • ''In 
case nentral vessels, having on board correspondents who 
may communicate war news to the enemy by means of 
improved apparatus not yet provided for by e^dsting con- 
ventionsy should be arrested off the coast of Kwantung 
or within the aone of operations of the Bnasian fieet, such 
correspondents ahall be regarded as spies and the vessels 
provided with wireless telegraph apparatus shall be seised 
ss lawful prise.'*** 

▼aUdJty ef fhrssl.— The ocession of this incident was the 
presence of the Chinese despatch boat flsimiifi in th^ serv- 
ice of the London and New York Times ss near Port 
Arthur as was practicable whence it was sending messages 
in cipher to the British port of Wei-hial-weL^ There was 
apparently no daim that the war correspondents were giv* 
ing information directly to the Japanese. The United 
States Government in tsking note of the Bnssiaw dedara- 
tion expressly refdsed to waive any rifl^t it mifl^t have in 
case of the arrest of an American dtiaen or the seisure of 
an American veseel/' but happily no each esse arose. Un- 



MTUEihaeM, p. tHL 
^Vdr a d«tailad Meoost ef the 
TdnbaiU, Fut m. Chap. I. 
«For. Bd. OMMKfuTK 
«HMkiy, p. 117. 



170 TBM BUMWAFina WllL 



donbtedlj if the oorrMpondenti hftd been gnillj of 
mnnieating with the enemj th^ eonld have been treated 
■a in the enemy eerviee and the ▼ cweli leised aa lawfol 
priie and it is alee clear that the Bnnian anthoritiea had 
a rifl^t to poliee the seaa in the neif^boxhood of the fleet 
in Older to prevent the obtaining of infonnation, but it 
ii equally dear that aa the war correepondenta were not 
'*aeting clandeatindj or under ftlee preteneea'* thejr were 
not ipiea.^ 

Floating ndnei.— During the dvil war General Sheman 
made his fkanons proteat against the planting of explosivea 
along the roads in rear ot the retreating armiea aa mi- 
jnstlfied by the laws of war. An analogooa sitoation at sea 
arose during the Bnsso-Japanese war. A Japanese warship, 
the Hatnue^ waa sonk by what is supposed to have been a 
marine mine on May 15, while cruising ten miles southesst 
of F6rt Arthur and hence on the hifl^ seaa. It is slso stated 
in the Report of the United States Delegation to the Second 
Peace Conference that enormous loss of life and properly 
waa caused by floating mines in the Oiina Sea in the 
vicinity of F6rt Arthur after the dose of hostilities.^* Pub- 
lic interest waa aroused and the demand that andiored 
mines which may break loose from their moorings, shall, 
by the f^t of going adrift, become harmless and that non- 
anchored mines diall become inoffendve within a very 
short time, one or two hours at the longest, after th^ 
have passed out of the control of the par^ who planted 
them"* haa been embodied in one of The Hague Conven- 
tkma." 

Oonvenion ef merdiani s hlpi T he Peterlmrf and Oe 
BnudendL-f An interesting point waa raised during the war 
aa to the convernon of merchant ships into warships. By 
the Treaty of Paria of 1858, Turkey, when at peace, must 
dose the passage of the straita to ships of war of all fbr- 
dgn states unless it may be deemed necessary to open them 
to secure the observance of the treaty itsdf. In tiie Blade 
Sea, however, Bnssia haa what is known ss the Volunteer 
Fleet, nominally owned hj au Associatkm, but alwaya at 

mSm tl ABamh% pfu 7% tSS. 

MIKIL 

n See 1^^ p. ass. 



OOVTBSIOV OV imOHAVT SHU!. 171 

th« dkpottl of tin Minirter of UariM, the fundi of the 
AMoeiatioa bemg derived in most part from the Oorem* 
ment The officers belong to the Imperial naTj, the erews 
are under military diaeipline and ono^third of them mosl 
have lenred in the Aetivo Fleet b timea of peaee thqy 
are need for the transportation of troops and criminals 
from the Black Sea to the Far East and the tea and pas- 
Sanger trade between those points is in their handa. llMgr 
are always in the service of the government. Prior to the 
war they had been allowed to pass the straits with oeca> 
sional protests by the British Government. At the out- 
break of the war they commenced to cany gona and am- 
munition in their holds and thns were ready to asrame m 
warlike character at any moment Early in July two ves- 
sels of this fleets the PBUAurg and the SmoUntk passed the 
Dsrdanelles under the merchant flag. After passing 
throni^ the Sacs Canal the Psfirttify raised the Bnsriaa 
naval ensign, completed her armament and on Jnly 18 
captored the British steamer Itakeea bound for Tokohsma» 
via Hong-Kong. Thia created the greatest excitement, but 
the afEair waa finally closed hj tho rdesse of the If ohces 
sfter a purely formal examination with the understanding 
that the Peteriurg and the SimoUtuik should no longer act 
as croisers."' 1!hcre could be little question that these 
ships satisfied the requirements for waidiips if it were not 
for the f^et that they had assumed that character on the 
hifl^ sees, snd ss to whether that made any diflerenoe the 
Second Peaee Conference was unable to come to an agre^ 
ment Great Britain's strongest ground for protest woold 
seem to have been that by ahips of war the treaty ef 
Paris intended to include ships capable of being converted 
into ships of war on the high sees, but it is not surprising 
that Bossia gave an opposite construction to a treaty •mboA 
haa always been exceedini^ irksome to her. 

Ptodamation ef Vkeroy Alexieff*— In a proclamation of 
February 8 (old style) -Viceroy Alexieff informed the peo- 
ides snd offlcisls in the vicinity of the Chinese Eastern Bafl- 
wi^ that they would be held responsible for injuries to the 
railroad and to the telegraph aiid telephone wirea in their 
districts and concluded with the remarkable provirion that 
"ahoold any of the Chinese offidsls or people look upon 

Mtar tUa lAofe flHtias nt Lmmsaib Ffw aOI-tllL 



171 iHB Buaao-JAFJona wii: 

the BoflBiaa troops with enmity the Bonian Gorenuneiit 
win muely take meamirea to extemtinate nieh peraona; on 
no aeeonnt wil) any lenient be ahown them.'*** Thiawoidd 
have been an eztnurdinaxy ezereiae of authority on the 
part of aovereignty over ita own aobjeeta whereaa Bonia 
waa not aoTereign where thia proclamation waa to be pab- 
liahed nor waa it her anbjeeta to whom the proclamation 
waa addrened. * 

Chmipanittrelj few recrimtnatfema.— The reeriminationa 
which were ao marked a charaeteriatie of the Sonth Afri- 
can and Franoo-Oerman Wan were not altogether lacking 
and instaneea of them are giTen by Mr. Takahaahi and by 
Mr. Hmhcy, bat f ortonatdy they wexe not nnmerooa. 
Iditary operationa were conducted on aoil foreign to both 
beOigerentay except on ^e island of Rakhalin, and ao the 
regrettable incidenta which are almoat inevitable where an 
invading army ocenpiea enemy aoil inhabited by a patriotie 
popolation did not ariae. 

Chuna ef the aiek and wounded*— Both beDigerenta were 
partiea to the Geneva and Hagne Conventlona. While it ia 
stated that the f edinga between tho beaiegeia and the be- 
aieged at Port Arthur became so bitter that flags of trace 
for tho bnrial of the dead were ignored and that in eonae- 
quence ao many nnbnried Japanese dead lay on the ground 
aa to make the atench unendnrabley** yet in general the 
treatment of the dead and the care of the aick and wounded 
on both aidea aeema to have been excellent In hia work en- 
titled The Bcal Triumph of Japan, Dr. Seaman testifies to 
the wonderful efficiency of the Japancae aanitary aervice 
and in the chapter devoted to flie Bed Cross Society in his 
Rmmi Tokio throuf^ Manchuria ahowa the thoroufl^ prepara- 
tion the aociety had made for the war." He atatea that it 
haa the distinction of being not only the richest but prob- 
ably tho largest of the national Bed Cross Societies.** Sup- 
I^ementaiy to the Bed Cross Society waa the Volunteer 
Nuxaea Association."* An unusual function of the Bed 

MVdr. Bd. aWth^UH 
MB«hiy,p.SOa. 

MF.aiy. 
MP. aic 

■f V\or the hliloiy sad eigndaitSQa €ff thM MMifaAl* nefatfai Mt 
ArlKii» la Grafx-foiiie CB estioM Oif«t To the avIlMr ef tlai veik 
anA eff the ciedtt ibr thdr eSfelav ii am 



17i 

CroM Soefetjr in tliii war was the eaia takaa of €hiiifa 
refngeea who had been engaged on the Bowiian works at 
Port Arthur before the war, bnt who had been diseharged 
when war eoouneneed. They were largely from the south 
of China and without the aid of the sodety would have 
been snbjeet to fearful priTations.* The Bnsnans seem to 
hsYO had fewer field hospitals tlisa the Japanese, but a 
notable f eatnre of their sanitary serviee were twenty hos- 
pital trains fitted out with the latest improTementi. eaeh 
oapable of carrying fonr hnndrod men to the base hospitals 
at Mokden, Harbin and even Moseow.** Twenty was sko 
the nnmbor of the hoqiital ships fitted oat 1^ the Jap* 



The Rnssiaii r^gn latl o ns ^ -I n his order of Febmaiy 28^ 
1904, the Csar directed the military anthorities to eonf ona 
their conduct to the St. Petersburg Declaration and to the 
GencTa and H^e ConTcntions. Copies of these were dis- 
tributed to the troops snd in addition a set of instructions 
was issued on July 14^ 1904, enibodying the main provis- 
ions of The H^e Regulations applicable to troops in the 
field. These were divided into two parts, the fiist being 
directed to officers and the second to noncommisBioned offi- 
cers and soldiers. They formed a valuable supplement to 
the convention as they conformed more elosdy to the needs 
of the national army than an international convention covdd. 
The latter part was especislly commendable. It put in 
short and popular form those provisions of the convoition 
which it was especially desiraUe to bring home to the*con^ 
mon soldier."^ 

Qpedflo regidations of Oe Japanese. In Japan, The 
Hague Convention had been proclaimed by an imperial de- 
cree in 1900. No such genoral instructions based on the 
convention were issued, but detailed instructions covering 
special points of the convention were and these have been 
made the subject of a most enUf^tening commentary hj 
MasanosukA Akiyama, formerly Professor of Law at the 
University of Tokio, Counselor to the Minister of War 
and to the Bureau of Legislation of the Imperial Cabinet 



iTUnkedd, p. ST8. 

tBn M iknUm DipkasUvMi^ p. SOt^ sad Bmh^, p. fTl. 



ITA CKB BUBBCMAFmai W1& 

and Seeretafy during th« war to the Bareaa of Infoniu^ 
thm lor Priionen of War. His work eonatitatea a Taloabla 
eontribatkm to tho lawa of war, aiid,*wilh hk pernuaaioii, 
it will be followed in oonaiderablo detaiL Dae proportioii, 
bowerer, fwerentB ita indnrion here. A aommaigr of hk 
artide la giren aa Ai»pendix L^ 



isfinovof THBOBrBfAOOmnimAir. • IVt 



CHAPTRBZV. 
THE wmMnom ov THE oiHxvA oovmnoir Am the nooro 

Tha Chiwfft OonfOiftloB of UM ud tiht Aildltloiiil Ar^ 
tidis of 186&— The Geneva Conyentkm of 1864 had maaj 
impwf eetioiuL It was an important step in the rUfiil di- 
zeetion, hot it was not based on the eiqwrienee and dis- 
enssion that are neeessary to the best legislation. Its hn- 
peif eetions soon beeame apparent and as we have seen the 
attempt was made to remedy them in the Additional Av- 
tieles of 1868, and to suggest a remedy at the Bmssds Oon- 
f erenee of 1874. However great the anthority of the Addi- 
tional Artieles beeame, and nnqnestionsbly their aothority 
became veiy great» they never became more than a m ^ im 
vtvendi for particnlar wars or an interpretation of great 
scientific valne of the articles of the convention itMlf. They 
were not free themsdves from the objection of not tsldng 
snfBdently into account militazy necesritics, and when com- 
bined with the convention formed a patdiwork whidi was 
even more confnsing than the co n ve n tion itsdL 

Steps towards revision^— Aboot the time cf the Bmssds 
Conference there appesred two works on tiie Convention 
of great valne. Das Prindp der Oenser Convention nnd der 
freiwilligen nationden HttlfMrgsnisation fUr den B^ieg; 
1874, by Sehmidt-Emsthansen and Die Oenser OonventioB, 
Histonseh nnd hritisdidogmatisdi mit VorMhIigen sn ihrer 
VerbesMmng, nnter Darlegong nnd Prfisong der mit ihr 
gemachten Erfahmngen nnd nnter Benntsnng der amt» 
lichen, theQwdM nngedmckten Qodlen bearbdtet, ge- 
krfete PreisBchrift, 1876, by Lneder, bnt despite the snr 
gestions made by the Bmssds Conference, little wss set^ 
ionsly done towards the revision of the ConTcntioii nntti 
1892, when two meetings were hdd by the sanitary staC 
of the Swiss amy at Olten, st which the eonventioii wss 
diseossed with great ability and care and a text adopted 
embodying the work of the assemhiy. Odond Ziegler, ddrf 



ITS TBM UVISIOV OV THE OEHMfA OOVmXIOV. 



of itm Mnitaij ttaff of the Bwim aimj, was duurfed with 
the work of getting the Federal Conndl, it ponibley to call 
an Intemmtioiial Conf erenee, and with thia end in view he 
drew np a project of eonTention baaed largely on the de> 
liberationa at Olten, and anbmitted thia to the Federal 
Conndl, with the prajer that the j eTamine it and take 
some action in the matter.^ 

Inttialhro of Bwiai Federal CknmeiL— The Federal Coon- 
eil consulted the International Committee of the Bed Chroaa 
^rtiieh approved the condnsiona of ISegfer, bnt insisted on 
the :extention of the convention to naval war. Indepen- 
dently of thia the Italian Govemment had been thinking 
of calling a Conference toconsider the extension of the 
Convention to naval war, bnt when it learned of the steps 
already taken by the Swim Government, it eonrteoudy 
yidded the initiative to the latter which aoon after pro- 
pared a provinonal program on which it aonfl^t the advise 
of those competent in the matter.* One of the resolts of 
this initiative was a work by IL Moynier entitled^ La Re- 
vision de la Convention de OenAvCy pnblidied in 1898. 

Bnt before any final action had been taken in the matter 
there appeared the fkonoas drcolar of Count Mouravieff 
of the 24th of August, suggesting the First Peace Confer- 
ence. In hia aecoud circular of Jannaiy 11, 1889, the Count 
included in the program of the Conference the extension 
of the Oeneva Convention to naval war. Thia resulted in 
the naval convention of 1899, but it left untouched the re- 
vision of the Geneva Convention itself although the Con- 
ference expressed the hope that the Swiss Government 
would take the initiative in calling another Conference to 
faring that about* 

The Oeneva Oonf erenee of 1908^— Accordini^ in the 
month of Hay, 1901, a note of the Swiss Government was 
made public inviting the powers ngnatory of the Geneva 
Convention to a conference to discuss the advisability of a 
revinon of the Convention and the modificationa to be in- 
troduced.* This finally resulted in the Conference, the 
opening sesnon of which waa hdd in the Amembly HaU 

iQillel^^ isa 

•Qfflotfu ise^<««s> 



mLQfiHAn woix. ..17T 

of the UniTenity of Goneva, mt 4 P. IL, on June 11, 190&* 
But before Uking np the work of the Conferenee, it nugr 
be well to toaeh for m moment on the work the Bed Crooi 
Soeietiee end the Inttitate of Xntemational Law hed been 
doing to make the eonvention more effeethre. 

Prellmln«7 work of the Bed Oron Boeietlei and ef Oe 
bffcltate off International Law«— The favor with whieh the 
Bed Cron had been reeelTed aU over the world, early led 
to its nee aa a trademark and tradename, and for pnrpoeea 
whieh thoQfl^ charitable were in no way eonneeted with 
the Bed Gfom Soeietiee or the oflleial lanitary e^rviee. The 
German Bed Groes Soeiety took np tUs matter at ita meet- 
ing at Frankfort on the Main* in 1880, bat the Imperial 
anthoritiee considered that little could be done in the maU 
ter without international action. Aeoordini^ this was 
made the subject of discussion at the International con- 
ferences of the Bed Gross societies at GencTa in 1884, Carla- 
mhe in 1887, and Bome in 1892, and the wish expwssed 
at each of these conferences that the GoTcmments would 
take cflectiTe steps to check this abuse of the Bed Cross. 
In 1888 the International Committee of Geneva made in- 
quiry to find out what steps had been taken by the various 
Governments, and was able to report that action had been 
taken, notably in the case of Austria, but in order to darify 
ideas and get concerted action it offered a prise for the 
best paper on the subject, which was awarded to IL Bna- 
sati, who came to the conclusion that an intemati<mal 
agreement on this subject was necessary.* The question of 
a penal sanction for violations of the convention was also 
earnestly discussed at the different eonf erenees of tho Bed 
Cross societies, and the Institute of International Law at ita 
Cambridge meeting in 1895, expressed hope that the powers 
signatory of the Geneva Convention would enter into an 
agreement to pass militaiy penal legidation covering aU 
possible infractions of the Convention. Both the Bed Cross 
societies and the Institute of International Law slao con- 
sidered the establishment of an international commission 
charged with .the examination of alleged infractions of the 
convention, but this was rejected by both. Other sugge^ 
tions of the Bed Cross societies were the taking of mess 

• B«poit €ff tU Uaitod State Ptl^tian, fw a^ 

• QiIlol,p.iei. 



178 THB Bsvmov OF THx QxuxYA ooimamov. 

ores for the identifieation of the dead and for bringmg the 
knowledge of the eonTention to the troopa.* It would be 
nnfair before paaeing to the work of the Conf erenee not to 
mention the Yerj able work of IL OiUot, entitled La Be- 
Tision de la Oonvention de Genive an point de Tne hiator- 
iqne et dogmatique, pobliihed in Faria in 19012. 

Ofganlntion of the Conf erenoe.— The Oonf erenee wia 
ealled to order by the Preaident of the Swin Oonf ederation 
and proceeded to the election of the Hon. Edonaid Odier, 
the iliat ISwin delegate^ aa preddent, who named IL Gna- 
tave Moynier, Hbnoraiy Prerident of the Oonferenee. 
There were tfair^-aeTen powen repreeented, indnding all 
thoae powera, except Turkey, which had participated in 
the iint conference of The Hagae, together with the Cen- 
tral and South American Bepablica, and Korea and the 
Congo. Nearly all of the independent powen of the world 
were lepreaented. 

MemlMnh^^— ''It ia intereating to obaerve that the mem- 
berdiip of the conference eomprieed fifteen aadMMadon 
and ministeniy indnding diargte d'affairea; eii^itecn offl- 
cen of the diplomatic or eonanlar aervice; thirtj-di^t offi- 
eeia of the aimy, of whom twenty were memben of the 
medical or lanitaiy departmenta of the atatea which they 
repreeented; two offioen of the navy; ei|^t profcHon and 
pirf^liciata, and f onr offlcen of Tolnnteer Bed Croea aodetiea. 
Althoni^ bnt few of the delegatea directly repreiented the 
Tohmteer anociationa which have been organiaed in nearly 
all atatea of the eiviliaed world, many of the repreaentatiTca 
haye been offldally aaioeiated with these aodetiea in var> 
iooa capaeitica, and moat of the ddcgatea were entirdy 
ftuniliar with the work which haa been accomplidied 1^ 
Uiem daring the paat forty yeaia."* 

Ckmmit t eea. A a a baaia for the ddiberationa of tiie Con- 
ference, fourteen queationa had been aubmitted to the 
Powen by the Swin Goyemment lome montha in adTance 
and to ftidlitate ita work theae were apportioned among 
four committeea, (1) on the nek, wounded and dead; (2) 
pcTMnnd of eanitary foimation; (3^ aanitaiy material, 
medical storea and auppliea; (4) rablem of the eonrention, 
with the meaaurea necemaiy to prerent ita abuae; together 



vQaioi,p.ieo-ieir. 

•Bipait ef UniM Sliita Prtfaitfcn, ^ 7* 



tuLn ov onxBL in 



with qncstioiif which were not cepecially assigned to other 
eommitleesL* 

Bnlss^— ''In the deUberations of the eommittees the wid- 
est freedom of disenssion was not only permitted, hot en- 
eonraged. Memben of one eommittee were permitted to 
attend the meetings of the other committees, to take part 
in their discussions, and submit projects for consideration 
or adoptioo. In all votes, however, whether in committee 
or in foil conference, each state was entitled to a single 
voice. In each eommittee votes were taken npon subjects 
submitted in the form of questions or statements of prin- 
ciple, leaving to the subcommittees appointed for that pozw 
pose the duty of recasting them in the form of articles, with 
a view to Aeir consideration l^ the seversl committees 
prior to their submission to the conference in plenary ses- 
sion. 

The slgBiog of the OonveDfttou-''Triweekly sessions were 
held by each of the committees into which th<e genersl mem- 
bership of ittB conference was divided, and the discussion 
of the questions referred to them vras prosecuted with such 
diligence and industiy, during the morning and the after- 
noon sesdoDS of each day, that their work was completed, 
ready for submission to the conference, on June 27. At 
two plenary sessions, which were held on June 27 and 28 
the drafts of the several paragraphs assigned to them for 
preparation were approved and referred to a committee 
for editorial revision and arrangement, with a view to their 
incorporation in the final draft of the convention. The 
treaty in the form proposed by its editing committee wsa 
formally adopted at a plenary session of the conference 
which was held in the Hall of the Grand Council of State 
on July 5, 1906. The convention was ngned on July 6^ 
1906, by the plenipotentiaries, whose full powers had been 
exainined and verified at a plenary session of the confei^ 
enee on the preceding day.**^ 

Beservatlnis^— In signing the Convention Japan, Korea, 
China and Great Brloun made reservations as to the en- 
gagement to elaborate a nulitaiy penal code against infrac- 
tions of the Convention, as to the obligation to spread the 
knowledge of it among the troops and population and as 



• Bepoft of UsitaA Slides Prtfgitfcs^ m, H 
MlMUffLia. 



180 TBM KimiOH OF THX QWKWfA OOtfTXimOJr. 

to the intematioiial regnlation of the dirtinetiTe sign mnd 
name of the Bed Cioh.^ 

Fomial artifilef.— It k expreedj stipolAted in the eon- 
▼ention that it ahall only be obligatory on the eontiaeting 
parties in ease of war between two or more of them, that 
it shall sapersede the Oonvention of Angost 22, 18M, in 
the relations between the Contraeting Powers, bnt that that 
eonyention remains in forte between parties who signed it 
bat who are not signatories of this eonvention; that Powers 
not represented at the eonferenee and not signatories of 
the old eonvention may aeeede to it if within a year from 
its notifieation to the Swiss FMIersl Cooneil, sndi Cooneil 
has not been advised of any opposition on the part of any 
of the eontraeting parties, and finally that althoai^ it may 
be denounced, sneh denunciation shall take effect only one 
year after notification to the Swiss Federal OonneiL 

Ineorporated in the final Protocol, although not a part of 
the Convention itself, was the following: 

''In addition and in eonformity with article 16 of the 
convention for the pacific regnlation of international eoi^ 
flicti of July 29, 1899, * * * the eonferenee has ex- 
pressed the following wish: 

Wish eqimssed ^ the Oonfersnce.— ''The Conference 
expresses the wish that in order to reach an interpretation 
and an application of the Geneva Convention as exact as 
possible, the eontraeting parties submit to the Permanent 
Court of The Hague, if the case and the drenmstanees 
allow of it, the differences which, in time of peace, arise 
between them relative to the interpretation of the said eon- 
vention.'*"* 

Merits ef the Oonventfam— Terminology.— Of the very 
great merits of the new convention too much can hardly be 
said. The old convention had "neutralised** ambulances, 
military hospitals and the sanitary personnel, but this gave a 
very misleading impression of the protection intended. The 
ambulances and hospitals were not to be treated as so nraeh 
neutral territory and as such free fhmi military operations. 
Th^ were not even free from seisure, and the equipment 
of military hospitals as distinguished from ambulances re- 
mained subject to the laws of war. Squally objectionable 



uDtlpe^ IS B. a n. L P., SSI 

uiMviah, IS B. a n. L p, esa. 



XHE SBOOKB PBAOS OONVimOI. 181 



was the term as applied to the sanitary personneL It i 
have been galling to the patriotie surgeon to have been eoi^ 
sidered a ''neater'* and not as folly in Ae serviee of his 
eonntiy as his military brother, and on the other hand, the 
term would have seemed to imply a freedom from eontrol 
by the belligerent holding him in its power inoompatible 
with military neeessity. As M. Moynier had written it was 
*'a. neatrali^ relative, eonditaonal and temporary.**" It 
was possible to express the idea sooi^t to be expressed in 
mneh simpler language and in its desire for deamess the 
Oonf erence even avoided the use of the word inviolability 
whieh many had suggested in the plaoe of neutrality. 
Henee in the new eonvention '^neutrality** is used in its 
ordinary acceptation and in no sense peculiar to ike Ooih 
vention. The Conference took advantage of the teehnieal 
and junstie study and discussion which the old Oonvention 
had undergone, and is a monument to tiie value of such 
work in dari^ring and crystallising international eonvei^ 
tions. 

Substantive matter^— But the Conference did not eontent 
itself with questions of form, important as these were. It 
embodied the experience of the wars during which the old 
Convention had been in force, made better provision for 
military necessity, and at the same time provided for the 
policing of the fidd of battle, the examination and identifi- 
cation of the dead, the recognition of the Bed Cross sod^ 
ties, the protection of the name and ngn of the Bed Cross 
and for the spread of the knowledge of the Oonventkih and 
its eitective execution throu|^ military penal codes. The 
work was eitectively and ably done and the Conference may 
well challenge comparison with any of its kind. 

THI SBOOm FBACB coNnBno& 



The Beoond PMee Oonfersnce.— "The Second Interna- 
tional Peace Conference, proposed in the first instance by 
the Pk^dent of the United States of America, having been 
convoked on the invitation of His Majesty, the Emperor 
of All the Bussias, by Her Ma jesty, the Queen of the Nether- 
lands, assembled on the 15th of June, 1907, at The Hague, in 
the Han of the Knights, for the purpose of giving a fraih 



>»Ia OonriBlta 4e Gcuftvib F> 1^ 



182 THI BlfmOV OF THI OXVXTA OOVTSHTHW* 

deyelopmeiit to the humanitarian prineipl«a whieh aermi 
aa a baaia for the work of the Rnt Conference of 1899."^ 
The ddegatea repreaented practically the dyiUaed wmkL 
An important addition to the Powen re pr e aented at the 
First Conference were the South and Central American Ba- 
pablica. Fdrty-aeren nations in all reeeiyed invitationa and 
theae were reaponded to and representatiTea aent hy all hot 
three. 

Oigantaallon and mlea^— The practice of the Flist Con- 
ference in bestowing the Presideney on the first Rossian 
delegate waa followed by the sdeetion of IL Nelidow. At 
the second meeting of the conference he proposed that the 
Conference follow the procedure of the Kist Conf ereneCp 
adapting it» howerer, to the new conditiona. AeeordiniAr 
a series of twelve rules waa adopted. Theae provided fliat 
eomnuasions should be appointed, that the plenipotentiariea 
should be free to register on these commissions at their eon- 
▼enience and to appoint technical ddegatea to take part 
therein, that the Conference ahould appoint the preddenta 
and vice-ivreaidents of eadi commisdon, and the 
dona their aecretariea and their reporter, and that 
eommimion ahould have the power to divide itsctf into sub- 
eommisdons idiidi should organise their own bureaoa. An 
editing committee for the purpose of coordinating the aeta 
adopted by the Conference and preparing them in thdr 
final form was to be appointed by the Conference at the be- 
ginning of its labors. The membeis of the delegations were 
all authorised to take part in the deliberations at the plen- 
ary aemona of the conference aa wdl aa in the eommiadona 
of iriiich they formed part, it being possible for the mesflh 
beiB of the same ddegation to replace each other. Thoae 
members of the Conference attending commissions of which 
they were not membeis were not authorised to take part in 
the ddiberationa without the spedd authorisation of the 
preddent of the commisdon. Each ddegation wsa given 
one vote which waa taken by roll call, in the alphabetical 
Older of the Powera repreaented. The propoaal that the 
ddegation of one Power mi|^t be repreaental by the dd^ 
gation of another Power waa supressed. Pro p osed resobi- 
tioDs or desires to be discussed by the Conference had, aa 
a general rule to be delivered in writing to the 



THB nooiTD PiAoi ooimiaroi. 18S 

and to be printed and dittrilmted before being taken np 
for diaeumon. There were aimilar proviaiona witb regard 
to the reporta of the commjaaiona and aabrommiaaiona. 80^ 
einet rtmunla of the deliberationa of the plenary aeviona 
and of the commiwiona were to be deliverBd to the meflih 
bera and not read at Ute beginning of the aeanona. Baeh 
delegate waa to have the ri^t to reipieat the inaertion in 
full of hia offleial deelarationa and to make obaenrationa 
regarding Ae minatea. The pablie waa to be admitted to 
the plenary aeviona bj tieket, exeept where the bureau 
might deeide that eertain ae eaiona ahonld not be pablie. 
Finalljy the Frendi language waa reeogniaed aa the offleial 
langnage of the deliberationa and of the aeta of flie Con- 
f erenee, and the Secretary General waa directed, with the 
eonaent of tiie apeaker hiinaelf, to aee that the apeeehea de- 
livered in any other langnage ahonld be anmmariied oraOy 
in French. 

IMflalQin of the week aiwowg four oommiialoiHk— Whst 
eommjaaiona were appointed, and the anbjecta outlined in 
the program of the Conference were divided among them 
aa foDowa: 



Arbitratkm. 

International eommindona of inquiry and queationa eon* 
neeted therewith. 

anoovn ooxmaaiov. 

ImproTcmenta in the ^yatem of the lawa and cuatoma of 
land warfare. 
Opening of hoatilitica. 
Dedarationa of 1899 relating theretOL 
Ri^ta and obligationa of neutrala on land. 



Bombardment of porta, dtiea and TiDagea by a naval 
foreeu 

Laying of torpedoea, ete. 

The rulea to which the Tcawla of belligerenta in neutral 
porta would be aubjeeled. 



IM TBS BBfUlOV Off THB QEVXYA OOVfEVTUW* 

AdditioiM to be mado to tbe eoliTentioii of 1899 in ordor 
to adapt to maritima irarCara the prineiplea of the GeneTa 
OonTentaon of 1864^ reriaed in 1906L 



loraoH ooiaoaaiov. 

nanafoimation of merchant Tenela into war Tewela. 

FriTate property at aea. 

Delay allowed for the departoxe of enemy merchant vea- 
ada in enemy porta. 

Contraband of war. Blockadea. 

Deatmetion of neatral prixca by /once ma/Mire. 

ProTiaioni regarding land warfkre which would alao be 
applicable to naval war&re. 

Organiiation of the oommlnlona.— M. Leon Boorgeoia, of 
France, waa aelected aa the Preaident of the first oommia- 
aion» M. Beerayaert, of Bdginm, aa the president of the see- 
ond, and-^ir: M. C. Aner, ilt The Netherlands, aa assis- 
tant president, Connt TomieDi, of Italy, aa the preaident 
of the third commission, and M. de Martena, of Bossia, aa 
the president of the fourth. The recommendation that the 
deliberations of the commissions be kept secret, or at least 
not commnnicated to the press was nnanimomdy adopted, 
bat was not nniversally adhered to by the ddegatea. 

BIgniBg of the Final Aet^— The first, second and third 
commissions were sabseqnently divided into snbcommia- 
sions, and at TarioDS times committees were appointed to 
atill farther expedite work of the Oonference. Moat of 
the work .of the editing committee, provided for in the roles 
of the Oonference, was done by a sabcommittee of ei^ht 
The results, so fto aa the seversl commissions desired, were 
reported to the fall Conference, and after approval were 
pat into proper form by the subediting committee. The re- 
sults thus reached were induded in the Final Act and signed 
by Ac plenipotentiaiiea on the 18th day of October, 1907, 
upon which date the Oonference adjourned." 

Work of the Conference eondag witUn the scope ef tUs 
work. — ^The work of the first commission, arbitration and 
international ccMumissions of inquiry, lies outside of the 
acope of thia work. The aame may be said with regard to 



■bote SMOiii k tekn Irae Ike Bepoit cf Ike 



TBI noom vsAOB ooypEBnoi. 186 

tlie ri^to and obligationi of neatnk on landt the nil«s to 
whieh the yeneli of belligerents in nentnl perts wonld be 
■objected, eontraband of war, bloekadea and the deatnio- 
tion of nentral prixes by force majeure. Two other matten 
which were made the aabjeet of convention, bnt which were 
not indnded in the original program, the nae of force in 
the collection of contract debts and the establishment of 
an international prise conrt are omitted for the same rea- 
son. Althoni^ the British plan restricting the Interna- 
tional Conrt to matters aitecting nentrals was rejected, the 
interest of neutrals in the Conrt is so preponderating as to 
prednde its consideration in a work on the laws of war as 
between belligerents. Of the thirteen Conyentions and one 
Declaration drawn np by the Conference, nine in all, in- 
dnding the Declaration, come with the scope of this work. 
These will be considered in the order in which th^ were 
divided among the commissions. 

Oonventlon respeeting the La?rs and Oustoms of War on 
Land.— The Convention respecting* the Laws and Costoms 
of l^ar on Land of 1899 was found to need little amend- 
ment. Its provisions had boon the subject of so much ex- 
pert discussion ever since they were first drawn up at Brus- 
sels that even the South African and Rosso-Japanese Wars 
offered little occasion for change. Two changes which may 
possibly be charged to the latter are the requirement it 
great er de tail in the card kept for prisoner s of w ar in Ai^ 
tide XIV, and the requirement of Article XVII that the 
scale of pay for ofllceis who are prisoners of war dudl be 
that of tiie captor's amy and not t hat of their own. On 
the proposition of Ocrmany, clause XXm (h) was added 
which forbids declaring abolished, suspended or inadmis- 
sible in a Court of law the ri^ts and actions of the nation- 
a}s. of the hostile party. This, apparently, works an im- 
portant change in Anglo-American law in allowing an alien 
enemy to sue.** It had always been recognised as harsh • 
that a belligerent could compd the nationsJs of the hostile 
party to serve him as guides. The worst features of this 
practice, if not the practice itsdf, is forbidden by the new 
artide XLIV.^* 

Artide LII was amended so as to give the xeedpts for 

mBmI^/^PlSISL 

lT8Ml^/^p.SlSl 



186 THi iKvuiov w THx QKSwfA otomornom. 

artiel«s which have been reqnkitioned aomewhat more of 
the eharaeter of indemnitiea'* and, strange as it maj aeen, 
sobmarine eablea oonneeting an ocenpied territory with a 
neatral territory were plaeed within the protection of the 
Convention in Article hKV. Former Artidea LIV, LVII, 
LV m, M X and LX became, reapeetiTely, Artidea XfX, XI, 
Xn, XIV and XV of 4he Oonvention respecting the Bighta 
and Dntiea of Neutral Powen and Persona in caae of War 
on Land. ' In the Oonyention proper there was added as 
Artide m, a provision, penal in its nature, making a bd- 
ligerent party responsible in damages for acts committed 
by persons in its service in violation of the BegolationsL 

llus important statement is made in the preamble: 

Statement of general prlno^les in the Preamble ~**Ao» 
cording to the views of the ffigh Contracting Partiea, Aese 
provisions, the wording of which baa been inspired by fhe 
desire to diminish the evils of war, as fto as military re- 
qnirements permit, are intended to serve as a general nde 
of condnet for the bdligexents in their mutual rdationa and 
bk thdr rdationa with the inhabitanta. • • • 

''Until a more complete code of the laws of war baa been 
issued, the ffi^ Contracting Parties deem it expedient to 
declare that, in cases not indnded in the Regulations 
adopted by them, the inhabitanta and the bdligerents v»> 
main under the protection and the rule of the prineiplea of 
the law of nations, as th^ result from the usagea estsb- 
lidied among civilised peoples, from the laws of humanity 
and the dictates of the public consdenee. 

''They declare that it is in this sense especially Oat Aiw 
tidea I and n of the Begulationa adopted must be undep- 
stood." 

Openiog of Hdstflttles.— The Convention relative to tim 
Opcming of Hostilities was a result of the RussoJapanese 
War. Althou^ one of ita egress purposes is "that boa- 
tilities diould not commence without previous warning^" 
the Conference f iJled to agree on even a dday of twenty- 
four hours between the dedaration and the conmieneemeBt 
of hostilities, so that it will in no degree lessen the neeea- 
si^ of preparedness for action, to obviate which a wans- 
ing mi^t have been dcairable. On the other hand H is 
libly to give rise to the eontroveznes which diaraeteiiaed 

uBm Hf% ^ tin 



9MCOXD WEAtm oovvimoi. ' 187 



tbe f oraier period \flieii a preYumt deelmntioii of war wm 
eonsidered neeenary.** As was said in the Report of the 
American Delegation, its importance "to prospeetire het 
ligerents msy be open to doubt** The American Ddega- 
tion, howerery felt that it safegoarded the ri|^ts of neu- 
trals and so gave it their approvaL 

Dedaration oonoendqg the dlwhaife of projeelilss tnm 
balloons^-Of the Declarations of 1899, the only one eQ»> 
sidered wss that with regard to discharging projectiles 
from bsUoons which had expired by its fiTc-year limitation. 
This was renewed for a period extending to the dose of 
the Third Peace Oonf erenee. 

BoadMidmeal 1^ naval f orDes^— The Oonvention respect- 
ing Bombardment by Nayal Forces in Time of Wsr» nuurked 
the folfiUment of the wish of the F^rst Conference. In 
many respects it is an adaptation of the principle of the 
Land Omvention with regard to bombardments to naval 
warfare, but in others it is an improvement on that con- 
vention and it gave concrete form to principles of inde- 
pendent vdne. It provides that nndefended towns shsU 
not be bombarded on account of Csilnre to pay mon^ eon- 
tribotionSv and that militaiy establishments in nndefended 
towns shall ordinarily not be sabject-of bombardment, 
unless all other means be impossible and a reasonable time 
given to the inhabitants to destroy them themselves, and. in 
that esse the commander shall tske all due messures in 
order that the town may suffer as little damage as posdUe. 
The improvements over the Lend Convention were in re- 
quiring a warning "if the military ntuation permits" in- 
stesd of excepting only cases of assault snd in 
the ngu to indicate monuments, etc, as "large, stif^ reet^ 
angular pands divided diagonally into two colored tri- 
angular portions, the upper portion black, the lower piMS 
tion white." 

Antomatie suhnmrlne oontaet nrinss.— The Convention 
rdative to the Lsying of Automatic Submarine Contact 
Mines leaves to the unwritten law the andioring of such 
mines in the hi|^ sees beyond the territorial watem of the 
bdligerents, but ss f^ ss it goes^ it regulates a subject 
with regard to iriiich littie law has grown up and wUA 

i*ta«i.^«,^ssa 
■•taii^^ssa 



188 THB IKVUIOV OF THX QEXtMfA OOXmilOir^ 



the eTento of the Rimo-Japaneie War showed needed regu- 
latSon.*^ It is limited to seTen yean, hot if not denonneed 
eontinnes in forte after the termination of this period. 

Naval Bed Gron Oonrentlon.— The Convention for the 
Adaptation to Naval War of the Prindplea of the Geneva 
Convention was an admirable pieee of work rendered leas 
diffienlt by the labors of the Geneva Conferenee of 1908. 
Perhapa the moat notable improvementa over the naval 
eonvention of 1899 are the placing of nentral hospital ships 
under the control of one of the belligerents^ and the speei- 
fieation of the ri|^t of the belligerenta to demand that the 
sieky wounded or shipwreeked on board military hospital 
ships, hospital ships belonging to relief soeieties or to pri* 
Tate individoaky merchant ships, yachts or boats, whether 
enemy or nentral, shall be handed over.** 

The Convention relative to the Conversion of Merchant 
Shipa into Waishipa leaves nntonched the question whether 
su^ conversion may take place on the high seaa, but it 
forms a valuable supplement to the Declaration of Paria 
in defining the conditions under which private owned ships 
may engage in hostilities. The United States did not sign 
or adhere to this Convention, because it is not a party to 
' the Declaration of P^ris. 

Sffort to exempt private properly al sea £ram caplnra<^ 
The Convention relative to Certain Restrictions with regard 
to the Exercise of the Bi^t of Capture in Naval War is 
what is left of the eitort of the United SUtes for the gen- 
ersl exemption of private property at sea. In accordance 
with ittB action of the United States at the Rrst Peace Con- 
ference, Mr. Choate proposed the exemption from capture 
at sea of an property, except under the laws of eontraband 
and blockade. Other proposals were made by Belgium, 
Brasil and France. The Belginm proposal provided that 
merchantmen and their cargoes, in certain cases the value 
of the property destroyed, and in cases where the cargoes 
are perishable, ''the sales moneys, were to be restored to 
the owners by the captors' state, without any indemnity, 
for deprivation of enjoyment, or for deterioration not 
caused by grave fault; but that the state mi^t shift tiie 

n8nMqw%p.l7lL 



TOM 8B00XD PXAOB ooxnmoi. ' 189 



Inirdeii to the enemy itate by the treaty of peace.**" TUa 
la Bomewhat like the treatment to whieh private mnniUona 
of war, aeiied on land^ will probably be anbjeeted under 
H LIIL The Bradlian propoeal provided for the giTing of 
receipta as in eaiea of reqniaition on land. The French pio- 
poeal was baaed on the idea that the ri^t of priie ehoold 
appear solely as a means of bringing pressore to bear on 
the hostile state, that, aeeordingly, all profit to the indi- 
▼idnal eaptor should be ezduded, and that, furthermore^ 
losses inenrred by individuals should fall in last resort on 
their state. Acoordingly the French Delegation proposed 
that the oommisdon should express the wish that shares of 
prise money should be suppressed and that states should 
tske some measures to reimburse those suffering by capture. 
On a vote being taken in the fourth commission on the pro- 
posal of the United States, there were 21 votes in fkvor of 
it and 11 against, with some abstentions. Among those who 
voted in favor of it were Austria-Hungary, Belgium, Brik 
sil, Ckrmany (with reservations), Italy, The Netherlanda, 
Switserland and the United Statea. Among those who 
voted against it were France, Oreat Britain, Japan, Busria 
and Spain. This made four of the great naval powers 
against it as opposed to possibly three, Germany, Italy and 
the United States, in f^vor of it The vote on a test danse 
of the Brazilian proposal was 18 to 12 against H and it waa 
withdrawn. The vote on the first danse of the Bdgian 
proposal was 14 to 9 in its fkvor, but as the opposition to it 
was also strong it was withdrawn. Later the Frmch pro- 
posal was modified so as to convey an invitation to the 
Powers to abolish prise money, rather than to egress a 
wish to that effect, and this vraa carried by a vote of IC 
to 4 with 14 abstentions. The second part of the FnoA. 
proposal, looking to the indemnification of the owners of 
captured property was lost by a vote of 18 to 7, with 14 
abstentions. All this had occurred in the Fourth Cbmndi- 
sion.** It evidently considered that no satisfactory report 
could be made to the full Conference, so that the Rnal Aet 
is without an eqiression of opinion on the general subjeel^ 

nW«rtkk% n iBttmtioul Law, SIS. 

MVor tbte whole auUter, m8 Wcrt]iik% U LrtmutioMl lew, SU- 
SIC 



190 THX BifittOH ov THi OBTirA ooiiTiimojr. 



exeept insofar as that it iuTolTed in its fourth wish wliieh 
is as follows: 

ynOk of tho Ooiif0r«iieo.-^''The Confersnoo ezpresMs tho 
opinion (voeii) that the preparation of regolations relatiTO 
to the laws and enstoms of nayal war should figore in the 
programme of the next Conf erence, and that in any ease 
the Powers may apply , aa far as possible, to war by sea the 
principles of the Convention relatiTe to the Laws and Cn^ 
toms of War on Land.*** 

^peoial restrlotlons on the rtghl of captvre.— The special 
restrietiims on the ri|^t of eaptore in naval war that did 
find their way into the Oonventiony however, were not m^ 
important, and the statement in the preamble that it is 
expedient to commence eodii^Ting in regolations of general 
application the gnarantees due to peaceful commerce and 
legitimate business, may give a i^pse of hope to those 
who wish for wider restrictions in the fatore. The restri^ 
lions exempting eosst fishing vessels, and vessels charged 
with rdigioos, scientifle or philanthropic missions embody 
the cnstomaiy law, bnt the exemption of small boats em- 
ployed in Um»1 trade is new, and the provision exempting 
postsl correspondence from eaptore is an innovation of 
great valoe. The provinims in regard to Ac treatment of 
tiie captain, of&cers and crews of eaptored merchant ships 
allow their release on parole. Ncotral members of crews 
are to be relesscd without condition. 

Statos of enemy sh^ al onthresk of hostflltiss^The 
Convention relative to the Statos of Enemy Merchant Slups 
at the Ootbreak of Hostilities innovated on the existing 
practice 1^ conditioning the ri|^t of a ship, leaving ite 
last port of departore before the commencement of the war, 
to enter the hostile port, on its ignorance of hostilities. 
Even in ease of ignorance it' may be detained sobject to be 
res to red or re<ioisitioned, or even destroyed on payment 
of compensation. The American Delegation fdt that this 
was reactionaiy^ so that the United States neither signed 
nor adhered to it"* 

Formal parts of the Chmventlons.— I^>r the formal parts 
of the above Conventions common to all or most of thesi, 
the reader Is referred to the text of the Convention respeet- 



MBm k^fm, ^ m. 



THS tlOOND PIAOI OONFBIBirOI. ' 191 

ing the Lawi mnd Cuftoms of War on Land, giTeii as Appofr* 
diz IL The preamble, with the ezeeptioii of the reaeona 
aa which the ConTentions are based, is eommon to alL 
Artiele II providing that the provisions of the ConventiMi 
do not apply except between Contracting Powers, and then 
only if all the belligerents are parties to the Convention, 
is common to all except the Convention relative to the 
Opening of Hostilities. Its langnage is hardly applicable 
to that convention becanse it would be anomalous for that 
Convention to speak of hettig§renU prior to a declaration. 
Artiele m of that Convention, however, is open to a aimilar 
constiRictiion* 

Article IV of the Land Convention is similar to O N XXV. 
and provides that tiie Convention, dnly ratified, shall as 
between the contracting Powers, be substituted for the old 
Convention of July 29, 1899, but that the Convention of 
1899 remains in force between the Powers which rigued it, 
and which do not also ratify the new Convention. 

Article y is common to all the conventions. It provides 
that the Convention shall be ratified as soon as possible; 
that the ratifications shall be deposited at The Hagn^ tad 
makes provision for the sending by The Netheiiands Gov- 
ernment of duly certified copies of the proch^perM rdativo 
to the first deposit of ratifications, of the notification of the 
subsequent ratifications and the instruments of ratification 
accompanying them, together with notice of the date at 
which the latter were received, to the Pbwers invited to 
the Second Peace Conference and the other adhering Powers. 
Article VI is eommon to all the conventions, except the 
Geneva Naval Convention. It provides for the adh e sion 
of nonsignatory Powers by notice to The Netherlands Gov- 
ernment, which shall make this known to the otiier Poweis 
as in the preceding Article. The corresponding artiele of 
the Geneva Naval Convention restricti the adhesion of non- 
signatory Powers to those who have accepted the Geneva 
Convention of July 6^ 1908. Article Vn is common to all, 
and provides that the Convention ahaU go into effect dxty 
days after tiie date of tiie proeh^vefUi of the first deposit 
or a similar period* after the receipt of the notification of 
. ratificatio n by The Netherlands Government. - 

Article Vm deals with denunciations and is eommon to 
all except the Convention relative to Automatic i 



192 THB BBvxsiov ov TBI QxvxTA ooimDmoy. 

Contaet Minea. It provides that in the event of one of the 
Contraeting Powers wishing to denonnee the Convention, 
it may do so by notiee to the Netherlands Govemnient» 
which shall not^ the other Powers, and that this shall 
only have eiteet in regard to the notil^g Power, and one 
year after the notifieation has reached The Netheriands 
Government The eorresponding article in the Mines Coih 
vention varies because of its lii^tation to seven years and 
fixes six months as the period in which the denunciation 
shall go into citect instead of one year. 

Article IX is oommon to all the Conventions and provides 
that a registry be kept by The Netherlands Ministiy for 
Foreign Affairs of ratifications, notifications and denuncia- 
tions, to which each of the Contracting Powers is entitled to 
access, and to be supplied with a certified copy. The orig- 
inal Convention is deposited in the archives of Hie Nether- 
lands Government, and duly certified eopies sent to the 
Powers invited to the Second Conferenoe. 

Difference in form between Conventions and Deelaratlen, 
—For the difference in form between the Conventions and 
the Declaration the reader is likewise rttferred to the text 
of the Declaration Prohibiting the Discharge of Projectiles 
from BaUoons, given as Appendix IIL It will be seen that 
the Declaration is in the name of the Plenipotentiaries, in- 
stead of in the name of the Oiief Bxecutives, as is the 
case with the Conventions, and that the requirements for 
ratification are less formal, but that otherwise there is lit- 
tle difference. 

The Final Act— The Conventions and Declaration form . 
so many separate acts. In addition the Conference drew 
up its Final Act This is not a Convention, but rather a 
statement of the work and opinions of the Conference itsell 
Some of the views expressed by Ac Conference have been 
given dsewfaere in this work.** Its last recommendation is 
as follows: 

Wish for a lUrd Peace Oonferenee^— ^'Finally, the Con- 
ference recommends to the Powers the assembly of a Third 
Peace Conference, which mi^t be held within a period eor- 
responding to that which has elapsed since the preceding 
Conference, at a date to be fixed by common agreement be- 
tween the P6wers, and it calls their attention to the : 

tr8Mpp.lS^tlC 



SHE SBODKD FXACS OOimRBHCI. - IM 

si^ of preparing tttt progrmmme of thk Third Conferenoe 
a toffieient time in advanee to ensure its deliberations being 
eondneted with the neeessary anthori^ and expedition. 

**In order to attain this object the Conferenee eonsiden 
that it would be yezy desirable that» some two yean be- 
fore the probable date of the meeting, a preparatoiy Oom- 
mittee should be charged by the Govenmients with the 
task of collecting the Tarious proposals to be submitted to 
the Conference, of ascertaining what subjects are ripe for 
embodiment in an International Regulation, and of prepar- 
ing a programme which the GoTcmments should decide 
upon in sufficient time to enable it to be carefully examined 
by the countries interested. This Committee should further 
be intrusted with the task of proposing a qrstem of organi> 
sation and procedure for the Conferenee itaeU." 

Bignatories^-The Final Act was signed by the Pleni- 
potentiaries of all the Powers, except Paraguay and Tur- 
key, with a resenration on the part of Switaerland to wish 
No. 1 concerning a Judicial Arbitration Court which was 
not acceptable to the Federal CounciL The Poweis which 
signed none but the Final Act were Germany, Austria, 
Hungary, China, Bcuador, Great Britain, Itidy, Japan, 
Nicaragua and Switseriand, but it is thought that ultimate- 
ly at least there will be practical unanimi^ on most of the 
CouTcntions and the Declaration which come within the 
scope of the work. 

K. Benanll— Before closing the account of the Confer- 
enee it is fitting to allude to the preeminent woxk ci one 
man, IL Benault. It has been said that ''from the 15th day 
of June to the 18th day of October, he dominated the Sec- 
ond Hague Conference, not as a Frenchman or as a member 
of the French Delegation, but as a dtiien of the world, the 
trusted friend and adviser of Ids colleagues."* 

The work of the Oonf erenoor— The great work of the 
Conference lay elsewhere, but in codHying the law on 
which there was a consensus of (pinion, in introducing 
into the law such beneficent provisions as those protecting 
mails, and finally in showing the progressive nature of the 
conventional law of war, it accomplished results of pei^ 
manent value. 



M t Aaokw Joenal of IstanstioMa Uiw, lOL 

IB 



FABTIL 
OOMMENTABT. 



ooxxBromnTOvwii. 197 



GHAFTEBL 
ooKxnroBiCBn OF wii. 



cf font fining diort cf war^— All maarara of 
torea infringing the rights of another state are^ strietlj 
speaking, acts of war, but in the past, eapedallyy it has 
been felt desirable that there shonld be measnies of forea 
whieh ahoold not involye all the serioos eonseq^enees of 
war, but whieh oonld yet be reaorted to for the porpose 
of bringing a refraetoiy state to terma. Down to the end 
of the eighteenth eentory the two most eonunon messoies 
of this kind were embargo and repriaala. Embargo gen- 
erally consisted of the detention of the ships of the oftaad- 
ing state until satiafaction waa aecored, while repriaala 
eonaisted of almost any other hostile adsore of peraons 
or property not intended to oonstitate formal war. Plrop- 
erty thns seised waa not nsoaOy applied immediataly to 
the aatisf action of the injury complained o^ but waa set 
aaide for aome time in hope of aatiafaetion being granted 
by the other par^.^ Genml Repriaala were national acta, 
and mnst be distingnidied from the practice of Special 
Repriaala, which flourished daring tiie Middle Agea, and 
whieh were merely meana of private redreaa. Since the 
Napoleonic period both the Embargo and General Repriaala 
have fallen Tcry generally into disuse. 

Padfle Moekades,— Towarda the more backward powera, 
howerer, those whieh have ahown an inability or a dirin- 
dination to lire np to their international obligationay meaa- 
nr«a of force falling abort of war are atiU qmte freqoentiy 
nsed. They nsoally take the form of Fadflc Blodkadea. 
Theae are directed at the ahipping of the offending power, 
and do not affect nentrala; for the power which it aeeking 
to enforce ita daim can haye no authority on the high aeas 
or in the territory of the other power over the Temels of 
a third power except through the bdligcrent righta whieh 
war givea.* Thia principle ia weU eatoblidied.* The hi- 



iRdlMk, latv. Lew, pu 4TL 

t Aanttirt 4e laititat 4m DraK Is^benMamd, laST-a^ s^ ! 

• Bat M W<iltak% n lataelkBd law, U. 



Its oomaDraiiiDT m wib. 

effleMj of UoekadM which do not dfoet nontral ship- 
pingy howovor, often leadi to its indadon in Moelmdin 
whkli are intendod m tiio only hootilo 
tho refrmetoiy power, and which thot bear n dooe 
blanee to Mockadaa that are paeifle. They are^ however, 
onequiToeal aeta of war, and involTe aU tiie l^gal eonae- 
qaencea of war. In Pfteiite Blodkadea proper t j maj be 
aeqneetered bnt not eonibeated nnlev war enaoea.* 
]. ' The openinc of hoetltttiea^-The opening of hoetilitica it 

I regulated by the following ConTontion drawn np at the 

I.. 
,t 



;.i 



Second Peace Conferenee. 

Conaidering that it is important, in order to ennire the 

maintwianfic of pacific rdationi, that hoetilitica should not 

commence without prcTiooa warning. 

j That it is eqnal^ important that the existence of a 

state of war shonld be notified without ddaj to nentral 

jij Powera [the Flenipotentiariea of the Contracting Powen]. 

v haye agreed npon the following provisionst 

|J Asx!. L Th$ Oai^kaeiing Pawn r§cogniM Ikal hoMSKn 

|i[ npUeii warning, in ika farm aUkar of a raaaanad iadaraUan 

\\ uf war, arafan aUHmaJtam wiXk eoiidtlumaZ dtdsmfion of war. 

|j[ An. n. Tka axUianea of a aUAa of war maai la naUfai 

,!t ia fk$ naakal Pawara ariXkaui Mag, and Aatt not iaika «fscl 

[i[! m r$gard ia iham wnHl afiar fka reeaipi cf a naHfteaMan, 

fi which wui§, hawaaar, h§ giaan ty Ulagrafh* Naairai Pawara, 

jli, aav^raflMf, coaiiol fely an tha duanca of naHfteaiian if U ia 

daarlg aaUbKAad ihai ihag war§ in fad awara of 4ha ena- 

Unc$ sf a alsis of war. 
Abx. nL ArKda I of iha pmani OanvanHan Aatt lofts 

afad ia caa» af war haiw$an Uaa ar siofs cf fh$ OaniracUng 

Pawara. 
ArUda II ia Kadfaiy aa hatwun a hOUgarani Pawar which ia 

a parig ia iha Oanaaniian and asalrvl Paama which arv abo 
, I, ptarOai ia iha OanaanUan, 

\t Ooanisnt ef the Amsrieaa di!legation^-^''The contention 

k Tcry short and is baaed npon the principle that neithff 

belligerent ahoold be taken by sorprise^ and that the nen- 
j!:; tral shall not be boond to the performance of nentrd dn» 

1^1 tiea nntil it haa receiTcd notification, even if only by td^ 

giamy of the ontbreak of the war. The means of 

Aim 



<mxvKQ or HORnmn. I9f 



tion k eoDiidered imiiiiportaiit, for if the neatnl kiiawi» 
thnmi^ whatercr means or whatever channela, of the es- 
ktenee of war, it eansot elaim a formal m>tifieataoii ftom 
the belligerents before being taxed with neatral obliga- 
tions. While the importanee to prospeetive belligsrents 
may be open to doubt, it is dear that it does saf egoard 
in a TVj high degree the righta of neatrals and speeififls 
anthoritatiTsIj the ezaet moment when the dntj of nen- 
trali^ begins. It is for thk resson that the Amerieaa dele- 
gation supported the projeet and signed the eonventkiL'* 

Of doobtfnl vtnity to bemgersalB*— The donbt expressed 
by the Ameriesn Ddegation as to the vtilitj of the eon- 
yention to belligerents, is <weil founded. Althon^ the 
delegation reeeho the sentiment of the preamble that the 
eonvention is based upon the prindple that neither belBf- 
erent should be taken by surprise, its real eifeet, as West- 
lake says, has been to eonfirm rather than to weaken "the 
neeessi^ that, in order not to be taken unprepared, eveiy 
nation must rely on its own Tigilanee^ and on no formal 
role.''* If some provinon had been inserted, like the reso- 
lution of the Institute of International Law, that hostilities 
should only be eommeueed after the expiration of a dday 
suffident to prevent the requirement of a previous and 
nonequivoeal dday being dunvc;,* it might have been eon- 
tended that the eonvention would have had a tendenqr 
to prevent war hy postponing the aetive military prepara- 
tions whieh immediately precede operations, and whieh at ' 
present have a toideney to predpitate war, until after the I 
formal dedaration or the ultimatum. But not only was | 
no such providon inserted, but even the proposal of a 
delay of twen^-four hours made by the ddegation of The 
Netherlands was rejected.* It may justiy be contended 
that such a dday is implied, but H k desr that no gov- 
ernment would be justified in f oregdng militaiy prepan^ 
tions in rdiance on sndi an implication. 

hoMheiy in the initiation of war Dl^gaL— It is tras 
now, just ss it hss been for centuries, that where one 
nation has a grievance against another, it is bound to d^ 

• B«port of tht ABMatoa Dd^MioB, ^ ai 

• W«iitkk% n iBtanstioma Lmt. isr. 
tSl Aammdm, WtL 
•W«IU% n IstimeHnoil Um, tST. 



Ifll 



tl.l 



l':| 



i! 



too ' ooififfprcKigBMT n wib. 

maud redreM, and not to raori to f oroe nntil there hae beoi 
a denial or delay in latii^Ting ita elaim, except, for in- 
atance, where it ia attacked. And there haa been little 
canae for complaint on thia sronnd during the laat hnn- 
dred yeara. Bnt thia prineiple, that treacheiy in the in- 
itiation of hoatilitiea k illepd, ia qmte remote trom the 
iiaeation whether a formal declaration in the nature of a 
warning ahonld be required. 

Advantaffea and dlndnntagea ef oonventiMu-Aa be- 
tween bdligerentiy the conyention haa thia advantage^ if 
it be each, that it wiU more aharply differentiate meaanrea 
falling abort of war from war itadfi but on the other hand, 
it haa the diatinct diaadvantage that it ia liable to giye riae 
to encDcM controTcrsy and recrimination. One of the moat 
mooted qncationa witb the old pobliciata waa aa to when a 
declaration of war waa not necessary. Many heUl th^t it 
waa not necessary in a def endTC war, bnt it is often difk 
eolt to say when a war ia def ensiTC. Take, for instance, a 
confict over a boundary. Each claimant ia liable to say 
that the other committed the first OTcrt act Numeroua 
other instancea migiht also be given where oontroTcny is 
likdy to arise. Where an ally haa joined one of the bdlig- 
iij { erents, is it necessary to declare war against himt Would 

ji; I it haye been necessary in the South African War, where 

I'll i Great Britain claimed a sort of snierainty, and which ao- 

/}■■ ; cording waa somewhat in the nature of a tiyfL wart AH 

l^jt j these things are what render the utility of the eonyention 

•:> I aa between belligerents doubtftd. 

lb i nie expression ''reasoned declaration of war" in the first 

|ij i article ia not a yery* happy one. The translation giyen in 

the American Jounial of International Law, "a declara- 
tion of war with the reasons therefor"* better e xpresse s 
the sense <tf the originaL Nor should the artide read that 
hostilitieB **mMH not commence without, etc" A more cor- 
rect rendering ia that they **Mhould not begin without, 
etc,"^ or that they "ought not to commence without, 
etc.""* 

Bffeel of the breaking out ef war on ttie general legal 
rdatiotta of the bdUgereBla and their oMienair— War worlDi 

•VoL i; ^ en 

unWcittshibMr. 



SfVBOT OX TKUStMB, ' Ml 



a prsf oaad ehanffs in the legal reUttioiie between l]ie bet 
ligerents and between thoee private perwms who are af- 
fected with the enemy eharaeter. The treatiei between the 
two powers are perhaps for the most part abrogated; eon- 
traets between private persons are saq|)ended** or diasolyedv 
and new eontraets entered into are nnll and void, nnlwi 
thflif arise from the war, as for intanee ransom bill% or 
are excepted ftom the oraal prcduMtion of eommereial !»• 
tereoQXse. Furthermorey emunereial intereoorse of every 
kind is nsoally prohibited, although there is a growing 
tendon^ to make the prohibition less generaL 

BfTeel on treattes^— Jnst what treaties or provirions of 
tresties axe not abrogated has been a matter of oontroverqr. 
Am to the oontinned obligation of stipolations whose only 
operation it in time of war, whieh acknowledge indebted^ 
ness, or by whieh a ''status is permanency established or 
a fight pennanendy vested," there it no question.** A 
stipulation that the eitisens of each bdligorent foinnd in 
tiie territory of the other at the outbreak of war may 
have a reasonable time in which to wind up their aflBairs 
and leave the country, obviously csn have no applicatioB 
except in time of war. It ia also well settled, on the foun- 
dation of the good faith and credit of governments, that 
the obligation of national debts, and of treaties aeknowl* 
edging such debts, remain unimpaired by war. As to 
treaties by which a ''status is permanently established or 
a right permanently vested," it would have been intder^ 
ble if the breaking out of the War of 1812 had broken the 
f <»ce of the acknowledgment of our independence by Great 
Britain in 1788, or if a subsequent war had broken the force 
of the treaties settling boundary disputes and left all those 
disputes to be settled over again. Another exception is that 
of "treaties estaUishing arrangements to irfdch third pow- 
ers are parties, such as guarantees and postal snd other 
nnions.">« Beyond these lines, the law has been little da- 
vdoped. Continental writers incline to the view against 
abrogation, except in the esse of treaties of aHianee^ and 
there may be a tendon^ in that direction; but it 



itBvt ■Ml^ifri.puSieL 

u ]foM% Th« Xff«i of War OB Pkifclie IMil% OolnAla law BMnr. 
▼oL I. ^ SIC 

MWfiltak^ n iBtanatioBia law, ML 



Ml ooOTffprointtWT ov wii. 

be taid to liare jet attaiiied the dignity of law; udt ez- 
,, eept as to treatiei whoae oontinuiiig oUigation . is dear, 

Ji it k adTiaable to deal witk the aabjeet in the treaty of 



;li 



I'll! 



!!^ » 






;§;. 



BfTeel on oonmeralal intereonne^-It k usual to sUte 
that war itsdf renders all intercourse between private pei^ 

j. sons inyested with tiie enemy eharaeter iIlegaL KHule this 

may in a strict sense be tme, there ensta a tendency to 
that intercourse not nnequfrocaUy forbidden ia 
|1 aUowed, which practically amonnts to the doctrine of the 

continental pnbllcists, that it ia not the war itself that 
renders snch in t ercourse illegal^ but its prohibition by tiie 
political autiioritica. This tendon^ waa ahown in the opin- 
ion of the Sapreme Coort of the United States^ in the case 
of JfoiaMe e. JfeSlM^» decided in 187S. The ipiestion fai- 

I j TolTcd was whether a partnersh^ existing between rpsi^ 

dents of New Tork and Lonisianay at the ootbreak of \he 
CiTil War was still in existence on April 23, ISO, the 
coort haling already held that the nreiident had recog- 
nised a state of war as existing hy lus blockade prodamap 
tion of April 19, while the prodamation of nonintereoorse, 

;;l which Ckm g rc sa had authorised on Jnly 18, waa not issoed 

tOl Angnst 10. If the war itsdf broke aU le^ rdations 
between enenues, then the partnership was dissolTcd hj 

|j;''| April 19; but the eonrt hdd that the partnenhip waa still 

i|i ; in existence four days later. What makes the case the 

move important is, that early in the oidnion Jnsttce Strong 
says *'it is undeniable that civil war brings with it all 
the copseqawiccs in this regard (as to the cessation of 
commereiBl intereoorae) which attend npon and follow a 
state of foreign war." Farther on he sayst ''No dedara- 
; jl tion of war waa ever made. The President recognised its 

|;.| existence by prodaiming a blockade on the 19tii of i^pril; 

• ' and it then became hii duty as wdl as hii ri^t to direct 

how it should be carried on. In the exereise of thk ri|^t 
he waa at liberty to allow or license int e ie uui se^ and his 
prodamations, if th^ did not license it expresdy, did, in 
onr opinion, license it by i^ery cogent in^cationa. It is 

i^jj impossible to read them without a conviction that no !»• 

terdiction of eommereial intercourse except throng the 
ports of the designated states waa intended. But in a 

T. 



ooMMncuL nmEBOOum. Mi 

ebil mora fhin in a foreign war or in a war dodaredt 
it is important that nneqnivooal notiee thonld be given of 
the lUegelity of traiBe or eommereial intereoone; for, in 
a eivil war only the goremment can know whmi the in- 
inrreetion has asramed the eharaeter of war."* 

AitenUellon of oomnereial interoonne^— It k desiraUe 
that the view that war iftsdf does not pat an end to eom- 
mereial int e reonise^ hot that its illegalllgr depends on its 
interdiction by tiio political anthoritieB» ahoold find even 
wider reeognition that it haa; for, when once the atoppago 
of traflie reqoirea poaitive aetion on the part of the anthor- 
itiea» a long st^ ahead haa been takm in aeeoring the 
eontinnance of tiie ordinazy conditionc of peace between 
thoae parte of the territoriea of the bdligerente not the 
aeene of active military operations. Where commerce is 
allowed, the role that an alien enemy haa no standing in 
court does not apply, and eontrmete can be made and en- 
forced as in time of peace.^* Since the beginning of the 
Crimean War, a very large indnlgence in commerce be- 
tween belligcrento haa been allowed. Thna, in the G^ianiali- 
American War, neotral Tessds laden with AmericanKiwned 
cargoea other than contraband of war were deared tor 
Spanish ports."* 

nreatment of the dtiieDS of the other beDlgsrsnl in Oe 
oomtqr it the outbreak of war^— Even where 
ia generally interdicted, it may now be aaid to have 1 
a mle of law that a belligerent mast allow a reasonable 
time for the natiouda of the enemy to dose up their aAdrs 
snd withdraw from the country. An exception waa made 
to thia prindple with regard to those nationala called home 
for aervice in the active army, by the Rrench in the Fhmco- 
German War, and ite reasonableness hss e<»unended itedf 
to Cdvo and others. It hss even become eostomaiy to 
allow the nationala of the enemy to remain in the co imtr y 
thronghont the war, on condition of good behavior, bnt 
they are often sabjeet to regulatioaa, audi ss registration, 
and esses msy essily srise where expolsion is jnstiflable^ 
althoagih it hss generally been considered that the opal- 

MOl IMtcd StelM, pp^ li-ia 

If Fhffliawn^ IbIs. Law. m. pp. 114-lSa. 

uMooi% iBte. law SitaatiaB^ pfi 170-177* 



M4 OOlMXEKOMMEn OV Wll. 

don cf the Oomaiis by tlM Aeneh in 1870 wm 
wad eanried out witk umeeenMuy hanhncH. 

Bla^ to ivitlidnw goodi in «• tarrilofy cf «• 
bdUgvml al tlie onlbraak cf war^— Withdrmwal of goods 
from the enemy^ ooontry within % reaaonaUe time after 
the outbreak of war, doea not render them liable to eon- 
flaeation on the ground that the owner haa been engaged 
in eommeree with the enemy. So the Sapreme Coiort of 
New York held in 1818," in an opinion ddirered by Chief 
Jnatiee Thompaon, afterwarda a member of the Sapreme 
Court of the United Statea and one of the ablest jndgea 
that ever aat on that beneh. The eif eet of thia deeiaion 
ia somewhat restrieted by the previo o a deeision of the Su- 
preme Court of the United Statea in the caae of Tk§ BapULJ^ 
in whieh it waa held that, where a person went after the 
outbreak of war to withdraw gooda from the enemy'a tetw 
ritory, eren thou^ they had been purchased in time of 
peaee, he waa guflty of trading with the enemy and hia 
pr operty sobjeet to eoniiseation. But thia deeision is eon- 
traxy to the tendencies of today and would probaUy not 
be fdlowed. The right to withdraw gooda would probaUy 
be held to indude the right to dispose of them, or the rii^t 
to put them into such shape as to be essily transported, 
provided thia waa done in good fkith and without the in- 
tention of engaging in forbidden tratte.*^ 

Ho right to oonfiaoato psivato debts^— Again, although in 
the past, tiie right to eonilseato the property of subjeeta 
of the enemy, including debts due to them by prirato per- 
aona, haa been asserted, and althoni^ dida to that effeet 
are to be found in the caae of UniUd BiaUg agmnH BrawnJ^ 
such a pontion would be dearly untenable todaj,** and a^ 
government attempting to exercise sndi a power would be 
severdy oondemned** -eren without the express prohibi- 
tion dntwn up at the Second Peace Conference.** 



ttAmmj «l aL T. lIMngor, IS 
MS Grrac^ ISS. 

nPorty-two taks of eottoa, Bbtchfoid^ Pite Om«, SS4t 
Starr tad cugOk Blatdifotd% Prin Omm^ MSl 
tts Gnac^ lit. 
••SmHZLYL 
MiU to tho oetloB of tho rkited Stiiici tad 

dvriag tko Chrfl War, loo Mfv«» fu TS. 
»H ZXm (h). 




■Utos of an enemy merefaint ibip at the ovUinek of lio^ 
tilities was made the mbjeet of the folhywinc eeanreiitka 
at the Seeond Peaee Goof erenee, althoo^ it waa not aicned 
or ratified by the United Statea. 

Anzknia to enanre the aeeoritj of intematiiwial < 
againat the aorpriaea of war, and wiahing; in 
with modem praetiee, to ^oteet aa fxt 
tiona nndertaken in good faith and in proeeaa of 
eanried oat before the outbreak of hoatilitiea; [the Fleid- 
potentiariea of the Contraeting Powera] haire agreed npoii 
the following fo^fUmmt 

Abx. L Wk§m a merduM Aip hiiUmg!m§ la one «f Oe M- 
Ug$rmii Pamen u §t fk$ eammmeimeiU c/ hotHKUit in an 
en$m§ port, ii it detbubU ikai ii Aould h§ dlaw§i U i$p»i 

d4i§$ if grae$, and to prooB^d, afUr hmmg fmrmAad wUk a pam, 
dired to ilt port of (tolmalieii or any oOar poH taiKoafif. 

Tk» mm% f%iU A»M apply «a tike tnm af a Mp whieh kat 
Itfi fit poH e/ dijMriiira fr^rt Oa coat annet aia af af Aa wot 
aid anUred a pari haUmging io ika anaaiy, wftSt mKB igmofwU 
ihai koMUm had Wolam omL 

Abx. IL A aMrckanl Aip, mmMa, ammg U d mw n tf awcai 
of farea majoura, U Ua»a fk$ anaaiy pari wUkim ika ptnad 
eoniemplaiad im ike akaaa AfHda, or wkkk waa mai oBowad ia 

n^wavw^ ^^Ww ^evw V9 ^^r^aynw%^B^^w^^ 

Tka hdHgarani map oaip dalain %i, vtfftonf yoyaianl of coan 
ptnaoliofi^ hui aahjaei io ika MigaUom of raaiorimg U afiat Aa 
war, or raqaHMotk U on papmaai of oampatwaKom^ 
* An. in. Bnamp aiardbanl ahipa wkuk Ufi Aair latl pari 
of dapoHura lafora ika eomoMneamaai of Aa war, and ara an- 
eouniared on Aa kigk aaaa wkUa Mtt igworard of Aa anAraah 
of koMUHaa cam moi ha eemfiaoalad, Tkap ara aa^ KaUt ia 

ika war wiAovl atrnptnaolum^ or io ha ragirftifiaaad, or aaam 
deairopad, on yaymeni of ooai^panattium, hti im aoA eaaa pro- 
vition mail ha mada for ika aafatp of Aa jw aa aa an toard aa 
wM aa ika aaewntp of Aa Mfa papara. 

After iavcJktay ai a pari In Aatr awn eoaniry oreda n a n tra l 
port, ikeae aUpa ara aabjeei ia ika tawa amd entCoaw of 



Abx. it. Aiamy corya am Stand ika attatb r^anad ia in 



M6 ooMMnoBian m wii. 

ArHOm I md U U Kkimm KahU to U i$iain§d oni ruhni 
afiir ih§ UrmbuMom of ih§ war wUkoui papnmi cf eem p m- 
ioiiath or (oho re^mnHonid am papnani af eampemitiaii, wUk 

Tha ioma ruU appiiea im ika com af earga am laari &« Mt- 
$09 ramrod fa •» AHuU III. 

An. v. Tha pruami OanaenMom iat mai afad fMnkami 
Aipa iplboft ftttiM A/oma Ool fka§ ara tirf gf u M far convemM 

Dteppmral of AnMirhmii di!lflgatioiL-^''Th6 iiiiinterni]yt- 
ed pnetiee of bdligerent Powen sineo tho outbreak of tte 
Crimean War haa been to allow enemjr merbhant yeaada 
in Ojjr forU al Oa amXIbraBk af kaMUUs, to depart on their 
return Toyagea. The aame inrivflege ham been aeeorded to 
enemj merehant Tenda whieh aailed before the outbreak 
of hoatflitaea, to enter and depart fhnn n belligerent port 
withont moleatation On the homeward Toyage. It waa there- 
fore the view of the American delegation that the privilege 
had aeqnired aneh international f6ree aa to place it in the 
category of obligationa. Sneh, indeed, waa the view of a 
majority of the Conference, but aa the delegation of Great 
Britain adhered to the opinion that anch free entry and 
departure waa a matter of grace, or bvor, and not one of 
atrict right, the artidea r^ard it aa g delay by way of 
&Tor and refer to the practice aa dmrabU. • • • But 
an theae immmdtiea are conditioned upoa ignorance of the 
enatence of hiiatilitiea on the part of the chip. Thia con- 
dition forma no part of the exiating practice, and it waa 
the opinion of the delegation that it anbatantiaUy neotral- 
iaed the apparent benefita of the treaty and pnta merchant 
aUpping in a mndi leaa &Torable aitoation than k ao- 
covded to it by the international practice of the laat fifty 
yeara."* 

The law independanl of oonrentfanu-The legal podtion 
taken by the American ddegation ia anpported by atrong 
authority. Such an able Britidi pnbliciBt aa Weatli^ 
writing juat before the Conference^ waa of opinion that 
the liberal practice of tiie laat fifty yeara had rq>ened into 
law,"* and probably few who bdieve with the Ouiirem e 



»niportortte 

»n lataiMttad lew, «L 



ifKiOKAinr jHiw, MMf 



Oonrt ia tba eue of tba PtiqmU Habam^ tiiat the en- 
toiiiu7 law «t natfamt k tabjeet to grovth, would diffv 
from hiBL It was matter for argii]ii«Dt| bowerory and prob> 
aUj littlo importanoo would hava beeii attached to the 
word **derirable" if tho ezMtuig praetiee had been em- 
bodied in the oonTontion in the form it has nsoaDy ^ipeared 
in the prise regolations. The nde of the eonTentkm does 
not dlif cr as to the moot oraal ease^ where the ddp arrives 
at the hostOe port without any saeh informatioa as to 
charge it with knowledge of the hostilities, bat the pro- 
vision with regard to knowledge is new, and msy be of 
considerable importance if the enemj cnusers choose to 
lie off the hostfle ports for the purpose of noti^jring incom- 
ing merchant ships. It is slso of importance. to ships 
equipped with whrdess telegraphy apparatos. The idea 
to be that it wonld be un&ir to captore a hostile 
in port at the time war breaks oat, or even one com* 
ing in afterwards in ignorance of the hostilities, bat that 
if an enemy yessel becomes aware of hostilities before m^ 
tering an enemy port, it is only natural that 
return home or seds a neutral port This 
less liberal than practice has been, bat it ii 
onless one sees in the practice the entering wedge for the 
exemption of private proper^ at sea sltogethcr. 

Apparent nrisoonoeiption in Amsrioan report— In eritieis- 
ing the Convention, the American report goes on to ssy 
that "an enemy merchant yessel approadiing a hostila port 
which is notified by an armed cruiser, or which dbtsins 
the information under circumstances calculated to chsrge 
tt wiOi knowledge of tho fMt that hostilities east, f orf cits 
tiie immunities eonf erred by the treaty and becomes ee 
insianie liable to capture."** If this is intended to mean 
that a ship which hss been warned and changes its conrss 
for a home or neutrsl port, is liable to capture, it is sub- 
mitted that this is error. The second psragraph of Article 
m would then have no signification. That paragnvlii 
be taken to mean that tf after* receiving notice of 
tilities, the ship makes for a neatrsi or home port^ It is 
not liable to iesfliife until it hss touched at one er the 
other. Altlioui^ not liable to eapture^ however, it is Bshle 

itnsu. 8«eiL 
MP. sa 




MM OOXMXNOnCIIIT OV Wll. 

to detentum without eompeDsatioii, or to reqnkitioii or ef«B 
dertmettoii, with eompuniiation. 

On the whole it it not perhape nnnatiiral that the Amer- 
ican delegation took the attitude th^ did towarda thia 
Conrention, in Tiew of their stand for the ezemption of 
private property at lea from eaptore altogether, ud even 
on the narrower gronnd that it waa lev liberal than the 
exiiting praetiee, but it might wdl be urged that it waa 
not eo mueh a change firom eziating practice aa a more 
carefol and matured expreedon of it, and that H aubati- 
tuted for a practice of donbtfbl obligation and uncertain 
tenor an agreement that waa dear cut and rational, if not 
aoliberaL 

Chmtraeta made during the general aoapenaion of inter* 
eome are in general void^— Contracta made with the en- 
emj from the time that the general interdiction of eom> 
meree goea into effect until the interdiction ia raised, are 
in genml void. This, howerer, doca not apply to eon- 
tracti entered into by nationala of the oppoeing bdligerenta 
both rending in the territory cf one of them, where it ia 
dear that the contract waa not entered into with aqy 
dedgn of violating the policy of nonintercouzae. So a 
lease made during the CSvil War in MJsdsdppi, 1^ a dti- 
aen of MissisBippi to a dtiaen of Msasachusetta, whoae resi- 
dence waa in Mississippi, where the continued reddence of 
the lessee upon the demised premises throughout the tem 
seemed to be contemplated and where there waa no evi» 
deuce of intention that the crop or the rent ahould be sent 
aeroos the hostile lines, waa hdd to be valid.** 80^ alao, 
contracta for the rdief of the necessities of pnsonem of 
war in a hostile country have been hdd valid. 

Chmtraeta rendered voUL-^Cionversdy, contracta which 
necessitate intercourse between the two countries are ren- 
dered void. Thua, partnerships are dissolved sa wdl aa 
agendca to collect and transmit mon^; but an agency to 
collect and hold money if auch agency waa ereated bdEore 
the war ia not annulled.^ And where, by the terma of a 
policy of insurance, the contract waa avoided by the non* 
payment of premiuma, it waa hdd that althoui^ the 90^ 



••KmUw V. KdMy, ICO Vmm^ SSL 
■HfntftlMwi V. lldSlMi, 01 Dalltd 8UI«, < 
Difl^ SS U. fli, 411. 



jtfFjnr 6v ooviBAon. .809 

btflnoe of war, and the eosMqneiit legal inabflitj to paj 
the premioiiiay whieh had fallen into arreai% had annwiled 
the eontraety yet the insured was entitled to reoover back 
the eqoitaUe valne of the poli^ at the time the war hrdko 
oat- 

Imaraaoe agalnit tlio aela of the fov e n m enl of tliolA> 
sorer*— Inaoranee against the action of the government of 
the insurer is held to be void. It seems eminently reason* 
able that the government should not allow its nationals 
to nullify its own acts by giving insuranee against them. 
In a ease arising during the South Afkiean War, insuranee 
was allowed against the act of the Transvaal Government 
in eonunandeering the property of a corporation, originally 
incorporated in Natal but also incorporated in the Trans- 
vaal- Whether the corpwation be viewed as a British 
or as a Boer— corporation, this decision was eminenfly 
sound, for the rule is that an insurance company shall not 
nullify the act of its own government, not that it shsU 
not nullify the act of the enemy. Insuring a British cor- 
poration against loss by acts of the enemy would cortainly 
be proper, and there seems no sound resson why an enemy 
corporation should not receive like protection, ss forced 
levies during war are more likely to be caused by the tut 
that the incorporators are members of the state hostile to 
the one that has incorporated them than by aqy other. 

Bight of alien enemy to sne^— It haa been the general 
rule in Anglo-American courts that an alien enemy has 
no right to sue during the cessation of commocial inter- 
course; but, even before Justice Story's time, the plea of 
alien enemy was not favorably received,— and it was held 
to be necessary to ^ forth in the plea every ftuet that 
would negative the plaintiff's right to sue. The Supreme 
Court of the United States has also held that, ''whatever 
may be that extent of the disability of an alien enemy 
to sue in the courts of a hostile country, it is dear that 
he is liable to be sued, and this carries with it the rii^ 
to use all the means and appliances of defense.'^ 

M New Toik Life iBi. Go. V. StstlMiii, SB U. a, •«. 

•tNigd Gold IfiniBg On, UL. v. Hoedt^ 2 K. Bl (1901), U^ 

MDffUAntciB, cfte. Warn, Ltd, t. Jssmb (ISOlh t K. B, 41SL 

»Tlw SoeMgr, cCe, v. VIThMkr, 2 Gftmna, 127. 

MlleVdi^ V. Uattad BMm» U Wslba% OfT. . 



tlO ooxMSHdMBrr or wii. 

The effect of the disabilitj to loe het been that the 
•lien's remedy hae been for the time suspended, not that 
his right has been eztingoished. There are eases in the 
United States that hold that interest aeeming dnrinf war 
eannot be eoUeeted afterwards^" but the better opinion, 
even before The Hague* Convention, wonld appear to have 
been that of Lord Ershine, in a bankmpt^ proceeding in 
1806^ in whieh he hdd that the dividend due an alkn en- 
engr shoold 1ni reserved for him, aa it waa onlj the right 
to reeover whieh had been suspended.** Judgments gained 
before the war, but not ezeoited ean be enforeed after- 
wards; and, as a general rule, the running of statutes of 
limitation has been suspended during war.** 

Apparent change in law.r— The Inw on this s objee^h ow- 
ever, appears to have been vitallj ehanged by H XXm (h). 
A fkir interpretation of that provision seems to do away 
with the plea of alien enemy. If it does, and aliens are 
allowed to sue during war, then thoe ia no longer reason 
for the general suspension of the statutes of limitations. 

Where commerdal intercourse is allowed.— The disability* 
to sue and make contraeta must be underrtood to exist 
only when commeree is not allowed. So fur as 
ia allowed, contracts nmy be made and enforced. 

lOsceDaneons ndesy— In priae proceedings, 
than in ordinary proceedings, the rule that ignorance of 
the law excuses no one prevaila. ft is the ulterior desti- 
nation of goods that counts at least in trading with the 
enemy, even if the route be throui^ a neutral c ounli y . 
The liability to conflscation for iDegsl trading lasta till 
the end of the vi^yage and then terminatea.** MHitaiy 
Occupation in itaelf does not legaliae intercourse with tav> 
ritory, traiBc with which has been prohibited/^ 



to the interdiction of trade have in recent times 
been general in thdr application; but^ in the peculiar eiiw 
cumstanoes of the Nap<deoide Wan, Great Britain made 
extensive use of special lieensea, 16,000 of them being b- 



wBet nofet hi Seotl^ Guv m JaAtnmXknd Law, pu SSSl 

U BouMHikv, la Ymt^ Jan, 7L 

• V. AiAt/tt, e WaE. fML 

- blmatloBBl L«w, ToL IL » ItS-lSS. 
MHaadnoB v. DOUa, tl WaflMib HL ^x 



uosmn. Sll 



mied in tlM ytm 1808 and 1809, and 8,000 in 1811.« A 
great bodj <Kf law waa developed with n^pffd to theoL 

Bvlea aa to Uoeuea^'^A Ueeoae la a kind of aafe^on- 
dneti granted 1^ a belligerent State to ita own aobjedi^ 
to thoM of iti enemjt ^ to neatzala» to eany on a trade 
wUeh ia interdicted by the lawa of war and it operatea 
aa a diapenaation firom the penaltiea of thoee law% wilh 
reapeet to the State granting it, and ao ftff aa ita tenia 
ean be fairij eonatmed to extend. The oflieera and tri> 
bnnala of the State nnder whoae anthoritj th^ aio inned 
are bound to reapeet aneh doeumenta aa lawftil relazatiena 
of the ordinary atate of war; bvt the adverae belligerent 
may jnatly eonnder them aa per m a gronnd'of capture and 
conflieation. Licenna are necesBarily ttrieU paig^ and ean> 
not be carried beyond the evident intention of thooe by 
whom th^ are granted; neverthdea^ th^ are not 
atmed with pedantic acearacy, nor will their fair 
be vitiated by every ilight deviation from their 
and conditiona. Hnch, however, will depend npon the 
natore of the terma which are not complied with. Thna 
a variation in the qualify or ckaneUr of the gooda will often 
lead to more dangerona eomequcncca than an ezccH cf 
quanUig. Again, a liMoae to trade, though aafe in the 
handa of one peraon, might become dangerona in thoee cf 
another; ao alao with reapeet to the limitatSona of lime 
and jrfocc apecificd in a licenae. Sach rcatrictiona are often 
of material importance, and cannot be deviated firom with 
aaf ety. A liceoae may be gnalifled, in which the parly 
aeddng to protect himadf nnder it mnat eonfonn ezaelly 
to ita reqaiaitiona."^ 

Thia paauge firom Halleck indicatca the natoro of the 
qncationa which aroae in connection with licenaci, bat into 
which it woold be naelcHi to enter in detail 



ttOUvCb U Dnit binntioeal, ^ t 

, u«. Lew, p, aia-aik 



SU BHiMT OHAiAoxii Am nonm; 



CSHAPTEBEL 

mXT OBARACm Am 



Htolnl p i wi|iwtj JdwitHlad with tte oomitey ii nibjael 
to tha niM ItabUttiif at that hAmi^fiDg to otttiaiia of tba 
ooiuilrjii— Ai proYiding for the needs of an anny in a for- 
eign oonntry, it makes litfle diiferenee whether the snp- 
pliea taken are owned by peraona owing allegianee to the 
enemy or to a nentral power. Am Ffirand-Girand aaja. a 
eommander nnder the neeenity of providing for hia army 
eannot atop to argne the question aa to whether provisiona 
whieh he ehanoea to need belong to enemiea or nootrala.^ 
Where the proviaiona are in eonzse of transportation, and 
the nentral eharaeter of their owner ia apparent on the 
fkee of it, only extreme neeessity ean warrant their seisure; 
but when sadi indieationa do not exist the eommander ia 
justified in treating thoae who have identified themaelTes 
with the eonntry in the same way in thia respeet aa those 
who have entered into the doaer relation of pditieal aUo- 
gianee. Beqnisitiona and Contribntiona are swesied to 
the former to the same extent aa to the latter, and ao long 
aa the belligerent 'doca not exceed the righta whieh the 
laws of war give him with regard to the lifter and treata 
both alike, the nentral goremment haa no gronnda for 
eomplaint 

ftealment of naotral railway material —The treat ment 
of nentral railway material ia provided for by Artiele XIZ 
of the Convention respecting tiie rifl^ts snd duties of nen- 
tral powers and peraona in ease of war on land, aa foUowa: 

BMwof matmdl eomtsf from ike UnUorf of aeiilral P9w» 
en, mhdker tl is Ilka pn^perig of ike tdd Powen or ef Cost- 
panm or frivaU permms, and teeagmMobU a$ muik, MB moi 
h$ r$qumUoned or uKKMed >y a hdHgereni, except wkere mid 
io ike exUni Oal U ie oheehMp neeeeearf. It ehdU &• aonl 
hack Of eoom ae poeeMe io ike eotaUrf ef oH^ 

A neiOnl Power ma§ Kkewiee, m caee of neceeriip, reiaim omd 

iVinmd-Ginuid, Bseoon S Baina an Dommisci, Omte pnr la 
p. tTiL 



VEOniL MMIWUI I l , JIS 



miaiM$ to am $fml ixUtU mgUridt eomimg from ih§ UnUorg 
9f iko haiii§$ntA Pomor. 

Camp$9^aaUan dum h§ paid tf oiii partf or iko oikor in frv- 
portion to ike maUrial aied, and to iko period of meago. 

Bii^t of Hgaiy^— The aeeoDd parasnph si^inff the 1100- 
tral power a ri^t nmilar to ftet of the bdUgerents k 
new. The reet of the artide it a eombiiiatioii of Aitidm 
Uy of the original Hague Begiilationi» and of the prii^ 
dple identified with the right of angaiy that the invadMr 
can seiae nentnl property diitingniehaMe aa aoeh^and not 
identified with the eonntry, only nnder prewring neeeHitj» 
and that then eompeneation mint be made. 

LfataOlty of nevtrab domkiled la a belligerent eomSiy 
to militaiy eervioei^-In the same way the eoontiy in whi A 
the nentnd haa settled may require ef him all the peeoniaiy 
support which it may ezaet of its own dtiaens, and may 
also require of him aid in suppressing local disorder, aa 
no more than a fsir return for the protection he has en- 
joyed. That the bdligerent may go beyond this, and may 
require aid of domiciled fordgners in rqpdling iuTSsiony 
waa claimed by the Confederate Government during tho 
GiTil War and was not denied by the British Oorernment, 
although the latter claimed that this prindple waa not to 
be applied to the case of a eMl war, the partidpanta in 
whidi were liaUe to be treated aa rcbds, and that in aay 
OTcnt time should be allowed, after the passage of the 
act, for these who desired to do so, to leave the country. 
The drafting of domiciled aliens for service in foreign 
wars would certainly seem harsh; but it docs not appear 
to be unreasonable to hold that those who have perma> 
nently taken up thdr abode in a country diould beer thdr 
part in repdling invadon or in preserving the integrity 
of the nation, at lesst after due notice haa been given and 
especially after those who have come merely for purposes 
of fordgn trade have had a chance to leave.* 

Attempt to place the nsutrsl in a mors favored posltiosi 
at the Second Peace Oonf erenee^— The attempt waa made 
at the Second Peace Conference to place the neutrsl re» 
dding in the territory of one of the bdligerents, in a 



• 8m eow wp oadMo mm to OntOag BriHik ssbJMls 
tlM EaaXh Omiag the (Ml War, FuL Te^tn, lOOi, YoL C^ 



%H' MMMMt OBAMAOm AJTD 

mora favored position than aboro indioatad, bat t lio on ly 
reaolt of tliat attempt waa tlie adoption of Artide XVI of 
the Convention with regaid to the righta and dvtiea of 
nentrala on land to the effeet ''that the natlonala of a State 
which ia not taking part in the war are eonaidered aa nan* 
trala.'* Withont the artidea to whidi it waa to aerve aa 
an introdnetion, it leavea the law unchanged.* The al- 
titode of the United SUtea in thia matter can be aeen 
from the f dlowing^ extraeted from the report of General 
Darii, and faidnded in the report of the Ameriean Dd^ 

'at haa been aeen that both the committee and the Ood- 
f crenee ilnaOy reacted a propoaition which had been pf»> 
pered w|kh a view to minimiae the effeeti of war npon 
neutral coBimeree and in eonf ormitj with the tendendea 
of \ modem indnatry and trader which demand for their 
devdopment and maintenance the widcat marketa, and 
which are in the highcat degree eenntiTe to the distoilnng 
efhcta of war* 

"The German propodtion, by protecting atodm of gooda 
in the handa of neatal agenta in bdligerent territory fkom 
■eizore or reqoudtion, waa cdcnlated to ghre to neutral 
nndertakingi tho faroadeat immunity from bdligerent in- 
terf crenee by rcatricting the burdena and operationa of 
war to the bdligerent Statea and thdr aubjecta. But the 
propodtion eo eoncdved and aubmitted waa diwniwed with 
the f oUowing exp rc a d on of desire, whidi may be aeeepted 
aa showing the importance which ia attached to the derd- 
opment of modem induatiy and commerce by a majority 
of the Governments of the dviliied worid: 

"The Conference e x p re s s es the hope: 

"L That in caae of war the eompetent authorittea, dvil 
and mHitaty, should make it thdr apodal duly to assure 
end protect the eommerdal and industrial rdationa be- 
tween the bdligerent Powera and neotrd Statea. 

"IL That the high (dgnatoiy) P^ywera should secEk to 
•establish in agreemcnta with each other uniform eontract- 
urd undertakingB determining in respect to military bui^ 
dens, the rdationa of each State in respect to the strangera 
estobUdwd in ita territOKy/"* 



• 8m W«t]a% n Unaatlood law, tse 



OOXXSMUL DOXICIU 815 

duffmetaTir-Printe property at lea bdooging to 
the enemy or inveited with enemj charaeter k etiD eoii- 
llMable. In determining who are enemiei, Franee» and the 
continent d Borope in general, haa followed the rimple 
role of eonaidering aa enemiea all those who owe aUegianee 
to the enemj power. At lint bloih this would seem to 
be the natural role^ bnt aa it ia the enemy's eommeree 
that is to be stmek at, and not hia person, the more prao> 
tieal role for this pnrpooe woold appear to be to treat aa 
enemies all those who eariy on enemy eommeree, or, in 
other words, all those whose commercial domieil is in the 
enemy's eoontry. This is the role followed hj the conrts 
of Great Britain and the United Statea. 

Oonunereial domtolL- Commfirrial domidl ia acqoired by 
taking up residence in a eoontry with the intention of en- 
gaging in bnsiness there permanently. In determining 
whether it haa been acquired, a great Tariely of dreom- 
stanees must be considered, such sa the presence of the 
family, the ownership of real estate, the payment of taxea 
and the enjoyment of poUtieal righta; bnt the most in^ 
portent are the natore of the bnainess and the time dur- 
ing which it has been carried on. Entering on a bnnness 
permanent in ita nature, ia snfBcient to constitute domieil 
immediately; and although the original purpose of the resi- 
dence be to coUect debts or to manage a psrtieolar undes^ 
taking, a long continued stay is sufBcient to ontweifl^ the 
original purpose. But the domieil of ori^ easily rererts. 
Whenever the intention to remain is changed and is shown 
by facta which amount in good faith to a putting in mo- 
tion to return to the country of origin, the domieil of orii^ 
revives even before departure from the country. 

P rup e i ' ty of dtisena domteOed In the en«ny*li oonntqr 
at the outbreak of war^— In the case of 7&« FmnhF it waa 
held by the United Statea Supreme Court, by a vote of 
three to two, that the property of an Americsn citiaen, 
domiciled in Great Britain before the outbreak of war, 
which waa shipped before the beginning of hostilities, waa 
subject td confiscation, notwithstanding that previou s to 
the decision, and within a reasonable time after the out> 
break of war, although after the capture, the owner put 
himself in motion to return to his country. Ghiet Justice 



S16 mXT OHABAOTBt AM PBOFU TI , 

MaiBlially howerer, in a ▼igoroni dineiitiiig opimon, 
tained tliat a penon in aoeh a situation alunild' not be 
prenimed to liave intended to eontinne in the eneogr's eoon- 
try, and that lite property ihoold not be eonflieated nntil 
he had had a fair opportunity to leave the eonntry. Thii 
opinion, whieh aeema not only to liave been the more reip 
■onaUe one^ bat the one with the greater weight of au- 
thority behind it, wae ezpreedy approved in a decinon of 
the IQng's Beach, in 1901, in a eaae growing out of the 
Sonth African War, in which it wae held that the prop- 
erty of a Transvaal corporation, seixed at the ontbreak of 
the war by the Transvaal Government, should not be con- 
sidered enemy property, sa the corporation, whieh had 
originated in Natal' and was still incorporated there and 
essentially British, was not to be presumed to intend to 
eontinne its operations in the Transvaal during the war.* 

Houses of t rade^ Commerce carried on throng houses 
of trade establiriied in the enemyls country, or hf means 
of special privileges, such as monopoly and incorporation, 
is affected with the hostile character, although, as just no- 
ticed, the British courts have shown a tendency to look 
behind the corporation, to the nationslity of its members, 
when it has suffered firom the hostile action oi the gov- 
ernment under which it is incorporated. The establishment 
of a mora agency in the enemy's country, however, has not 
this effect On the other hand, the commerce carried on 
by a person domiciled in the enemy country, no matter 
when it may be, is affected with his enemy character, as 
is also the interest he may hold in a psrtnership established 
in a nentrsl country. Whera a man's time is so divided 
between different countries that none of them can be said 
to be his commercial domicQ rather than another, only the 
commerce carried on bf the house in the enemy country 
is considered hostilo. 

Snemy character of the prodncls of the enemy's sofl and 
of the ddps l^jiag Us flac.r-The sofl of the country is so 
inthnately related to the country itself that its prodnee, 
while in the hands of the original owner, is affected with 
its hostile character, although the owner of the soil may 
himself be neutrsL Military or dvil service in a f oragn 
country, or habituiil employment in its merchant 

•N%d Gold Ifiaiiv Oft, UL, v. WmU, 2 K. Bl (1901), Uk 



alio imparti ilia national eharaeter of tbat eonntry durinf 
tibo aenrioe or employmeiit The enemj eharaeter of Ike 
owner k imparted to ahqie as to other property, and the 
DM of the flag or the paae of the enemy, or the engaging in 
hia trade, alao affeeta them with that eharaeter, althonfl^ 
in IVanee the proaomption that a ship sailing under tha 
flag and pass of an enemy ia an enemy sh^ may be ovfls^ 
ecHue by proof of ita nentral ownership.' 

Ransf er of property In transttSL— In general, eommeree 
between a bdligerent and a nentral may be carried on in 
time of war as in time of peaee^ bvt the likelihood of tha 
belligerent endeavoring to protect hia eommeree nnder the 
gnise of neutrality has given rise to certain ndes in the 
British and American courts as to the ownership of prop- 
erty ta imuiiu not applicable in time of peace. One of 
these is that transfers of property m irmmiu during war 
are invalid. In the 8areni$m cases the Privy Coundl do- 
dtfcd the reason of this to be that mere paper transfers 
of property ta imntUu, without delivery, were too liable 
to be colorable in time of war to be reoogniaed. Where^ 
however, delivery ia poauble before the termination of the 
voyage, the Privy Coundl held that the role did not iqi- 
ply, and that the transfer might be perfected on delivery.* 
The rule ss to the nontransferability of property ta Irvaftlii 
in time of war docs not extend to transfers made imma- 
diatdy before the outbreak of war, without the intent to 
avoid belligerent eaptore. 

Ownersh^ of oonslgned goods and nonreoog n iaon sf 
UeuL— It is also held that, althou^ in time of peace there 
may be a special agreement that goods sent in fnlfillment 
of an order, which ordinarily vest in the consignee on dfr> 
livery to the common carrier, shall become the property of 
the consignee only on delivery to him, no such agreement 
can be set up in time of war aa to goods sent by a nentral 
consignor to an enemy conngnee since such agreementa 
would be used to exempt large amoonta cf properly other- 
wise liable to eaptore. On the other hand, tf an enemy 
consignor retains mnj right in gooda sent to a neutral con- 
signee b^ond that of stopping them in case of the In- 
sdvenqr of the consignee, the goods are still eonsidered 

TBiWcr, PriBdpei da IheU te G«% II, SIS. 
• 11 MooR^ Prify QMnKil Ohmw 14iL 



tl8 

enemj foods. So» lioDi on oUpo or eargoeo, nidi as mori- 
gages, facUm' Ikiis, and bottomry loaiH^ wUeh do not 
attad, as freight does, from the faet of earriage itself are 
neeessarilj OTerriden 1^ the eaptore of tho goods sinee 
otherwise emdemnation proceedings woold be so eompli- 
eated and open to feand as to be almost hopeless. 

ftansf en of ships dnrlar war.r-The transfer of eneny 
ships to nentrals in time of war k allowed, bnt aa soeh 
transfers majbo onlj eolorahle^ they are yiewed with 
sQsirfeioa, and the reserration of maj enemy interest inval- 
idates them. By the eld IVeneh role^ all transfers dutvnls 
diOa were invdid, but this role was abandoned during 
tho Fkaneo-Oeraiaii War and is spparentlj no longer tho 
law* 

OoBviesI by flio enemy oonf ers enemy dmimeter ea tlio 
Inbahltaiits of tlio oon^^snd tsRltoq^— In tho ease of 
Tkiriff Hogtkmdt ef Sugar «. Bdyb, Chief Justiee Marshall 
hdd that, ''although aeqnisitions made during war are not 
considered as permanent until confirmed by treaty, yet to 
ereiy commerdal and belligerent purpose th^ are consid- 
ered as a part of the domain of the conqueror, so long aa 
he retains the possession and government of them. The 
island of Santa Cmi, after its capitulation, remained a 
Britiril idand until it was restored to Denmark."** In 
other words, he hdd that for beOigerent purposes, Santa 
Cms had the national diaraeter of the eonqpieror. Conquest 
by the British had made the inhabitants enemies, and the 
soil enemy soiL It must not be lost sight ol^ however, that 
the oMfued which effects sudi a diange can now only take 
place on the eondusioa of hostilitieB, and that consequently 
the decision in the case would probably be different today. 
Just how the inhabitantB of occulted territoiy diall be re- 
garded is for the determination of the pditicd authorities. 
That enemy duraeter, even for purpoees of maritime cap- 
ture, does not result firom militaiy occupation, aa dbtin- 
gnished fhmi conquest, was early laid down by Lord Sto- 
wdl,** was allbmcd by the Privy Council in the ease of 
Tk$ Ofommof^ growinf out of the Crimean War, and is 



•BMcr, PriBdpn de Dnit te Qtm, P, 4ia. 
•iSGMMl^iaiL 
titWBnle Am, 1 
uil Moon^ Privy 



OB rAcio fOflnasuw. S19 



iipleUlj in line with modern tlieoiy as to be appi^ 
rently begrcmd ■erioos atteek. 

ahagaeter of tetiitcty In do ftoto pweiiloB ef ottier biU 
Hgarint— Where one of the belligerenti holda d$ fmdU poa- 
aenon of territoty, without having the legal title to it» it 
ia for the political anthoritiea of the other bdligerent to 
decide whether aoch territory ahaU be indnded in hoetile 
measorci^ and whether the inhabitanta ahaU be treated aa 
enemica. This aitnation ariaca not onlj in caaca of mil^ 
taiy oeenpation iNroper, hot- alio in caaca of praeticaUj 
permanent oecnpationy each aa that of Boania and Henig- 
ovina \fj Aoatria and that of Egypt by Kngland. In anah 
caaca it ia £aet| not Action, that ahodid bo regarded, and, 
if the titular aovereign la ooJy nominally anch, hia nentealilj 
ahoold be rccpected, while against the i$ fade power it k 
pcrmiaBible to take any each action aa would be jostifled 
against a aovcreign who ia aovereign in name aa wdl aa In 
fket» 

Pttaonal vntona^-A war nndcrtaken by one of the atalca 
eonnceted hj a peraonal nnion doca not inTolre the other 
atate. Where, however, the common mler ia not aub jeet 
to eonstitational limitationa, or czerdaea a predominatinU 
inflnenee in the government in the country not engaged in 
the war, hia actiona are liable to be viewed with aoapicioB, 
and may be considered a jnstiilable caoae of war againat 
that country when similar action on the part of the nder 
of an ordinary neatral country wonld not be. The neu- 
trality of statca in a personal union haa generally been i^ 
spected, althoufl^ Napdeon seems to have violated it in hia 
conduct towarda Hanover, which'Waa then in peraonal m^ 
ion with Great Britain.** 

AlUas^— At the outbreak of war, an ally of the eneaiy 
may be ao dosdy associated with him that it will be Jarti* 
fiable to treat them as one. Usually, however, the alUanee 
ia more or less rcfetricted, so that the ally most judge 
whether the ease in hand comca within the tcima of the 
treaty. In auch a case fidmess sa wcH aa poliqr would or- 
dinarily dictote that the ally ahould not be attacked beldn 
he haa had opportunity for decision. Thus, in the caae of 
pnrdy defensive alliancca the mere fact that one ef the 



t20 XmCT OHABAOTBt AM g l O P H Tf , 

beUigerenti k attaeked iint does not necenarOj indicate 
that the war on hk part k def euive^ for the oftensiTe op- 
eratiom maj have heen in reality merely the moat effieient 
meana of defense. The ally mmt judge for hinudf in each 
ease whether there k really a eatuM foedertM. It haa been 
■ometimea said that the party to an alliance k not bound 
thereby, if the war on whieh hk ally enters k not a just 
one; but modem opinion generally considers that third 
psrtiea are not in a position to judge of the juatiee of the 
wars of others, and the refusal to cany out the terma of 
an alliance on that account would be regarded aa a mere 
attempt to evade the obligationa of the treaty. In both 
personal unions and alliancca, then, the question of the 
enemy character of the state k one for the political au- 
thoritica and not for the courts. It k not for the latter 
to say that, by the mere fiMst of war, the aubjects of either 
have become enemica, or that their property k liable to eon- 
ikcation aa enemy property. 

Importanee of old Tpdi% mles lessened by modem oea- 
dlUons of transportation, bosiness and law«— These roles 
as to enemy character have not the importance th^ once 
had, aa conditions of transportation, of business and of law 
have vitally changed since the time when most of them 
were elaborated at the beginning of the last eentuxy. The 
steamship haa largely taken the place oi the sailing vessel, 
business k coming more and more into the hands of eor> 
porations, and, what k atill more important, enemy gooda 
in neutnd bottoma are no longer subject to confiscation. 
The tendency k to drive the commerce of bdligerenta into 
neutral ships and to drive the merchant marine of bd- 
ligerenta oft the sea entirely. Accordingly, there will be 
much less use for these roles in the future than there haa 
been in the past, even though i«ivate property at sea con- 
tinues to be subject to capture. 

BxemptUms fSrom right of capture en Ugh seaa^«43ertain 
restrictions with regard to the exercise of the right of cap- 
tore in naval war, were embodied in the following conven- 
tion at the Second Peace Conference. 

Becognising the necessity €i more effectively ensuring 
than hitherto the equitable api^cation of bw to the intoa^ 
national relations of maritime Powera in time of war; 

Qmsidering that, for thk purpose^ it k expedient, in 



xzmmoirt nmc cunuu. Jttl 



giYing up or, if naceiwy, in hamMiniring for tho 
interal oorUin oonfliotiiig pnotieot of long lUnding, to 
oommeneo oodiiying in* regnUtioni of gonoral application 
tho gnarantew dno to peaeofol eonunereo and lagitimato 
boainoBi, as well as the eondnet of hqotilitiea by lea; tbat 
it it expedient to lay down in written nmtoal engegementa 
the prineiplee wliich haTO hitherto remained in the nneer* 
tain domain of eontrorer^y, or haye been left to the dia- 
eretion of GoTemmento; 

That» from heneef orUi» a certain nnmber of ndee may 
be made^ without affecting the common law now in force 
with rei^rd to mattm which that law hat left nneettted; 
[the Plenipotentiarice of the Contracting Powen] hare 
agreed npon the following 

POeZAL 

An. L Tk$ paMi corr M feadwce ^ iMidnb or UUigm^ 
•flit, whaUver ii$ offieUl or pnvaU ckvaeUr wung h€, fiumi 
on tike high ten on hoard a nmOni or oasmf Mp u taeMcUc 
// iho Aip 4» deiainod, iho oorroipomimoo. « forwarded hp iko 
captor wM tte load pouMo ddap. 

Tho provioiono of iho procodmg paragraph do noi appip, ia 
eaoo of violaUam of hloekado, io eorroopoadoaeo dooimod for or 
procoediag from a hloekadod port 

An. IL Tho iavioldbaUp of pooUl eorroopoadonco dooo aof ' 
oxompi a noubral maU Aip from iho Imw aad eufiom* of amrv 
iifae wflr a» to nooMi wuixhatU ohipo ia goaoroL Tho Mp, 
howooor, map moi &• ooarehod oxcopi mhoa oihoohMlp noeoooairp, 
and Ihom oalp wUh aa mwch conddoraitkm and oxpoiUiom aa po^ 
•ibli; 

Maflbk— Thii waa the practice followed with regard to 
neatral mail during the CS^il War. It ii here extended 
to the correepondence of beOigerenli aa wdL 

Tsi xxxifpxiov iBox OAPTun or onxAiir ?B8iia. 

An. Ill F«tf02f vood oauiimoolp forfMag aUmg iho coad 
or omaU hoaU ompHopod in local Imdi aro oxompi from oaplmro. 
Of w«n Of ihoir appiiancoo, rigging, lacUt and cargo. 

Thop coaao io 5« oxomj^ aa doon aa ih^ Uiko anp pari «&•!• 
e90f m hoiliKiMC. 

Tho ConiraeUng Powora agroo noi to iako adoaniago of iho 

oMUiarg p wrpMoo whiio proooroit^ ihoir noacrfai 




An.iy. Vet$a$ charged wiih rdigumi, identifle ^ fkam- 
ikropie mtftbiu an liktwiu asampi from capUira. 

Voidt IB iba hafatt oC teingiBf in fMh fldt— It was 
•videnUy the intention to embodj in the convention the 
mle of law laid down in the eaaea of Tha Paqueia Habama 
and Tk§ LoUl^ The eriterion for the exemption there laid 
down that the Teeeels shoold be in the habit of bringing in 
freA fish ia doabUeas applieable here alao. Tka Lola had 
proceeded to Yneatan, fiahed there eight daya and atarted 
back with a eargo of abont 10,000 ponnda of live fUh, bnt 
waa hdd bgr the Supreme Court to come within the ex- 
emption.** The proTiaion with regard to email boats em- 
ployed in local trade ia new. The exemption apedfied in 
both theae artidca ia exemption from capture becanae of 
enemy character, and ia conditioned not only on abaten- 
tion fhmi hoatilitiea. but on ecmiplianee with each militarj 
a bloekadea, when the latter are applicable. 



BBODLAXIOHa BaOABDIKG THS CBZWa OV SNXICT mnWTHAWT 
aUlPB OAPTUBBD BT A BBLUOnSira* 

AicT. Wkm an enemfmerdkatUMpia captured hff a hd' 
ligerenlt, mtA 0/ ttt crew ae arenaiiimah of a naairai Stale are 
not wmde pfitomare of war. 

The muaa nde appliee in the ease of the captain and offieere 
Kkewiee naiianah of a neutral State, if ihep promiee formaUp 
in writing not to eerve on an enemp Mp whSe the war laete. 

An. VL The captain, offieore and memben of the crew, 
when naHonaHe of the enemp State, are not made prieoaere ef 
war, on eemdiHon thai ihep make a formed promiee in writing 
not to undertakes whUe hoetUiUee laei, anp eermee connected 
with the operaUane of ihe war. 

An. YIL The mamee of ihe pereona rettdning iheir Kberig 
under the comdUiane laid down in AfUde V, paragr^k ^ and 
in ArtiOe VI, are notified hp ihe IMgereni captor to ihe oiher 
hemgerenL The UMer ie fortiddon hnowinglp to empiop the 



Ajo. YUL The prooieioma of ihe ihree preeeUng Artidee 
do not applp to ehipe taking part in the hoeiUitiee. 
The mere iket <d taking aenrice on board an enemy ahip 

i»mD.8Len. 

M Bet alio W«t]a% n blnHdioMl Lmt, laa. 



ram Tmnva of tiu. . ftt 

afEsete the neutral to eome degree with the nationality of 
the ahip, and so in the past ha^ made him liaUe to eaptore 
along with the nationals of the enemj <m board, bat there 
has been eonsiderable eontrovengr in the past as to the 
rights of a belligerent over the erew of a merehantman, 
and this Convention pats an end to that eontroTerqr. 



of personal efTeets^— One ease of exemption 
of enemj property at sea not indnded in the conTentiont 
bat referred to by Westlake is that of the perwnal efEeets 
of the eaptain and erew of a eaptared TesBd, and possibly 
of the psssengers as wdL He says that the same* favor 
has also been extended to the small adventores whieh it 
has been enstomaiy to allow eaptains to make on their own 
aeeonnt.** Ship-wreeked veBsels are scwietimes eonsidered 
to be exempt from eaptore, bat the rale is cne of ehivalry 
or eoarteqr rather than of law. 

Old roles as to when the ttUe to oaptnred piup e ity was 
lost— It has always been a maeh-mooted ^estion ss to 
jnst what is neeessary to divest the title of the old owner 
of a eaptared vessel so effeetaally that on its reeaptara it 
does not retam to him, bat becomes the property of the 
recaptor. The old role here, as with territory, waa that 
firm possession was neeessary to give good title^ and the 
technical test of firm possession wss the bringing of the 
eaptared vessel within a place of safety, snch ss a port 
or the vicinity of a fleet, or possession for twenty-f oar hoars. 
The former rale was embodied in the ConmMo dd Mori 
and pravailed nntil in the seventeenth centary, the latter 
rale threatened to displaee it Both ara now praetieally 
obsolete, althoagh the rale of wim pn$riim is embodied 
in the Pknssisn Code.** 

The new role tmpMng the eondemnatfon of a pdie oonrt 
— ^The definite incorporation of a new doctrine into the 
English law dates from 1758, when Lord ICansfleld ess- 
bodied in a decision^ the principle that to perfect the tifle 
of the captor not only fiim possession is necessary, bat eon- 
denination hj a prise eoort This doctrine was approved 

tvn btnwtksd law, isa. ' 

uBiricr, Prindpcs dn Droit dm Omn^ n, tsa. 
UGOM ft sL V. Wilhflni» t Bvnov^ 088. 



2M MBEMY OaiBAOm AKD 

b/ Lord Btowdl,* and was ineovporated in Ameriean lef- 
klation and taken up 1^ the eonrta of tlie United Statea 
and b/ American writen until it has come to be imown 
as an Ameriean doetrine.*^ In the United Statea the rights 
of the old owners on reeaptnre are eat off hj eondemnation 
piroeeeiiingai 

These roles of domeslie prise law have some to have in- 
temalional signiflcaoee.— These cioestions as to when the 
title of the individual captor becomes rested, and as to 
when the title of the old owner is so cat off as not to i^ 
Tive on recaptore, are evidently qneations of domestic priae 
law, bat th^ have been bonnd np with the international 
^estion as to when a neatral g«ts good title to a priae 
aa against the original owner, and have been inflaential 
in establishing as law the proposition that the tiUe of 
the capturing nation itself la not complete until eondesa- 
nation hj a priae pourt Thia is not aa jet universally ao- 
cepted, but it appears to have the weight of authority. Ita 
influence ia apparent in the practice, which has sometimes 
been followed, of restoring vessels which, at the eondusioii 
of peace, have not yet been condemned. France followed 
thia practice with Austria, in 1859, and with Prussia, in 
187L Here, however, as in the case of territory, the rule 
of nil poMt&iii is applied, and if nothing ia said in the 
treaty of peace aa to the return of vessels, that £set in 
itself perfects the tiUe of the capturing belligerent 

Much of the confnaion upon the q[uestion aa to when the 
tiUe to the captured ship vests in the captor has srisen 
from the confusion of the doctrine of rteapiun with that 
of jM9<lf sitimtsi. At the time when the latter doctrine waa 
much more important than it ia today, and consequently 
the subject of fkr more study, the generally accepted do^ 
trine was that it did not apply to ships at all, that, while 
perfect title to territory could not be acquired during hoa- 
tilitiea, this waa not true of captured ships, but that until 
the bringing of the ship inim pramdia, or its possession 
for twenty-four hours or the eondemnation of a priae court, 
the right of the captor waa possessory merely, but that tt 
then became an absolute titie. If the ship were recaptured 
before that time, the titie wdid not reveH in the old 



»TlM JlMMflk ttid Mfim, 4 BobfaHOS ildmlnlly Sipoil% H. 
MBcfltor, U Droit IbUk. de VKmf^ 4801 



DnUUBlUTY OF A0JI7l»ClX»lir. JtM 

aa h would QBdMr the doetriiie of postlimiiiiinii» but H was 
hia beeanae it had never paaaed from hioL Beewt prao- 
tice haa tended to allow the old owner to reeover the ahip 
aa long aa it la reeoTered before the termination of hoatfli- 
tiea. If eoontriea following thia practice atill hold to the 
old role that title paaaea and only paaaea on the folfillment 
of one of the old conditiona, then we haTO an inatanee of 
poatllmininm, or rcTcated title, if the ahip ia recaptored 
after the folfillment of the conditional but before the end * 
of the war. In caaea of recaptore the rule of redprocitj 
ia generallj applied to alliea and neatra]a» nnleaa their 
practice ia Icaa liberaL 

Wtaal la neoeaaaiy to oonitttote eaptare.— Captore takea 
effect on a rcaael'b lowering her eolora, or on b^g broni^ 
within the effecttre control of the enemy without having 
done ao. The aending aboard of a priae crew ia not neo- 
eeaary at leaat in the United SUtea apd Great Britain. 
Evidence of intention to retain poaaowion, however, muat 
be given to prevent anbaeqnent captora firom regarding the 
priae aa abandoned; but auch evidoice may be afforded by 
the preaence of a nngle priae-maater who in no way eon- 
trola the navigation of the veaad, provided the eirenmataneea 
are auch aa to warrant the bdkt that the veaacl will be 
eondncted aaf dy to port 

Oaptured veaada dioold be broni^ la far adjudfaatJon 
if poaaOde^— Where drenmatancca permit, all nationa re- 
quire that veaaela ahould be brought into port for adjudi- 
cation. Thia ia eaaential to a proper control over naval 
f orcea, aa well aa to protect the interarta of neutrala and 
to aome degree thoae of the enemy. Where a captured vcbmI 
cannot be broui^t into a domeatie port or the port of an 
ally, three principal couraca are open to a captor (1), to 
take it into a neutral port (2), to bum or acnttle ft, and 
(8) to ranaom it 

Priaea In neutral porta^— The firat couiae ia proper ac- 
cording to Article XXI of the convention on the ri|^ta 
and dutiea of neutral powera in naval war in caae of un- 
aeaworthineaa, atreaa of weather, or want of ftid or pio- 
vincna, but the priae ''muat leave aa aoon aa tlM drsum- 
atancca which juatified ita entiy are at an end." Artick 
XXm of that convention a|co allowa priaea to enter neo- 
tral porta ''when they are brought there to be i 
15 



tt$ BNBICT CHABAOTEB AXO F BOF l Pf ^ 

pending the deeiiion of a Prise Court*' Tlus is "to pro- 
▼ent the dcstrnction of prises or render it less frequent"*' 
But it was criticised hj the Ameriesn Ddegation as the 
''revival oi an aneient abuse"** in sllowing the title to 
property captored in war to be perfeeted throagh the pro> 
teetion afforded hj nentrsl territory, and it was not ad- 
hered to by the United Stales. 

Destniotion eC eaptnred sh^p^— The seeond eoorse in- 
▼elves a terrible destmelion of valnable property and has 
been severely condemned, bat if'a belligerent can be ef- 
fectively stmck at throng his eommeree, as those who 
uphold the capture of private property at sea must eon- 
tend, it IS hsrd to ssy that he may not be struck at throu|^ 
the destruction of his ships as well as throu|^ their con- 
fiscation. It must always remain an extreme measure to 
be avoided where posnble, but under prceiing drcumstanees 
its legality is unquestionable. In such a case, neutral prop- 
erty on board the enenqr ship would appear to share the 
fate of the ship. Such waa the dedrion of a IVeneh ap- 
pdate tribunal in the esse of the Ludwig and Forwarft 
during the Franco-Oennan War. Whfle the Declaration 
of Paris does not sDow the confiscation of neutrsl goods 
in enemy ihips, it does not f ortiid the destruction of the 
vcsmI because of their presence. If this were the esse, 
enemy ihips could free themsdves altogether firom this right 
of the bdligerent 1^ cairying small amounts of neutral 



Soles of the InsUtnto of imenallond law^The de- 
struction of a ship is permissible under the model Begn- 
latiim for Maritime Prises of the Lmtttuto of International 
Law: 

''L When it is not possible to hold the ship to the fleet 
on account of its poor condition, there being a rou|^ sea; 

"2. When the ihip sails so poorfy that she is not aUo 
to follow the ship of war and would be recaptured 1^ the 
enoy; 

''8. When the approach of a superior enemy force mskes 
the recapture of the sh^ apprehended; 

''4. When the d4» of war is not sUo to place In the 

• itWflithte. n IMoMtkMl iMW, UL 



BAXBOll. ft7 

■hip aeiied a snfBdent crew wHhoat diminkhing that whieh 
h neeenary to iti own safety. 

'*5. When tha port where it will be poenble to eonduet 
the Tcnel is too far dirtant.*'** 

At the Seeond Peace Conference a propoaition abcohitdj. 
fdrbidding the destmction of neutral prizes was vigoronslj 
supported by Great Britain and the United SUtes bnt fdled 
of adoption. 

Ransom f The third eonrse open to the captor is to sell 
his interest in the prise to the original owner. This is 
done by mesns of a ransom bill, which serves as a free- 
condnet for the eaptored Tcssel to return to its own eoon- 
try, as long as it keeps within the eonrse marked ont by 
the bilL (hi the Continent snit can be bron^t on the bill 
directly hj the holder, eren thoni^ he be an alien enemy, 
and judging 1^ the opinion of American jurists a similar 
procedure would probably be followed in the United States, 
in spite of the Eni^ish practice of requiring the bill to be 
enforced hj means of a suit for his liberty by the hostage 
who was retained at the time of the capture. If the bill 
is captured before arrival at a place of saf e^, it is ren- 
dered invalid. The subsequent wrecking of a ransomed 
Tcssel does not invalidate the ransom bilL As ransoming 
is a less severe measure than confiscation, it has often been 
prohibited by governments except under grtre cireum- 
stances. The sum secured is liable to be small compared 
with tbe value of the ressel atfd the crew are not made 
prisoners of war. Bansoming has never been forbidden, 
however, Ij the United States. 

As prise law and the proceedings of prise courts ars 
mainly of mnnicqial or neutral eoncera, the attempt will 
not be made here to discuss them further. 

MS ABBMil%ttL 



2S8 THB QUAUnOATIONt OF BBLUOl 



CaBUkPTEB UL 

THB QUALOnOATIOXB OF BBLUOl 

The pretent and sobseqnent ehapten mre^ mminly, a eom- 
mentary on The Hagae and Goneva ConTontiona. 

H L TKE'laum, righU and duUei cf war a^y nol Ofily io 
armim, Jnd dUo io mUiHa and volunUar corp$ fmlfUKng ike 
following condUiono: 

1. To ho commanded 6y a penon rtopontMo' for hio Jiib- 

8. To havo a fixed disiineiivo onMom reeogwudbh at a tfit- 



8* To earrf armo oponlf; and 
! 4. 3*0 conduct ihoir operaUom in occordanco wUk iho lawo 

[ and cagtomo of war. 

I III coimMeg wheto militia or votunteor corpt conttiMo iko 

I ormff, or form part of it, ihoff are included undor (he denomi- 

t natkm "armp." 

f Whflio milttia aro oomldored part of tho annj.— Jnst 

I what tho force of this last paragraph is it k hard to saj. 

f It was introdneed hy Colonel Hammer, the Swia delegate, 

! at Brmaeb, for the reason that in Switaerland the militia 

forma a part of the regolar army, hnt it was not diseniaed 
and was apparently considered merely a q[aeBtion of nomen- 
datore. The whole article, however, ia open to the eon-- 
stnction that, if militia or rolnnteer corps constitate the 
army or form part of ft, they are entitled to the privilegea 
of eombatanta, irrespeetiFe of satisfying the fonr preceding 
requirements. It is hardly possible that any eoontiy wonld 
treat as an army an organisation that failed to meet any 
of %he fonr requirements, except the second, which exaeta 
a distinctire mark, fixed and recognisable at a distance. 
At Brussels, Colonel Staaf, the delegate of Sweden and 
Norway, said that the militia whl^ formed part of the 
army of the countries he represented, was without such a 
distinctire mark; and, in the war in South Africa the Boer 
forces were similaxly ntuated. Where men act in large, 
bodies, after the manner of armies, it would seem that ^ . 
lack oi a uniform, or of something approaching h, wovild 



lUaOUUkB WAIVAIiL SM 



not nibjeet fhem to penal nieanurc% and it did not do ao 
in South Atriea. "Wliere aaeh foieea aro detafled on de- 
tached aerviee, howerert all the zeaaona for aome fixed dgn 
to diatingoiah combatanta from noncombatanta come into 
plaj, and the fact that anch f oreea ate conaideTed part of 
the ''army*' would appear to be immatermL 

The BvH and the Xnapiralion of inregalar Ughtiiv*— One 
of the greateat evib in warfare haa beoi irregolar flirting. 
IndiTidaak, mored no doubt often by patriotic aentimentay 
haTc taken the fighting into thdr own handa, and the 
enemj, unable to diatinguiah between them and ibe wont 
breakera of the peace, haa been compeQed to reaort to meaa* 
urea of puniahment which have embittered the atrugi^e and 
aown the aeeda of national diatmat and hate. GoTemmenta 
haTc organized partiaan corpa to act on the flank and rear 
of aimiea, and, aa in our Civil War and the Frutco-Oerman ' 
War, theae have been auch a acourge to friend and foe alike 
that their organisation haa been regretted and even put an 
end to by thoae who were reaponaible for it Again, eon- 
flicta have erentually degenerated into gneriDa wuf are nnd 
extreme meaaurea, auch aa thoae. of reconcentration, have 
been the conaequence. The evila ud general inelfectiTenem 
of guerilla fighting are not likely to be exaggerated. On 
the other hand, many of the brii^itcat pagea in hiatoxy are 
accounta of the heroic atrugglea carried on by the buri^er 
and peaaant populationa of Holland and Switaerland, and 
the inddenta which we lore longeat to linger over in the 
birth of our own nation, are the impromptu fi|^ta auch aa 
thoae at Lexington and Concord, and the daring exploita 
and privationa of banda auch aa thoae of Marion and Sum- 
ter. And in ware ao recent aa thoae of Napoleon, the poail- 
ble effectirenem of auch flirting waa ahown by the part the 
Spaniah people played in driving him from the P^inaola. 

Dtviaion between the laige and amaU powen al Bnuada 
and The Hague«— Both of thcae thinga, the horrora of bs 
regular warfare and the inspiration of its heroic aacriflcea, 
were present in the minda of the ddegatea at Bruasels and 
at The Hague; but it waa the horrora that predominated 
in the minda of the ddegatea of the great militaiy poweis 
while it waa the memoiy of their chfldhood heroea that ^> 
pealed most strongly to the representativea of the othexa. 

The Original PMjeet al Arasseb UmHed tteae aiilllled to 



280 IHB QDAUnOATIOVt OF 

IIm rlflili of rafolar eombateiiti to a dUtadto 
originiil RaHian Projeet at Bnmels eontained an 
tive artide, oorresponding to thk article of The Hagae Ooii> 
Tention; but it was sapplemeiited, as we have ieen,^ hj a 
negatiTe elauae wbieh proposed to hand orer to militaiy 
justice an who should engage in hostilities without eomplj- 
ing with its tenns. The afBnnatiTe stipolation deprived no 
one pt combatant rii^ts, bat left the question of who k not 
^iijMi to soch rii^ts to the nnwritten law of nations. Tke 
ad3itfon of the negatiTc clause would haye' avoided resort 
to the iokwritten law^ and would haTC sobstitated eertaintj 
in this regard for uncertainty; but the repr e sentati v e s of 
the smaller powers felt that that would be the certamty of 
injustice, as was shown by their indignant protest that they 
could consent to no provision having ''a tendency either 
to weaken national defense .or to detach dtiaens from their 
duty towards their country.*'* 

The Busslan delegates considered thai fUs arUdo 
not restrlot rights of defense^ but would merely 
duly on governments to give some oggawiiaMoii to the do» 
fense ta times of peaee^— The Rumian delegates on the other 
hand urged that the articles of their project could have no 
such tendency, but that they would, on the eontraiy, 1^ 
making it the duty of governments to organise their de- 
fense, tend to strengthen, rather than weaken, the national 
defense. The argument was made in vain. 

Befnial of the smallsr powers to agree to the a^gaitlvo 
arUde of the original Projeek— There were two posnUe 
forms of warfare which the negative diuse condemned, but 
in the condemnation of which the ddegates of flie smaller 
powers absolutdy refused to concur. These were (1) the 
Jasee m smcw in occupied territory, and (2) individual adla 
of hostility in unoccupied territory, such as the blowing up 
of bridges in face of the invader by persons not satisfying 
the conditions of the affirmative stipulation.* .The second 
of these is not likdy to be of much importance, but the Urst 
is, and it gave rise to a bitter debate which will be con- 
sidered under the next artide. The firm attitude of the 
ddegates of the smaller powers rendered the adoption of 

tPratoeoll «f Um 
■ Pntoeol IS flf Um 



m 

the negatiTe danw impooiUe and it mm dropped euly in. 
tlie Conference and was not again taken np. The artiele 
as finally adopted at Bmasels therefore, had no negative 
supplement, and in this form mm indoded in The Hague 
Begolations as Article L 

The artiele flnallj adopted, wUeh is embodied In The 
Bsgne Oomrentioo, is not restrlstive.— The fact that this 
artide, the negative sopplement having been dropped, can 
convey no negative implication, can not be too clearly 
bnmi^t oat. It was repeatedly emphasised at Bmssels and 
at The Hagne^^ and was the only basis on which agreement 
was posnble. When reading tUs artide^ therefore, we are 
constantly to bear the fact in mind, that, while it assores 
recognition as soldiers to those who satii^ its conditions, 
it neither by aseertion nor by implication denies such recog- 
nition to anyone. If anyone engaging in hostilities is denkd 
sodi recognition, it must be becanse he has acted contrary 
to the unwritten law of nations. Jost what acts are so pro> 
scribed is more or less uncertain, but it is probable that 
none but those brought out by the delegates of the smaller 
powers at Bmasels will cause much difficulty. Others may 
possibly arise, however, and it is well they were not pre- 
judged by the adoption of a hard and iMt rule. 

Orders flram headqinarters nol neoenary to give a vohm- 
tear oorps the diaraeter of regular combatants,— The orig^ 
inal dnit of this artide, at Brussels, required that militia 
and voluhteer corps should be subject to orders from head- 
quarters, but the Austrian ddegate pointed out the difli* 
cnlty a detached corps often would encounter in communi- 
cating with the commander-in-chief^ and the clause was 
. dropped. It would almost wholly have prevented the or- 
^^anisation of such corps in occupied territory. Any person 
commanding the respect of his community throui^ his per- 
sonality, his property or his offidal position, and conversant 
with the laws of war, is a responsible perwn in the sense of 
Clause L* 

Neoesiltj of a fixed emUenLr— A fixed distinctive emblem 
is necessary in order to draw a sharp line between com- 
batants and noncombatants. Without such an emblem, it 

* OonfcfCBoe lalcrBfttioiiaU dc la Bdz, p, 0O| ■•• dee 
OoBToitkin dnwa up at Mcood OoafcrcBei^ 99fm^ p. ISS. 

• Pioteeol IS flf tbt ~ 



fM TUB QUAUflOATIOH • OF 

is imponible to distiiigiiisb oombatante from noneombataiiti 
when the fonner are acting in detaehed bodieay and flie 
whole population is apt to be drawn into flie stmg^e. 
The emblem need not be a nnifonn, bat it moat be some- 
thing recognisable at a distance and which cannot be put 
on and off at pleasore. That combatants mnst carry anna 
openly and obsenre the laws and customs of wars might 
haye been taken for granted, bat it was thoufl^t best to 
give to these reqoirements the emphasis of express state- 



Bmpkymanl of savago troops.— Posnbly the foorth re- 
qairement was aimed at the employment of savage or semi- 
civilised troops. Ever since Lord Chatham ntterM hSs 
funons protest against the employment of Indians in the 
war with the colonies, it has been recognised as improper 
to employ troops whose accnatomed manner of warlkre 
gives evidence fliat they will not live np to the standards 
of etvOiaed life. 

H X applioalde In ooei^ied as wen as onoooivied terrttoKy. 
^Artide 1, which has jost been diseassed, onlike Article 
n, which will next be taken ap, applies to corps acting 
either in onoccapied territory, or in occupied territory, or 
in the territoiy of the enemy. 

H IL The tmhahiianU of a Uniiorf wkiek hag not hem oe- 
eajnedf, who, on ihe approach of the enemy, epoKkmeouelf take 
up arme io renst the iwoading troope wUhout having had Ume 
to organiae ihemeelvee in accordance wiih ArHiie 1,' duM he 
regaiML ae hMgerenU if iheg carry arme openlf and if ihep 
reneei Ike lame and caeUme of war. 

levees en masM in onoocapied territoiy.— This article 
was the resalt of a compromise. The delegates of the smal- 
ler powers wished a general recognition of hveee en smcw 
— spontaneoas risings of the population— in ocenpied and 
onoccapied territory alike, irrespective of any compliance 
with the conditions of Article L On the oflier hand, the 
Oerman delegate in particolar contended that leveee en 
sMCfi should be repaired to comply with the terms of Ar> 
tide I, no matter where they should take place. After an 
acrimonious debate, the q[uestion of rinngs in oceopied terw 
ritory was left to the unwritten law of nations; whfle it was 
decided that in unoccupied territory, if there has been no 



I eko Woillikib n McfBsliQail Lsw, SO. 



V 



f3S 

opportmiitj to ors^niie in eonf onnitj witli Article I» thote 
engaged in popular rieinge nay enjoy tlie piiWlegee of eonip 
batanti irrespeetiTe of their eomplianee witli reqoirementi 
1 and 2 of Artiele L The requirement of canying anna open- 
ly waa added at the Oonf erenee of 1907. 

Lereea en naMO In ooonpled tenltoiy oonq^lytiig utth the 
condlthma of Artkde I are enfelUed to r^gidar oombatant 
ilglila. — ^Beyond thia there ia mneh nneertunty. It aeema 
beyond ipieation, howoTer, that, where a population in oo> 
enpiod territory haa complied with the eonditiona of Ar- 
ticle I, it ia entitled to combatant privilegea. Ponbly the 
occnpant may be entitled, by yirtne of hii rig^te aa anch, 
to poniih individual membera of the population for joining 
the militaiy organiaationa of their eonntiy after the ooeo^ 
pation; but, once having joined, they are entitled to the 
privilegea of coinbatanta. Not only ate penal meaaorea 
againat them for what th^ hare done improper, but the 
commnnitiea from which they come cannot propeily be held 
coUectiTcly reeponaible tiierefor, aince the aet of joining 
the militaiy organizationa of their eonntiy, thoni^ it may 
be cbntraty to the orden of the militaiy occnpant, k not 
contrary to the law of nationa. Where penalties have been 
imposed on individoala in occupied territoiy for auch acta 
th^ have been much leas acrere than the penaltiea inflicted 
for popular npriainga. 

UnsueocssfDl uprisings In ooeivled tsRitoicy may e nt Ma 
the oomgSn to use r epre ssh re measnrea.— ^A aeeond point In 
relation to the action of populationa in ocoqiied territoiy 
also seems dear. Thia ia, that, where the population haa 
not been organized in accordance with Artide I, and the 
npriflSng ia not even temporarily successful, the occupant 
ia entitied to use severe repreasive measures. Not only do 
many of the privilegea of noncombatants eeaae from the 
wiping out of the distinction between combatants and non- 
combatanta, but in addition to thia it haa been customaiy 
for the belligerent to go fiurther and punish with severity 
the attempt made to overthrow hia au^rity. The poaition 
of the occupant in the occupied territoiy ia to a certain 
degree analogoua to that of a soveieign. Some authority 
ia necessaiy wherever highly eiviliaed life ia to exist and 
aa in the occupied territoiy the only territorial authority 
for the time being ia the occupant, he la entitled to punish 



234 THE QDAUnOATlOm OF 

all attempts made against bim there by aiqr other than the 
property qualified forces of the enemy. Attempts made to 
OTertom a sovereign ean alone be josUfied by sneeesi^ and 
ao it IS of attempts made against an oeenpant 

l^prisiQgs whldi ara ten^oniQy saooessfnl do not gifo 
ooeasion f er w p r e ssi v e measores^— If the soceess in dis^ao- 
ling the oeenpant's anthority is final, no ipiestion ean arise 
as to the punishment of the popolation which has psitiei- 
pated in the uprising. But the esse was suggested at Brus> 
selSy although not authoritatiTdy discussed, where tiie up- 
rising is temporarily successful, but the occupant ultinmtdy 
regains his authority. It was suggested that, as the test of 
oeenpation is the ability to suppress insurreiBtion, ibe £set 
of the uprisings being eren temporarily successfnl shows 
that the occupation was not effeetire, aud that the setf- 
atyled occupant, being such in name and not in fact, has 
no rii^t to resort to repressiTe measures available to a real 
oeenpanl This position would appear to be unanswerable, 
mud was not anthoritatiTely iiuestioned by aoy of the deie> 
g[atcs. Nice iiuestions are liable to arise as to just when 
an insurrection is temporarily successful, but, if the test of 
saccess is the eifectiTe displacement of the power of the 
belligerent for the time being, it would seem that there 
should be no greater difficulty about the application of this 
mle than of many others. 

Bin. The armed farem of ihe heOig^rmii parUm wu^ em- 
Btti iff coaitelsnif and lumambaiaHU. In ike mm ef mfime 
5f ike MMif, loik Jutm a righi io he treated m priaanen of 



This artide^ almost superfluous, it was deemed advisable 
to add in order to ensure to the noncombatant part of the 
amy equal treatment with the eombatanl' 



MMBSOan ef prlvaleerlnf ^-The Dedarathm of Pluis ef 
1866 contains the following provision: ''Privateering Is 
and remains abolished." Althou^ the United Sutes has 
never adhered to the Dedbration, Spain and Hezleo^ the 
notable of the other nonadhering powen^ took 

ISolttei 



ODITTEISION W XBBCHAimCBr. • €SS 

non of the Seeond Hmgae Conf erenee to do ao and it is 
probable that the above statement is the expreanon of aa 
hirtorie f^et PriTateering has stood for mnch that was 
patriotie and gallant^ but it has alao stood for all that was 
worst in visit and search and in the eaptnre of private 
property on the hi|^ seas, and if reyiTed, its former evils 
wonld hardly be tolerated now. 

Oonranion of merohantmen.— The Declaration of Paris 
haa been supplemented by the following eonrcntion drawn 
np at the late Peace Conference, but not signed or adhered 
to Iqr the United States becanse of its nonadherenee to the 
PHris Declaration. It is not likely, however, that may of 
the mica it lays down will be repudiated. 

Whereas, it ia deairable, in view of the incorporation in 
time of war of merchant ahipa in the figliting fleet, to de- 
fine the conditiona anbjeet to which this operation may be 
eftected; 

Whereaa, however, the Contracting Poweia have been 
nnable to eome to an agreement on the q[nestion whether 
the conversion of a merchant ship into a warship may taha 
place on the hi^ seas, it is understood that the q[uesdon of 
the place where such conversion is effected remains outside 
the acope of this Agreement and ia in no way effected by 
the following rules; 

[the Plenipotentiaries of the Contracting Powers] have 
agreed upon the following provisions: 

Asa, L A mercktmi Mp eoiiofrM into a wunkip eammd 
hoM ike righii tmd dmlu$ aecndng lo wuck vsnslf imlnt il it 
plsetd mndtr ike dired auikarUf, imm$iiaU ooalrol and r^ 
jjNmftUItiy of Iks Power wkeee fag ii fUee, 

Axx. IL MerAant Mpe eomveried inio warehipe mmel hear 
ike exiemer'wuarhe w&tdk XeHngmA ike warehipe of ikeir 

ABT.IIL Tlie commander muet he in ike eerviee of ike 8Me 
and dnip eomnUeeUmed hf ike eompeieni auikoritiee. JTttMuns 
mufl fignre on ike Kei i^ ike offieere of ike figkUnp jML 

An: lY. Tke crew mnel he eubjeet to mUiiarp diedpline. 

Abt. Y. Bverp merchani ekip converted into a warehip mad 
oftwrvs In fit OfMiuftont ike lawe and eaeUme ef war. 

Axx. YL A heOigereni who eonverie a mertAani Mp tnla^ 
a warehip mnai, ae eoon ae poeeShh, annennce aoA 
imikeKei^warMpe. 



SS6 THB QUAunoinovt of 

Jbi to the pUee of coiiTenioii, ''tlie Amuietak Delegation 
wkUng to obviate eontroTeniea in the fntnre inaiated that 
the tranaformatioa should take plaee either within the home 
port or territorial waten of the tranaforming oonntiy. 
Other delegationa inaiated that the tranaformation might 
take plaee not only within the home porta and territorial 
waten, but npon the high seaa. Am the diiferenee of opin- 
ion waa radical and irreeoneilabley it was agreed to eliminate 
the qamtion from the Convention.'** On general prineiples 
it ia hard to see why the eonveraion ehonld not take plaee 
on the hi|^ leaa aa well aa in territorial waten, nnlen it ia 
an attempt to evade treaty obligationa or general interna- 
tional obligationa aaeh aa thoae of nentnlity. 

Noneommiiaionod veneli may renst when attaeked, and 
may make good priae of the attacking veveL OtherwiM 
they have no combatant rii^ta. 

•Bipofft of JUnnieKa M^pOigp* |^ aa. 



TMUOvtm or wii. ' 287 



CHAPTRB IV. 
Fuaomns or wul 

B, IV. Pfi$on§r9 afwttranin^ pomer of ike hMtiU Oav^ 
§mm$nt, hui not of ike imdwiiudk or aurpg wko capture ikm^ 

Tkey miui he kymwuiji treeieL 

AU ikrir penonal belonging, except arwu, konee ani mS^ 
iaty papere, rtmaiii ikew pnperiip. 

Ptiioiiara ex% priiontn of ISbte cpposliif fptHKVBMoX uid 
not of Um iadMdittlt or eoipi whieh makt tho eaptart^— 
The principle underlying this artide maj wem to be mt 
most too obyions today for nttenmee, but it was mncb de- 
bated among the earlier writers on the law of nations. In 
the Middle Ages the feeling of the knii^ts waa strong that 
prisoners eaptored were thdr prisoners and that booty ea|^ 
tared was their booty, and the feeling waa not nnnatoral 
when the eaptnre of prisoners and booty waa so nmeh a 
matter of personal prowess. Bat the lessening of personal 
eontaet between combatants with the introdaetion of ilro- 
arma, and the change of warfare fxcm an aggregation of 
personal combats to a highly organised contest of armies, 
cansed the importance of the individnal to dedine, and 
with the growth of the powerful modem 'state the prin- 
ciple that prisoners and booty pertain to the goTemment 
and not to individnals came to have anq[aestioned anthority. 

Under no oixenmstanoes can prfBonoii bo pal to dssA 
oaoepl for crime or offenses against martial law«— The iines- 
tion was also long discossed whether in cases of extreme 
necessity it mi|^t not be permissible to pot prisoners to 
death, bat it ia hardly conceirable that cireamatanccs waiw 
ranting snch action conld arise today. 

Thaose of videnoo towards prlsonflii of war oi4y war- 
ranted in ^eoial oases*— It was provided in the origind 
draft of the Declaration of Brossds that prisoners dioald 
not be sab jected to any yidence. This provision, ttom the 
spirit of whidi there was no dissent, wonld hare made oot^ 
poral panidiment impossible^ bendes potting mider the bsn 
many of the gravest abases in the treatment of 



S88 RUOVBBS OF WAB. 

of war in the put; but it was shown that there were < 
where the nse of force is absolutely neeessary, as where a 
prisoner obstinately refoses to march; and it was there- 
fore decided only to require that prisoneis be "humanely 
tnated.**^ 

Ptifala prop er ty of prisoners.— The exclusion of arms, 
horses and milita[ry papen from the general exemption of 
the private property c< prisonen from conflscationy is in 
line with the tendency to regard property which st sea 
would be contraband of war as still subject to capture.* The 
exemption of the priTste proper^ of the prisoner from cap- 
turcy however, doee not prevent its sequestration during the 
period of captivity, especislly where, as in the esse of the 
retention of considerable sums of money, its retention by 
the prisoner would be Ukdj to enable hfan to escape. Am 
Professor Holland ssys: "It may be a question whether 
large sums of mon^y found upon prisoneri, .or in their bag- 
gage are in fact their private property."* The American 
Articles even went so far as to lay down that large sums 
found in the private luggage of prisoneis should not be 
treaty as private proper^ at aU/ 

H y. PHfosers €f war may he infemed m a fawn, fartrtm, 
eump or other plaee» and hotind noiio go hegond eefiim fSatei 
HmUe; ticl flbey cammoi he confined except st an tnHupemuMo 
stssfurs of eafeig and only whOe the drcumsUmeee wkiA neeee 
eiiaie ike meaeare eonUime Is eaieL 

Ho ignonriny attaehing to the ooodttion of a prisoner of 
war^— The terms of this article were chcsen with especial 
care, in order to negative any possible implication of ilp- 
nominy attaching to the condition of a prisoner of war. 
The humane treatment of prisonen of war during and sines 
the Franco^terman War is one of the most commendable 
thingi in modem military history. The last dsnse pro- 
viding that prisoneis shall be conilned "only while the 
circumstances which necessitate the measure continue to 
exist,'* was added in 1907. Those conilned in so-cslled 
concentration camps are deariy entitled to as libeial tiest- 
ment ss regular prisoners of war, but it would aeon with 



iPnioeol S off Iht < 

tBot n« l«^F% f^ SSIL 

•T. X. Honn4» The Lbwb sad Ciiito— off War «n Uad, pi 11. 

«Aitiflie7& 



BBOULATIOKt AB TO WOUL 239 

WeiUike that H III and V have no diieet bearing on eon- 
eentration.* 

H VL The Biaie maf niilize ik$ labor of jpnmiMn ^ war 
aeeorUng io ikebr tank amd aptitude, ojfieen exeepML Tka 
ioika AaU not he esxeeehe and ekaU hatm no coniudum wUk 
ike operaiiane of ike war, 

Prieonen map be autkoneed io work for ike fuhlie eervke, 
for private pereone, or on ikeir own aeeeunk 

Work done for ike State ie paid at ike ratee in force for 
work of a Jimthr laikd done bp eMiere of ike naOondl armp, 
or, if ikere are none in force, ai a rate aecordinp io ike woHf 



Wken ike work ie far oiker branckee of ike public eeroice or 
for private pereone, lA« condiiione are eeiHed in agreement wOk 

Tke wagee of ike prioonere ekcM go towarde improving ikdr 
poeiiion, and ike beianee ekaU be paid ikem on ikeir rdeaeOg 
after deducting tke coet of ikeir mmnieuance. 

Iha oondttUm of tlio prlsonor of war not tliat of davnj 
er penal Mrrttada*— Thk article strikingly demonstraftee 
how radically the condition of a prisoner of war diifen 
from ilaTciy and other f onus of involnntaiy servitnde, and 
eepeciallj from that of punishment for erime. The prisoner 
of war is sab jeet to sach restraints as will prevent him from 
rejoining the forces of his conntry, bat he is not a eriminsl, 
nor is he the slaTo for the time being of the state whidi 
has captared him. Bat» as the belligerent is entitled to r»> 
qoisition the services of the inhabitants of the eoontiy 
through which his army panes so long as these servieea 
are not connected with military operations^ it is eminently 
ressonable that he should be entitled to claim the same serv* 
ices of prisoners of war for whose maintenanee he is pri> 
marily liable. It has been claimed that inhabitants whose 
services have been requisitioned have a right to be compen- 
sated for them, but, if they have not, tiiat is no reason wl^ 
prisoners should have no such right* as the services of the 
inhabitants are occasional, while those of prisoners are apt 
to extend over a considerable period, so that» if they should 
be uncompensated, their condition would tndy bear a close 
resemblance to penal servitude if not slavery ttsdl 

Demoenu^ the rule in the mflitaiy servlot*— In the orig^ 

• n IirtflnMtianl Lbw, ISBL 



S40 piiaovns of wab. 

ioAl draft of the Broneb DeeUntkm. the lint pangrapK 
of thk article reads that certam labour might be required 
of priaoneiB of war, ''provided laeh employment be. not 
excesaiye or hiimiliating to the rank and loeial position 
which th^ oeenpy in their own eonntry.*' At the anggea- 
tion of General Voigta-Bhets, the Oerman delegate, the ref- 
erence to social position was sappressed. Bk words are 
memorable: 

''The man of themost noble birth and the peasant of the 
lowest dass, the scholar and the artisan, the rich and the 
poor, are equals in the military sendee; they ahonld .equally 
remain so if taken prisonen; they should work on the same 
footing.*** 

Labor of prisonen not to iBVid?e partlol^alion in mflitaqr 
operations against thdr oountiy^-The provision that the 
labor'required of prisonen of war ahall have nothing to do 
with the operations of war is liable to be fruitful of intei^ 
pretationa. It unquestionably f orbida forced participation 
in military operations having an immediaie connection with 
the war, but whether it goea further than this and forbids 
work on fortifications not in the theatre of war, seems to be 
an open question. The better opinion would appear to be 
that it does not forbid the requirement of such work,^ For 
further treatment of thia subject, see Articles XXm and 

xuy. 

That the terms of agreement for working should be seU 
tied with the military authorities seems unavoidable. 
Prisonen would be in no position to enforce their daims, 
and constant bickering between the prisonen and the in- 
habitanta would be inevitable. Besides, prisonen mi^t be. 
enabled to escape through the hdp of secret sympathisers, 
or by the use of money if it wen paid directly to theoL ' 

British and ftoneh praetioe not to dednet eost of maimo- 
nanoe from earnings^— ^In neither the British nor the Fren^ 
army, is it the practice to deduct the cost of their mainto* 
nance from the earnings of prisonen of war, but Professor 
Holland says that the British government expects reciproel- 
ty of treatment from the other belligerent* 



• Protocol S off ibo 
V Hollftiid, Tho Lows sad GutoBis off Wor OB Load, pi 11. 

Wootloko, n IntofiuitioMl Imw, SA. 

• IhU^ p. It; GacHo^ PiSeb doo Loio do fa Cknii% I, SOt. 



The phnae ''olBeen ezeepted" in the ftnA pftrftgraph it 
new M k alio the provition in the third iwngraph that "if 
there are none in foree» at a rate aeeording to the work 
ezeeated." The latter change waa made npon the reiMr»- 
aentation of aeveral delegatea that the lawa and regolationi 
of the atatea which they repreaented made no proviaion for 
the eompenaation of priaoneis of war for aerviee rendered 
to the captor atate, or to individnab or corporationa with 
the conaent of that government* 

H VIL Tk$ OovemmeiU mio wko§e kandt frUonen of war 

In ik§ abune§ €f a speeiai agreewumi MvdM ih$ hettigeremU, 
primmen of war shaU ho irotiod a$ rogardo hoard, lodgmg amd 
tioikmg en iko aamo footing a$ iho iroopo of iko Oovommoni 
who caphtrod ikooi, 

Dvtj to care for priaoneia eipeoiallj in reaovtinf to loeh 

article ia eapeciaUy important where extreme meaaorea woA 
aa reeoncentration campa, are reaorted to. No goTemmenI 
ia jnatilled in enforcing each meaanrea which ia nnwiUini^ 
or nnprepared to take proper care of ita priaonera. 

H ynL PrUonoro of war ohatt ta oubjecl to iko lawo, rogm- 
laiUmo and ordoro in foreo m ike armg of iko BiaU in wftoia 
power ikog are. Ang act of ineuhordination jueHfiee ike adop^ 
Hon towarde Ikem of euek w^eotaree of eeoeriig ae aiajr ta ( 



Seeaped prieonere who ore reUken h^ore hoing ebU io f«- 
pnn ikew own armg or hefore leaving ike ierriiarg oeempied |f 
ike armg wkiA captured ikoa^ are HMo to diodpllUiarg j 



Prieonere wko, after eucoeeding in eeeaping, are again taken 
prieonere, are not Ijoftb to ang pamekwtent on aceoani of Oair 
proowna pMgnem 

One of the few Inatanoea of the aanotliniring of penal power 
in tfaia OonTontion.— Thia ia one of the few artidea aane- 
tioning the exe r eia e of penal power by a belligerent 

Bimiiiioiis iiaoenaiy before ahootiiv at eaoiVNr pi^MB^ 
— ^The Bmaacla Declaration proTided that ''arma may be 
naed, after anmmoning, againat a peiaon attempting to 
eacape;'* and thia la aabatantially indnded in the 
paragraph of the preaent artide, allowing each 

• GcMiml DeyH, H AMrfett Jbanal off latenwtioDU law, Ca. 
16 



tit PUBOvna OF wal 

of Mveritj •■ are neeesMiy in eases of insaberdinatioiL 
A mere attempt to eaeape k not an set of insabordination, 
until the prisoner baa been anmmoned to stop; so tbat tbe 
old provision is elearly included in the new. It may weQ 
be wiahed, however, that the express requirement of a sum- 
mons before firing had been retained. 

Frisoner who has sooeeedad in eseaping not UaUa to sub- 
seqnent punishment— The eseape of a prisoner is not an 
offense against the laws of war; consequently, if, after mak- 
ing his eseape, he is recaptured, he is not liable to punish- 
ment, althoui^ he may be placed under stricter snrreil- 
lanee. But, if there were no liability to punishment for 
attempting to escape, such attempts would be unceasing, 
while the belligerenl^ except by keeping a dose guard, 
would have to look on with hands folded. A distinction is 
therefore made between successfol and unsuccemfol at- 
tempts, the latter being subject to disciplinary punishment 
such as confinement, while the former are not The pris- 
oner, however, is not justified in using violence in attempt- 
ing to escape; and, if he resorts to such methods, may be 
punished under the first paragraph of this article, accord- 
ing to the laws, regulations and orders in force in the 
army of the State into whose hands he has fdlen. 

Oen^iraej and revolts— Conspiracy and revolt are also 
punishable under the first paragraph. Conspira^ to escape 
is a less serious offense than revolt^ 

H IX. Bverf primmer of war U hound io give, ifkeio fum^ 
turned om ike ovijeei, \iM true name and rank, tmd if ke ith' 
fringee ikie rule, ke ie liable io kave ike advmUaget given io 
prieonere of kie thee eariaiML 

U tfa i m ess of misrepresentation of rank in ease of es- 
ehaiga^— The unfairness of a prisoner's misrepresenting hk 
rank In a matter such as that of exchange Is evident 

H X. Prieonere of war mag he eei at Itbertg on parole if 
ike tawe of ftetr eowntrg oBow, and, in eadk eaeee, tkeg are 
hound, on ikeir pereonaH konour, eerupulouelg io ffdfl, toft 
tewarde fkmr own Oovemmient and tka Qooemment kg wkom 
ikeg were made prieonere, tka engagemente tkeg kave contracted. 

In eaek eaeee tkeir own Oovemmeni ie hound neitker io fs- 
pnre of nor accept from tkem ang eenrice ineompatibie witk ike 
pvaUghen. 

^%eiVba 



Mi 

Whm tbn% h nol nprtn tSkNnao% of ptnb hf flu 
prIsoiMr't fomnmail or irtMra it is foriiidd«iL— Two caiet 
aie likdy to arise not deslt with in this mrtide; the flist. 
where the law of the country of the prisoner is silent as to 
whether he may parole himsdf ; the second, where the law 
exprenlj forbids him to do so. In the lint ease, it would 
aeem that, if his fovemment sabseqnently disapproves his 
parole, it is boond to give him the opportonity to presenre 
his good faith by retoming to eaptivity. If the other bel- 
ligerent refnses to receiTO him, he is released from his 
parole. In the seoond ease, the prisoner's goTemment would 
not appear to be bound by the parole, even if it had not 
eommunieated to the other goyemment the law or order 
forbidding parole, since goTcniments are supposed to know 
each other's rules in such matters. The American Instmo- 
tions, howcTcr, indicate that it is the practice for beOigei^ 
ents to communicate to each other their regulations con- 
cerning paroles," and this is more in harmony with good 
faith. In either case, howerer, the parole is personal and 
subjects the person who has broken it to punishment 1^ 
the other inde on recapture. 

Whal the panda tndudes.— Artide 130 of the American 
Instructions statea the general law as to what is meant hj 
the 'usual pledge, given in the parole, not to serve against 
the paroling power or its allies during the existing war 
unless exchanged. ''This pledge," so reads the article, ''re* 
fexs only to the active service in the fidd, against the paioI> 
ing bdligNrent <nr his allies actively engaged in the same 
war. These esses of breaking the parole are patent acta, 
and can be visited with the punishment of death; but the 
pledge does not refer to internal service, such as recruiUng 
or drilling the troops, fortifying places not besieged, ^id- 
ling dvil commotions, fighting against belligerents uneon- 
ne^ed with the paroling bdligerents, or to dvil or diplo- 
matic acrvice for which the paroled officer may be em- 
ployed." 

Should the panb be confined to oiBoenk— It haa been 
customaiy in the American and in the British amy to 
allow paroles to be given only through an oflleer unless in 
cases of extreme harddiip. This role seems to have suiw 
vived the times when "the honor of a gentleman" was sup- 

tiCMcr Now lOQ, 



M4 FUBOvna of wab. 

poaed to be eonflned to a mneh smaDer elaaa than U k today, 
and no reason appears now to exist why soldiers other than 
officers should not be permitted freely to give their parole, 
at least when no officers are imprisoned with them. In 
France, no such distinction between the officers and the 
men seems to be made.** 

H XL it priMMr of war earn not he compelled to aeeepi kit 
Itberttf am parole; strntZorly ike koetOe Oovemmeni i$ not 
eblig^ Is accede- to ike re^ueti of ike priaaner^e io he eti ai 
liberif on parole. 

Parola not eompnlsoEy.— Parole is a contract entered into 
between the prisoper and the foyemment which has him 
in its power. Like other contracts, it is a Yolnntary agree- 
ment. Persons can not be compelled to agree to abstain 
from fighting for their country, nor can a belligerent be 
nnder any duty to ran the risk of sach a promise being 
broken. Article 128 of the American Listmctions declares 
the general law when it says: 

''No paroling on the battlefield, no paroling of entire 
bodies of troops after a battle, and no dismissal of large 
numbers of prisoners, with a general declaration that th«y 
are paroled, is permitted or <rf any Talue." 

H XIL Prisoners of war, Kheraied on parole and reeapimred 
hearing arms againsi ike Oovemmeni Is wkom ikeg kad pledged 
iktir konour, or against ike aUies of ikai Oovemmeni forfoU 
tkeir rigki io he ireaied as prisoners of war, and can he lirougki 
hefore ike Courts, 

DeslraUUty of a trial for an violations of the law of war. 
—Probably a negative can be implied so that a prisoner 
charged with breach of his parole cannot be punished with- 
out a trial by the military courts, a principle which, it may 
be hoped, will become universal in dealing with offenses 
against the laws of war. 

H XIIL Indmdwds wko feiOow an army witkoui dUrecUg 
helonging io ii, suck as newspaper correspondents and reporters, 
suHers and contractors, wko feM into ike enemjfs kands and 
wkom ike latter ikinks fU io detain^ ars enHtled to he ireaied 
as prisoners of war, provided ikeg are in possession of a etr- 
Hficate from ike mUitarg auikoriUee of ike armg wkick ikeg 
were aecompanging* 

Usual oonrse towards those who fdlow the any, but are 

PkSeb te Lois as Is ChMn^ I» pi laS. 



.J 



BI7IB4U ov awtauxum. t45 

BOl a put of It— As a general role It k not likely that 
■nch penons will be detained, mdeH, as in the ease of r»> 
porten, their eonduet has becoi saeh as to Ineor the indif> 
nation of the eaptoring belligerent. Military reasons may, 
howeTer, often render immediate release IneonTenient, or 
make their immediate retom to the eamp oiP the enenay 
nnwiae. The necessity of obtaining protection against the 
noxious eharacters who infest armies, and the possibility 
of combatants escaping in the goise of noncombatants, make 
the certificate of identification jMcessaiy. 

H XIY. iifi tn^titry office far primHun of war U uuiiUded 
am ik$ eommetieemmi of JkOikliiUo in oaek of ike helHgerotii 
SiaieOf and, whom neeoaar^s mi iMslfvI eounMeo wkiA hawo 
reetived hMigorenU m ikdr iorriior^. li ia iko fvmdbm of 
ifciff of^ io repHif io ott inqmriu aboid iko prioomoro. li r^ 
eehu from iko variouo iorvieeo eoneomoi fmB mformaiiam r^ 
opeeling iniommonU amd iranofortt nHoaooo om paroU, oxdu m goo, 
ooeapeo, admisoiono tnls hoipUalis doaiko, a» imS at oA«r «!• 
formation noeeaoary io enahU U Is mako oui and hoop up io 
date an indioidwd return for oaek prioonor of war. Tko offeo 
mtui gtaio in ihio rotum IJks rs^KsiSfilal nnnAor, namto and am^ 
name, age, piaee of origin, ratUe, unii, wounde, daU and plaeo 
of capture, internment, wounding and death, ae wett ae ang efc- 
eervaiione of a epedai Aaraeter. The individual rehtm ehatt 
he eeni to the Oovemutoni of ihe oiher heXUgereni after ihe oon^ 
dueion of peace. 

It ie Ukewiee the function of the in^uirg office io receive and 
coUed oU objede of pereonal uoe, vduMe Idiore, eic, found on 
ihe fidd of hatUe or left hg prieonere who have heen rdeaeed 
on parole, or exchanged, or who have eecaped, or died in hoo- 
pHtah or a mhuJUineee, and to forward them io thoee ooneemed. 

Artioles XZV JCX, the work of IL Xonibsff , not a part of 
the Broasels DedsraUon.— The adoption of Articles ZI7* 
XX wss largely dne to the unremitting efforts of M. Bom- 
berg, who, ss head of the Brossels committee for the esxe 
of prisoneis of war during the Franco-German War, had 
seen the need of stipulations of this kind. They were 
broa^t before the Brossels Conferenee, bat were there 
regarded as innovations and so beyond the scope of the 
Conference. The Conference, however, recommended them 
to the attention of the Tarioos goYcmments, and when they 
were presented by the Belgian delegate at The Hagne, fh^ 



Mf RUOVnS OF WAL 

wen adopted with eomparatiyely little diieiwioiL Tlie 
last two aentences of the first paragraph detafling the par- 
tieolan to he kept on each card and requiring the eard to 
he deliyered to the other helligerent at the end of the war 
are new. They emhody the practice followed hy the Jap- 
anese in their war with Baasia. The inclusion of "releases 
on parole, exchanges, escapes** in the information to he 
ohtained hy the hnrean and of prisonexs who have heen 
''released on parole, or exchanged, or who have escaped'* 
among those whose Tslnahles are to he received, collected 
and forwarded, is also the work of the Second Oonf erenoe. 

H XV. BiUef iOci$iie$ for priionen of war, whiek an prop" 
erif eongtUuiid in accordance wiih ike lawi of ikeir etnudry 
and mik ike object of eerving as ike ckannel for ckariiaible 
effort ekatt receive from ike heUigerenU, for ikemedvee and 
ttdr dulf accredited agenie every fadUig for ike effideni per^ 
formance of iknr kwnane task wiikin ^e hounde impoeed kp 
mUiittrp neceetiiiee and adminietraiive regvJaticne, Agenie of 
ikeee eodetiee map he admitted to ike pHacee of iniemmotd for 
ike purpoee of dietrifniiing relief, ae deo to ike kdlHng placee 
of repairiated prisoners, if fumMed wiik a personal permU by 
(ike mUitafy auikorities, and on giving an undertaking in wrii- 
tfi^ Is comply wiik oR meaawru of wrder and police wkiA ike 
hiier mag issae. 

H XVL Jngiitry offices enjoy ike privilege of free postage. 
Liters, money orders and valvahles, as weU as parcels ty poet, 
intended for prisoners of war, or dispaicked by ikem, tidl he 
exempt from aU postal duties in ike couniriee of origin and 
destination, as well as in ike countries tkey pass ikrougk. 

Presents and relief in kind for prisoners of war skaU he ad' 
milted free of aU import or oiker duties, as weU ae of paiymenie 
for carriage (y ike State railways. 

Xdazatlon of ehaxges on letten and parods sent to prls- 
OBsrs of war«— Daring the Franco-Ckrman War, many of 
the things sent to relicTe the condition of prisoners never 
reached them on account of the charges impesed. The rep- 
resentatiyes of the powers at The l^tgae felt that the re- 
laxation of these charges wonld he insignificant as com* 
pared with the general expenses of the war, and that the 
governments coold weD afford it in view of the great good 
likely to resoH. 

H XVIL Officers taken prieoners skdtt receive ike eame rate 



J 



omon's VAT. t47 

of pojf 08 ofieen of ewrreapondmg rank in ike country wkere 
IJk«y are detained, tke amount to he uitiwiateiy refunded hy IJketr 
own vovemmentm 

01lk)«ni to MMlvt pay in foiM in eaptor't oxmj^—The 
rale laid down in the old eonvention was that otteexa taken 
priaoneiB should be paid their fall salaries by the eaptor, 
but the eonsensns of opinion for some time has been in . 
fttvo r of t he mle laid down in this artiele. 

H XYIIL Prieonere of war akaU enjoy complete liberty in 
ike exerciee of ikeir rdigioUs indmding attendance at ike eorv^ 
ieee of wkateier Ckurek ikey mmy heiong to, on ike eoU eoiuK- 
Uon ikat ikey comply wiik ike meaeuree of order and poKee 
ieeued by ike suZtlory auikoriOea. 

H XIX. Tke wiOe of prieonere of war are received or drawn 
up in ike eame way ae for eoldion of fke saiional srsifL 

Tke eame rdee ekeU be obeerved reyarding deatk certificaiee 
ae wM ae for ike bunai of pr i eonere of war, due regard being 
paid to ikeir grade and rank. 

H XX. After ike eondueion of peace, ike repatriation of 
prieonere of war AeiQ be carried out ae pnckly ae poeeible. 

T6 ^nrbaX sstsnt pease is an amnestj.— Prismeri msj be 
detained after the eondnsion of peaee to serve ont imprisosh 
ment imposed for common law erimes and possibly even 
for disciplinary offenses imposed when the war is ''plunly 
nearing its end'' although the latter is donbtfiil,** and oi^ 
dinarily not likely to be praetioed. Offenses which may be 
properly said to arise out of the war are wiped out by the 
peace and especially offenses against the orden of the o»> 
cnpanty Imt not in themselTes violations of the laws of war. 
Bnt the faet that an offense has been committed with a 
patriotic motive does not neoessarily remove it from the 
category of common law erimes. 

Krohange*— The exchange of prisoneis of war is a sub- 
ject not deslt with in The Hague Regulations. Althoui^ 
not obligatoiy, it hss become a usage of modem wars. Car- 
tels, or agreements, are entered into for eanying it out» 
and eommisearies are permitted to reside in the respective 
countries to fitcilitate exchanges and to see that the terms 
of the cartels are observed. The gesperal mle is that of 
equality, ''rank for rank, wounded for wounded.'' Where 
it ii desirable to exchange prisoners of different rank, those 

itWMCklm, n Istantltae] Lbw» ST. 



148 PII80VBB8 OV WAB. 

V of mpcrior rank are exchanged for a greater nomber of 

inferior rank. As it ia claimed that exchanged prieonexs 
should not fi^t again dnring the same war unless it is 
expressly stipulated to the contrary, it is best to make oXp 
press stipulations in this regard in the carteL** 

MHSI]» iBtefMtiOMa LftW» ^ tfOl 



TBM mm» womnxiD im smpwuosia 84t 



CHAPTEB V. 

ac^ WOUHMD AlTD SHIPWBBO: 

H XXI. The MigaiUm of »6%«r»»(t vttt re^tifd to tt# 
mek and wamUM en gavmnei by ik$ Oanem CamvemUmL 

XHB BUJK AlTD WOUVIUDl 

O L Offieen, 9oldUn and oihar pananM offickMf aUackad 
io ormtet who art nek cr wounded AaU h$ rupided and carad 
for, wUKoui duiineUon of natUmdiiy, hy ike tolKgenni m 
wko§e power ikep are. 

However, a IMigereni, when eompdled io leoM kie womnded 
in ike kande of ike enemy, ekaU leave vttt ikem, oo far m 
mUUary eondiHone permii, a porOon of ike peraonnd and m^ 
Oriel of kie eaniiary eervtee io aeeiei in earing for fkooL. 

Tba Qoamwn Oonvaitioit— Paragraph 1 entttka to tha 
privilegea of this oonyentioh all the eomhataat and noneoiB- 
hatant memben of the military forces enumerated in H I» 
m, as well as all other membeM of the military foieea not 
ennmerated there, if such there be, who are entitled to the 
treatment of prieonera of war by the unwritten law,^ and aha 
those indiyidnala not dire ctly bdonging to the militaiy 
force mentioned in H XflT. 

"These danaes are Tery broadly stated, and are intended . 
to apply not only to the case where a snccessfdl beHigereDt 
oeenpies the battlefield, but also to a case in which both of 
the opposing armies occupy new positions at aome disteaea 
from the field in which the lossea were incnrred.'^ 

Unsnooessfol belHfersnl to leaTt maiarial baUad^— Ptaa* 
graph 2 is new and of yital importance. It would deaity 
be the height of injustice to require -the occupant of ^dia 
battlefield to strip itself in caring for the rick and wounded . 
of its adversary without the obligation on the part of the 



•It ii a Bfttler of ngnA tint boUm off ibe ptiMBMam off ibe 
lIiBBd de U CnUX'Ba^t, ly VkaddUe aad P6ttm, Peth, 1000, «i 
Ml TCMh tlM writer iB tint to Mke it avmnaUt far life ^ 

1 Bm mtgrm^ pu tSl. 
. tBipoft rf iha Ihitei Btotei DiVs"HQa, p. IC 



250 THE ttC^ WOUKDSD AHD SHIFWBIOXnL 

latter ''to make reaaonable proyisioii for the care and treat- 
ment of the woanded who are left behind''' 

n. Suhjtci io ih€ ear$ thai muBt he taken of ttam tmier 
fk€ preceding article, the eick and wounded of an armf who fall 
into ike power of the other heUigereni become prieonare of war, 
and the general rulee of international law in reaped to prieonera 
become applicaible io them. 

The belUgerente remain free, however, io enter inio euA 
mutual eiipulatione in regard io eick and wounded prieonere a$ 
theg mag deem appropriate. Theg ehaXl have epecial amihorUg 
ioagru: 

1. To muiuaUg reetore the eick and wounded lefi on iho - 
ftM of batUe after an engagemeni, 

8. To eend back to iheir own country the eick and wounded 
who have recovered, or who are in a condition io be tra ne poried, 
and whom iheg have no deeire io retain ae prieonera, 

8. To eend the eick and wounded of the enemg io a neuMl 
etate, with ite coneent and on condition thai theg AaU be m- 
temed untU the doee of hoatiHitiee. 

Skk and woanded f aUinff into the power of the enen^ 
are prieonen of war«— The old eonyention left to the nn- 
written law the statoa of the tick and woanded who fkll 
into the handa of the enemy. Thia waa ondeairaUei It 
left open to argument the contention that they were ''neu- 
tral," and thoa inspired hopes of release and of freedom 
from military sapervision onwarrantable in pnsoners of 
war and at the same time rendered it doobtfol whether or 
not as prisoners of war they were entitled to the privilegea 
of that class. Bat whereas the old conyention had left the 
question an open one. Article V of the Additional Artides 
of 1868 gave pbaitiye support to the view of the exceptional 
position of the sick and woanded by requiring the sending 
back of all soldiers, whether incurably wounded or not, with 
the exceptioi^ of officexs whose detention might be import 
ant to the ImXio of arms, on condition of their not again 
bearing arms during the continuance of the war. 

Spedal anthorily to enter into stipulatlonsr— Artide 71 
of the old conyention had proyided that commanders-in- 
chief should haye the power to deliyer immediately, to the 
outposts of the enemy, soldiers who had been woanded in 
an engagement, when cireumstances permitted thia to be 

• IMiL 



THS ttCX AND WOUVDOk SU 

done, and with the eonaent of both parties that those who 
were reeognued after their wounda had healed, as ineapaUe 
of aerving, ahoold be aent baek to their own eonntiy, and 
that others might alao be aent baek, on condition of not 
again bearing arms dnring the eontinnanee of the war. 
danae 1 of paragraph 2 of the preaent article, it will be 
aeen, f oUowa doaely the first of the above proTiaiona, hot 
aaya nothing of agreeing in the eartda that the nek and 
woonded ahall be delivered ''immediatelj*' or ''to the out- 
posts of the enemy.*' The second of the above provirions 
of the old convention that those recogniable as incapable 
of serving ahall be aent back, was omitted, becanse <rf the 
difficoltj of determining whether a wonnded offioer or sol- 
dier is incapable of serving or not An officer incapable of 
active service may be of the greatest assistance in direction 
and advice. Accordingly danse 2 of the paragraph 2 of 
the present article was snbstitnted. As a belligerent will 
generally wish to send back those who can be of no use to 
its adversary, danse 2 will serve much the same end as the 
old provision without giving chance of recriminations when 
an officer no longer capable of active service is retained as 
a prisoner becanse of anperior ability along other linea. 
The third proviaion of the old convention that the aiek and 
wonnded in general may be aent bade on parole ia now 
covered for all priaoneis by H X and was omitted alto- 
gether. 

danse 8 of paragraph 2 supplements Artide XIV of the 
Convention respecting the Kghts and Duties of Neutral 
Powers and Persons in esse of Wsr on Land and like it is 
fiivorable to the dck and wounded in that it allows the 
neutral power to relieve ^ belligerent of his side and 
wonnded prisoners without being gnilty of unneutral eon- 
duet. 

It is to be noticed that in the present artide it is the 
"bdligerents'* to whom power is given to enter into these 
agreements while in Artide YI of the old convention it 
was the ''commander-in-chief" to whom it was entmsted. 
The diange must be taken to suggest that it may be dear- 
able that the power to enter into these cartels be not con- 
fined to commandera-in^chief. The United States Ddega- 
tion use tiie broader term "commanding generals."* 

•Bcpofft off United BMm IM^nliaB. f^ IT. 



S5i ZHl 8IG^ WOUKHBD AHD SHIPWBlOUn. 

IIL AfUr every efiffagemeni Ae hMigereiU who rematm 
in paeeeetian of ike fiM of baiUe akaU take meaeuree to eettrek 
for the wounded and to protect ike wounded and dead from 
epoiiaiUm and HI treaiMmL 

He wm eee thai a careful examination ie made of the iodiu 
of ike dead prior to ikeir inieirment or indnoraUon. 

Bolieiag of tht Add of bfttUA^Neither of the pioviaioiiB 
of this article ii to he f oond in the old eoliTention. Noth- 
ing ia nid there of policing the field of hattle or of taking 
measorea for the protection of the dead, and H waa feared 
at the late conference that the first paragraph might he 
interpreted as a guarantee against all nnlawfol acta on the 
field of hattle. It waa dearly, however, not the porpooe 
of this artide to make the occnpant an insorer against all 
crime on the hattlefidd, bmt merdj to indicate his dntj 
to take an steps in his power to minimise it as far as pos- 
sible. This is imposing no new duty, hot the stories fa- 
mfliar to all of the ghonk of battlefield diow how inado- 
qnate the pdicing of this kind has been in the past 

KTamtnation of the dead^-As to the examination of the 
dead it waa fdt by some that a doctor*a certificate of the 
fket of death as provided for in France shonld be required, 
but it waa fdt best to leave the details of the examination 
to each belligerent It was also nrged that the aoldiexs 
shonld be identified in some way as by a nnmber, button 
or medallion in accordance with actad practice in more 
armies than one, bnt thia was rejected.^ Its advantage as a 
meana of identifying the dead fa evident, bat to reqnire it 
by intemationd agreement woold be likdy to resolt prao- 
ticaOy in adding as a reqninte for belligerent character the 
veiy requirement which was so bitterly r^ected at Brus- 
sels and The Hague.* 

IV. its eoon ae poeeibh each hettigerent ehdtt forward to 
the auikoritiee of ikeir eountrg or army ike mSHtary iohene, or 
badgee of idenHficaiion, found upon the hodiee of <^ dead, Uh 
geiker wiik aliet of ike eick and wounded taken in charge kg 



BeUigereaia wHl keep eatk oiker mutueMg admeed of inUm^ 
menie and iranefere, iogefker wiXk admiuione to kooj^UdU and 

«l>ilp«h, iM Ooafmaet de BtrlilQa 4e U 

la B. a n L R, era. 

• 8te eofro^ pg, 10^ WL 



TBM noK AMP womnm. S5S 

dfoOt wkiA occur owiong ike cuk mud wmnded w ikdr kciub. 
Tkcf will cdUcet «B valuaiUc permmal hdamgimgi, leUcn, fk^ 
wkiA arc ftmni upcn ike field o/ hMU, or kaoe h^kmlefiVg 
ike wounded, or hjf ikoee wko have died ui eamUtrf fcrwiaJSmm 
or otker eelobliektnemie, for Uanemieiiam io inieriud pereone 
ikrougk ike uuikoriiiee of ikdr owm eoimlry. 

The p rovmioM of tUi artadav rapplaneiit H XIV mud 
H XVI* althoQi^ ihey go aomewhat fnrUier in ipeei^yiiif 
that the proper^ and infonnation ihaU be forwaided *'ai 
won as poMiUe.'* 

O y. MHiiary amikorUff auif make am appeal io ike diari' 
iahU Mcdl of ike inkabOauie io recdoe, and wader kie aapoT' 
vieiom, io care for ike dek and wounded of ike anaiee, hp pranU 
ing io pereone reeponding io euek oppeale epedal proteetion and 
ceHain tmatuftflMfc 

Appeal to the diartlgr of the tnhaWtanta\-Thia artida 
eorreaponda to Artide Y of the old eonyantion, and Addi- 
tional Artide IV. Artide V of the old eonvantion had pro- 
vided that any inhabitant who dionld have antertahied 
wounded troopa in hie honaa dioold be exempted frain the 
qoartering of troopa aa wall aa from part of the eontribii> 
tiona of war whidi mii^t be impoaed^ TUa granted mora 
than militaiy neeeaaitj would admit, and ao in Additional 
Artida IV of 1868 it waa provided that in the ^piartering 
of troopa and impoaition of eontribationa aeeonnt ahoold 
be taken of the nal of the inhabitanta in an eqnitable main 
neronlj. It will be notieed that the preaant artida ia mar^ 
ly an anthoritj to the eommander ta make appeala to the 
. inhabitanta by granting ''apedal proteetion and eertain im» 
mnnitiea" without apedfying what thoae immnnitifla are. 

The United Stotea Delegation in their report aay: ''It 

waa alao reeogniied that the methoda whieh now prerail 

in the treatment of the nek and woonded no longer pcvmit 

their iaolation in aeattered dwdlingi and otttbnildingi, 

whidi are diffienlt of aeeeaa and in whieh aanitaiy eondi* 

tiona eannot be eontrolled. For that reaaon the eolleelioB 

of patienta in tenta and anitable hoapital bnildingi under 

the moat advanced eonditiona in reapeet to aanitation and 

antiaeptie treatment waa atron^ favored by the eonteiv 
»»r 

• SttMv^pp.ao^tML 
tP. IT. 



254 THB 8ICS» WOUKDBD Am 1 

BAvrtAiT voBHATiom AND xniBunofoii. 

O YI« ^ Movable mnitarf farmaiian$ (i $., ikoH wkiek art 
MlendM to aecampanf armieg in ih§ field) and ^ faced eMIn 
UtkmenU helanging to ike eaniiarg eenriee Aatt te proUded 
and reepeeUd hn MUgerenie. 

CMvfl hofpttata.— By H LVP all property devoted to ehari- 
taUe purposes, even thoni^ belonging to the state is treated 
as private property. This made it mmeeessaiy to provide 
for sneh permanent hospitah as are intended for the needs 
of the eivil popolation and operate in.peaee as well as In 
war. The protection accorded them is even greater than 
that accorded to the fixed establishments belonging to the 
sanitary service for the latter remain subject to tiie laws 
of war, as modified by O XV, as public property devoted to 
military purposes while civil hospitals are subject only to 
the right of requisition to which all private proper^ is 
subject and which in their case should be made use of only 
under pressing necessity. 

Bespeot due to movable sanitaxy f ormattoub— This article 
settles the question so much debated at the Brussels Confer- 
ence ss to what are meant by movable sanitary fbnnatioiiB 
as contrasted with the fixed establishments which are still 
subject in large part to the unwritten laws of war. The 
old convention used the term "ambulance" and in Addi* 
tional Article m this term waa interpreted to mean ''field 
hospitals and other temporary establishments, which follow 
the troops on the field of battle to receive the sick and 
wounded." It was urged by the German delegate at Brus- 
sels that this enlarged the meaning of the term whereas it 
was desirable to restrict it or do away with the exenqytion of 
the material altogether. But he was apparently alone in 
his contention, and as will be seen by a comparison of the 
two articles the idea of Additional Article HI was em- 
bodied in the present article. 

Hoi estiUed to proteethm merefy ''so Img aa siok or 
wounded may be therein."— A significant change from Ar- 
ticle I of the old convention ia that the qualification that 
the sanitary formations will be protected and respected "so 
long as any sick or wounded may be therein" has been 
dropped. This made it possible to subject to capture am- 

•Sttii^cpu ssa. 



/' 



•AXITAIT VOBHATIOVS AXD UTABUSHlfSaiTa. 256 



bohuiMt wbieh had eraipleted their duty and were retam- 
inff to their annj merely beeanee they happened to have no 
aiek and wounded in them at the time. Praetiee, howeTer* 
aeeme to have been more liberal than the strict langoage 
of the eonvention required* and the present article was 
drafted in aeeordanoe with the praetioe. M. Hoynier is of 
the opinion that the praetiee of the Franeo-Oerman War 
went eren forther than this and exempted depots of sani* 
tary supplies. Accordingly in his Project of Bevision he 
proposed to assimilate depots of sanitary material to moT- 
able sanitary formations.^* Insofar as snch depots are moT* 
able sanitary formations following the army in its opersp 
tions in order to keep the ambnlanees and field hospitals 
properly supplied it would seem that hk suggestion is a 
valuable one,^^ but the Oeneva Conference did not follow 
him in assimilating depots of sanitary supplies as such to 
movable sanitary formations, so that it would appear that' 
when fixed they are subject to the laws of war, at any rate 
to the same extent as other fixed sanitary establishments. 
O VIL Ths protection du$ to oanUarff formaUono and «•- 
tablitkmento toouo if ikof^ are u$ed to commit act$ injunom Is 

Protsetion oondMoned on nonbdUgerent setion.— This sxw 
tide states more clearly than Artide I of the old convention 
that the protection of the convention ia conditioned on ab- 
stention from beUigerent action. If the sanitary formation 
is used to quarter troops, ss a stordiouse for military su]^ 
plies or employed as a base of operations or for any other 
military purpose, its privileged character ceases and if this 
is done treacherously it subjects the offenders to the mili- 
tary praal laws. 

O ym. A asatiary formation or eotahUAment ihM not U 
deprived of the protecHon accorded 5f articlo VI hf the fact 
ttsl: 

1. The perwonnd of s formation or eetabliekment ie armed 
and naee ite arme in eelf-4efen»e or in dafenee of ite'eiek and 



%. In ike eibeence of armed koepitai attendante, ike fi 

• UBfwkr, Ls OoBVCBtkNi do Qenkw Fendut U Gntm Tfemto ABo- 

puSS. 

MAitidt 17. Omok, ^ SSS. 
uQfflot, pu Srii Ddped^ U B. O. IX L P, YSi. 



aS6 * THX nCS, WOUKDED AXD 1 

Horn ii guafdid hjf an unui deladkmail or bf getMndM n§wr 

8. Affu or earlridge$, iakem from ike wounded and not foi 
immed over to the proper outkoriUee, are found in the former 

Saaitavy f onualiAii maj ba daf aided.— Thb artida k the 
neeenary eomplement of the preceding. Sanitary foim*- 
tiona mutt not be naed to eommit acta injnriona to the 
enemy, but it would be intolerable if the personnel of a 
formation ahonld be compelled to go unarmed or without 
the protection of a picket in order to be entitled to the pro- ' 
tection of the coivention. The nnaettled condition of.af* 
fkira following every battle makea it imperatiye that the 
personnel of sanitary formations should be so armed or 
guarded aa to ensure the safety of themsdyes and of thoae 
entrusted to their care. The last paragraph was added aa 
It result of the eiqperienee of the South African War.** 



O IX. The perwonnel egthmvdf charged wUh the rewumed, 
Uuneportation and treatmeni of ihe eiek and wounded, aa weU 
aa with the adminietraUon of eanitarg formaUone and eetahhth^ 
monte, and the chapHainB aUaiked to armue ehaU he reepeded 
and protected under att drcumetaneee. If iheg faU Mo ihe 
konib of the enemp thep ehaU not he regarded ae prteonera of 



Detail of persoond left to the Ooyemments.— It was 
thought best by some to be more specific in the enumeration 
of the sanitary personnd, but the varying organisation of 
the armiea of different countriea rendered thia undesirable 
so that the detafled application of this article must be 
worked out by the gOTcmments for themselTCS. It would 
seem that the domestics of the sanitary personnel diould 
receive the same treatment aa themsdyes, but this is sub- 
ject to some doubt.** In according the protection of this 
artide to the peisonnd of the guard of sanitary f ormationa, 
the Genera Conference made what would seem to be a veiy 
notable advance over the Brussds Conference. It would 

tBJhtptA. 13 B. O. IX I. F« lei 



25f 

■eeai the only adequate way of aaf egoaidiiig the liek and 
wounded in the tionbloiia timea of retreat and pnnoit** 

IMitinetion between aanttaiy penoond and Uioae ttaa. 
ponrilj. akUiif the alok and woonded^— The iMrovkkm that 
the aanitary penonnel proper ahall indiide only thoae who 
are ''exdnaively*' eha^sed with the eaie of tiie aiek and 
wounded waa added to ezefaide from the aanitary peraonnel 
the litter-bearera (drmcefdMrt), ete^ who are generally 
taken for the time being from the aetive militaiy aenrieeu 
When th^ form a diatinet and fixed branch of the aani- 
tary aenriee, aa in Switieriand and Anatria, they of eoorae 
meet the reqnirementa of the artide.** It ia to be obaerred, 
however, althoni^ theae temporary litter^bearoia do not 
f onn part of the aanitary peraonnel any moro than the goaid 
of aanitary f ormationB doea, that like the latter, they aro not 
to be r etain ed aa priaonera, bat aro to be aent back under 
OXIT^andZVIL 

O X. T%$ permmnel of vohmiur aid oocUlieg, duly recof* 
niui and aafkanMed 5y (kebr rupecHve ganemwUaU, who art 

feet to miliiarf laaw and rog u l aU o m o. 

BaekHaU Aatl mako known to iko oikor, oUkor tn Itaie of 
peaeo or aiihe oponmg, or during iko progrou of fc e rffl i ft aa 
«« any oomo, heforo aetwd omplopnewi-'-iho nameo of iko 
ooeMoo wkiek U kag aiUkoriood to rondor aooMameo, wndor tte 
rupontiMUf, in iko offieU oaniiarf oorvico of Uo anmSoo. 

▼ofainteflr aid aod ett ea,— Thia article ia a notable adTanee. 
over the old cimyention, which did not reeogniae Tohmteer 
aocietiea at alL The poaaible interference with military af» 
fkira which waa feared from the recognition of theae aode- 
tiea ia avoided by the proviaiona that they mnat be dnly an- 
thorind by their reapective goyemmenta and be aabjeet to 
military law and rogolationa, and by making the govem- 
menta anthorizing them reaponaible for thefe eondoet ill 
the aame way that it ia for ita offldal perMmneL 

Fnnotion in caae of floods lirai^ earthvoakei^ ete^~"Tlie 
detaila of organisation of theae aocietiea together witii the 
proparation of rogolationa goyeming their aetiyHj in tho 

MGfflai, pw aar. 

tBjMfmk, la B. a IX I. p^ eac 

17 



2SB TlIE BICX, WOUVOBD AKD i 

field and fixing their relatione with the sanitary department 
of the army, were wisely left to the dimnretion of the indi- 
▼idnal powers. It ia proper to obserrev howerer, that the 
fonushing of relief by saeh assoeiations to eonunnnitiea 
soffering in time of peaee from pestilenee or famine, or 
from the visitation of floods, fires or earthquakes, will al- 
ways eoDStitate a proper sabjeet for their humanitarian en^ 
deavor; and the use or display of the insignia of the eon- 
vention nppn sneh oceasions does not eome within t he pro* 
hibi toiy req uirements whieh are embodied in artides julwu 
and XXVin of .the new eonvention. 

field off aotivity genenkQy eonfined to seeond Una.— "It 
was the sense of tiie eommittee that the field of aetivity of 
these societies should be restricted to the seeond line of 
sanitary formations and to the fixed hospitals established 
at the bases of supply in whieh the sick and wounded are 
habitually collected for permanent treatment; but, as the 
con^ol and supervision of their philanthropic activity ia 
Tested by the terms of the conyention in the state which 
authorises them, it was not deemed best to insert such a 
stipulation in the text of an international agreement"** 

O XL A reeogniud BOcUif of a neuirtU MiaU eamnd hni 
ike jemeet of U$ mniituj pentmiui and fornuMona to o M- 
Kgereni oxeopl wUh iko prior eonsemi of Hi own gooommont 
and iko ouikoriijf of iuek hdUfforeni. Tko hoUigoroni wko ka$ 
aeeopUd mck a$ii$iane€ ii ro^pdrtd to noUfg iko onomp hoforo 
making ang n$e ikoroof. 

Henlnl soeiettes.— The remarks under Article X apply to 
this article also. It would seem beyond question that the 
belligerent state in authorising the neutral ambulance to 
come to its sssistance assumes responsibility for its conduct 
and that the neutral ambulance ia subject to its laws and 
regulations in the same way aa if it were organised by its 
own eitisena. 

OXn P€rwonBducrih€dinarUdoiIZ,Zandnwiaeon' 
Hnue in iko oxorcUo of tkmr fmndiong cfior ikog kaoo fdlon 
info iko power of tke enemg and mndor kio direeUon, 

Wken ikeir eooperaUon ia no longer indUpeneable ikeg vSJ 
be seal hack to ikeir armg or coantrg, wOkin radk psriod and 
hg iuek route aa mag aeeard wUk miKfary noeeeodg. 

\ ef the XhMdi Stotsi l>i1ia>ti«i, p. IC 



rfcif «JB canf wUh ihsm tmek ^feda, imainmmU, armt ttmd 

D11I7 cff penoond to ranalik— Pangimidi 1 of this artiek 
k in aceofd with AdditioiiAl Artide I in making H a poal- 
tire dntj on the part of the penonnd engaged in teoding 
the aiek and woonded to remain with them. Aztide m of 
the old eimTention waa merely pennimiYeu 

Pttaoanel to be aent bade when ao longer I 
— ^Fuagraph 2 tieala of one of the most delicate 
in the entixe eonvention. On the one hand the retiring bel- 
Ugerent ia apt to be tempted not to leave a portion of hia 
sanitary peiwnmd with the aiek and woonded if ho ia going 
to be deprived of their aervieea for a considerable time. On 
the other hand the belligerent into whoee hands the person- 
nel may fall ia apt to be under the temptation to retain H 
in order to avoid all danger of spying, and even in order to 
weaken his enemy by keeping from him his sanitary staff. 
The old convention provided that the staff mi|^ whhdmw 
and that they ahonld be delivered to the outposts of the 
enemy. This wss dearly incompatible with military ne cea 
sily and waa modified by Additional Artide L The present 
artide seems to present the wisest possible solution of the 
vexed question. In the first place it makes it an abodnte 
duty to send the staff back and allows their retention not 
during the entire period when they can be of service to 
their sick and wounded, but only so long aa their aervieea 
are indispensable, Thia will generally confine their lakns^ 
it would seem, to the first line of sanitary formations^ and 
enable them to be sent back as soon aa the emergenqr wo A 
following a battle is over.^* In the second place the com- 
mending geuerd *'is permitted to eyereise a reasonable 
discretion in respect to the time when and the method and 
route by whidi the restoration shall be accomplidied."^ 
This, no doubt, leavea a great responsibility in the hands of 
the commanding general It ia in his power to render thia 
meat important provision of the convention so much Uank 
paper on the plea of military necessity, but the hi|^ dmrae- 
ter of the modem military acrvice roidexs thia possibility 
litae to be feared. 

GZnL Fiile Ocy reaiam w iif jwmr. As eaesiy w^ ee- 

itQOlol, pi tSBL 

t^ltepwrt ef the JJaUad Stotm DJ^s«tl— , pw 14. 



260 THB UCK, WOUVDKD AKD SHIFWBIOKSDl 

eitfv to tiki fenoiifMl nunHamd im artiek IX ike mm§ pay amd 
tiXhwancei to which permmi ef ih§ mm$ grade in hie awm wnmif 
wre etUiiUd. 

To reo«l¥« pogr in ton% in oiqptor's amij.— Experience has 
proved tbat pay in the annj of the captor is a better cri- 
terion for the pay of the prisoner than the pigr to which he 
has been accustomed. Ilie conTcntions are now nniform 
on this point 

HAXIIUnU 

O XIV. Mobile eamiarf formatiane ihai have faOem iaio ihe 
power of ihe enesif ehaU retain thmr maiiriel and meane of 
iraneporiaUon of whatever hind, induding teame and ihe par* 
oonnid charged wiih ikmr managemenL 

Competent mQiiarg emihoritg, however, ehdXi haive ihe right 
to emphg ihem in caring for the dck and wounded.- The 
reetoraiion of the matiriel liuiU take ptaee in accordance wOh 
ihe conditume preecribed for the eanitarg penonnel, and, aa far 
aepoeeible, ai ihe eatna Hme. 

Oomposltlon off movaUe sanitary fonnation.— "To each 
of the moTable sanitary formations a sorgiesl and adminis* 
tratiTc perwnnel is attached; tents, bedding, ambolances 
and other means of transportation are provided, together 
with a sofficient equipment of sorgiesl instroments, and 
medical and hospital supplies. To the personnel and m*- 
terial eonstitating sach a movable sanitary formation the 
quality of inviolability is attached by the terms of the 
convention, and in the event of its falling into the hands of 
the enemy, the entire establishment, when its sick and 
wounded have been evacuated or transferred to fixed or 
bsse hospitab, is required to be returned to the lines of 
its own army with the least possible delay."** 

Just ss the perMund is under the direction of the enemy 
into whose power it falls, so the materiel is subject to com- 
petent military authority to employ it in the care of the 
sick and wounded as long as it is indispensable. 

O XV. BuOdiage and matMel pertaining to fixed MfoUUU 
mente ehaU remain eubject to ihe lawe of war, hui cannot be 
diverted from iheir nee eo long aa theg are neceeearp for ihe 
mek and woanded. Commandara of iroope engaged in operth 

ttRcpoit of IMM fliaici IM^rtka, pi 14. 



haa- 

:aBd I 
idng I 



MAxnuL td 

IJiMt, h^mmMTs flMf «M ikem, im cam of imporUmi wMmf 
mseeidijf, if, hefon nuik hmu A« tkk and waamdtd fmmi m 
Aam hiaa been pmmiaifan 

Wlui. lUMtohmwit^— That pablie fixed hoBpiUlt wai 
the materiml therein ehaU not be tarned £rhii their chan- 
taUe puxpoee eo long as they are neeeaaaiy for the nek 
womndedy ia an important modifleation of the long atandng 
role that they remain aabjeet to the lawa of war, that k, te 
the rii^t of the oeenpant to the enjoyment of the nantniei 
of the boildingi and to the eaptore of the materiaL It ii 
to be notieed that the first provision of this artide is nol 
eonfined, aa the second is, to the sick and woonded eon- 
tained in the hospital ttaell As long aa the boildingi or 
their material are neeessaiy for any sick and mmdnA 
they cannot be direrted from their porpose, exeept insoftf i 
aa this is modified by the second provision of the artick | 
The respect and protection guaranteed by the article^ doei 
not mean, of eonrse, that hospitah may not be the 



I 



of military operationa. If a hospital occapies a stratepe 
pointy consideration for its occupants may have to ^ve waj 
to mflitary necessity^ however mneh it is to be regretted. 

GXVL ThemaUriaofaidmHsUim^adfmUadioihalma' 
fiU of tkii eonvmiium im conformUg io ihe eondiUama hanim 
frttarihed, ia rBgarded aa priwda fropartp and, aa aaAs «JB k 
TtapaeUd undar off fAtcamakMeea, aava doi U ia aubjaei ia Ho 
right of requiaiiUm bf ftoli^orofiit im eoaformitg io ika Uwa ami 
maaaaa of wsr* 

MatMd of aid sooielks.^The material of aid soeietieB 
found in fixed hospitals^ like that belonging to the 8taft% 
it is to be presomed, cannot be diverted from its nse so long 
aa it ia neecsoaiy for the sick and woonded. Tlie only 
qaestion at the Conference seems to have been aa to wlistlMr 
it was entitled to better treatment than- simOar pnhlis 
property and the Conference resolved this donbt by aasisri* 
lating it to private proper^, which, at least on land, is not 
subject to capture, but menly to requisition. It wan do- 
sired to do away with the rii^t of requintion, or at least, 
to restrict its application, when taken hy the way of requi- 
sition, to the use of the sick and wounded; ''but there wen 
decided differences of view in tUs regard among the <<lido- 
gates, and the danse aa adopted represents a 



26$ THB ncm, wouvdkd axd 

of widely divergent opinions.''* It elcariy dionld not be 
reiioisitionedy howeyer, nnlen the neeeanty is pressing: 

comroTS of svacuatiov. 

O XYIL Oonvoffi of evacmtion MU he inaM «• stovaNt 
aaniiofy formalum$ wUh the foUawimg excepHdim: 

1. A hemgorent intercepting a eanvog mag, if required hg 
nnlitarg neceeeitg, vacate enek convag hg charging kimeetf wiih 
ike care of ike eiek and wounded wkom U coniaima. 

S. In ikie ea^ tke ohligaUon to reetore ike eamUarg poroom- 
nti. Of provided for in article XII, ekaU he extended to indude 
ike entire mUUmrg personnel empHoged, under proper auikorUg, 
in ike franeportaiion and protection of ike eonvog. 

Tke ebUgaOon to return ike eanitarg maUHd a$ provided 
for in artide XIY ekaM appig to raUwag imne and veeede in^ 
tended for inierior navigation wkick have heon eepeddUg equip' 
ped for evacuation purpoeee, togeiker wiik ike e^pmeni of 
euck vekidee, traine and veeeele wkick helong to ike eamtarg 



MiUtarg vekidee, witk ike^ teame, oiker Ikan ikoee helong* 
ing to tke eanitarg eervice, mag he captured* 

(HvUiane and meane of franeportaiion ohtained hg requitUion, 
indading raUwag nuiUrid and veeeele uiHited for convoge, are 
eubject to ike general rulee of intemaiional lam. 

OonTognk— The translation of the French "diepoeiiion^ in 
the first sentenee of this artiele into "exceptions" is nn- 
fortunate. If it had been translated to read: ''ConTi^ 
of eracoation shall be treated as movable sanitaiy f oim*- 
tions sabjeet to the following provisions," it woold seem 
that the sense of the original would have been more aecws 
atefy preserved as subparagraphs 1 and 2 amplify the first 
sentence rather than form exoeptions to it 

Subparagraph 1 oorresponds to the second provision of 
O XV. Not only may the course of the oonvoy be changed 
in order to retain the sick and wounded therein as prisonen 
of war or for some other reason, but the convoy may be 
broken up entirely in case of mflitary necessity, provided 
those contained therein are eared for. 

In subparagraph 2 the distinction between the militaiy 
peisonnel temporarily employed in aiding the rick and 

ttltepert cl the Ualtcd BUtm DJ^itlBB, pw ISw 



DimVGTITB Kimiillfi MZ 



woanded and tlie sanitaiy penonnd fMroper k more^carly 
bronglit out than in O XIV, or even than in paragraidi S 
of O EC, wbidi providea for the aending baek of the gnaid 
of aanitary formationa. Thia diatinetion k iwrtleolaily im- 
portant in connection with O XX, which eonflnea the wear- 
ing of the ann badge to the aanitaiy penonnel proper. 

lOlttaiy TeUdaa tanporaiaj naed for alok and wonnded. 
"-Fiuagraph 8 proridea that a different role ahall be applied 
to military vehielea temporarily naed for the aick and 
woanded from that applied by anbparagraph 2 to the mili> 
tary peraonnd temporarily employed in aiding them. Tlie 
peraonnd ia returned while the material k not. Thk k 
becaoae a proriaion f w the retom of anch material woold 
have been liable to grave abnae. It wonld have been too 
great a temptation to a retreating belligerent to aave ita 
tranaportation by naing it for the aick and wounded. 

maiuicTiva bmbuoii. 

OXVUL Inh»mag€io8wii§ethndik§hmtUiemgm4^A9 
r$d arou on a wkHU ground, farmed 5y ik$ reveretd of iko fo^ 
mrd eoUfOs tf eoMmed a$ iko omhlom omd dioHmeUoo oigm of 
iko oamtary oonneo of ar mioo. 

««Heraldk" atgn of the Red Oroaa In honor of Swtlnr. 
land^— The nae of the tern 'heraldic' in deacribing the bk- 
aignia of the oonyention excbidea the view that any re- 
ligiona aaaociation attadhea to the diatinctiye emblem of 
the convention'a philanthropic and hnmanitarinm aetirity. 
Turkey waa not repreaented in the conference, and it k 
worthy of note that the repreaentatirea of Japan, China, 
Peiaia and Siam exprened a wiUingneaa on the part of their 
GoYcmmenta to accept the Bed Croaa aa the olBcial inaignia 
of the convention. "" Perria, however, took a different atti- 
tnde at the eeeond Peace Ccmf erence." 

O XIX. Tkio omVUm appoaro on fago and hranardo oo woB 
OM upon eU maUria opporimmng to iko oanHarg oorvico, witk 
iko pormMon of comptUnt mUiiarg outkofiHg. 

dign. for meana off tranaportation^— It waa nrged by Od- 
onel MacPheraon, of the British delegation, that the meana of 
tranaportation intended exdnaively for aanitaiy aeijvioe 

tiBeport of tht UUtod 8Ut« Dd^fttioB, pi lai 
»8ni^rf«,pianL 



164 THB UCX, WOUVDKD Am 

■hould be painted white on eteh nde with a red enm as 
large as the dimensions of the vehiele wonld allowt in par- 
tial analoor te hospital ships, bnt it was felt best te leave 
q^iestions of detail to the respeetiye goyenunentSy and also 
diat sneh a regulation might interfere with military opersp 
tions by attracting the attention of the enemy." 

O XX. The permnna protected 5y ike prwririom cf pom- 
gnpk 1, arUde IX, and orHdet X and ZI wOl wear aHaeked 
io ike Irfi arm a red ereee on a white grounds wki€k witt he 
ieened and etamped hp eompeteni mQiiarp aufkoriip, and ae^ 
companied hp a ceriifieaie of idenHip tn the eaee of pereone aU 
tacked to ike eamtarp eenriee of armiee who do not have mOUarp 



1 entiUed to ann badges.— As already pointed ont 
the ann badges are for the sanitefy personnel proper, not 
for those temporarily in the service of the sick and wonnded, 
such ss the picketo guarding sanitary formations, litter^ 
bearers and the military personnel engaged generally in iba 
transportation of the sick and wounded, so that it is dear 
that the arm badge is not always a prerequisite to the pro- 
tection of the convention.** 

Oertiflcales of identtty^-The provision that those not in 
militaxy uniform shall be provided with a certiiiea to tl 
identity is an application of the general principle of H Xm 
that individuals accompanying an army, bnt not forming an 
integral part of.it, such ss war correspondents, sutlers and 
contractors, are entitled to be treated as prisoners of war 
on condition that they are provided with proper certiileales 
of authority. 

It k to be noticed that the arm badge k to be attached to^ 
not merely slipped over the left arm. It is essential that 
the character of medical personnel shall not be put on and 
off at pleasure. 

O XXL The dietmcHve fag of ike eonvention can onlp he 
diepHaped, wUk ike concent of ike mxUtarp aaXkorilMe, ooer 
eanitarp formoHone and eetahliekmente wktie protection ii e^ 
cvree. It ekaU he accompanied hg ike naftoiial fiag of ike M- 
Kgerent to wkoee eervice ike formation or eetahliAment ie aU 



Banitarg formoHone wkick have fatten into ike power of ike 
ttDdpMh, IS B. a IX L p, na. 

MG01ol,p tISL 



DUnKCTITS BXHJDI. t65 

MMif, k&wwer, shall fy no other /Ut§ iham ihoi of Iho Rod 
Crom 90 long a$ iheg conUmno im ttd oUmHon, 

bvorlaiiet cff aalioiiial flif for movaUU f onnaliODi^- 
Btmi if no natioDAl flag were reqniied over fixed eetobliA- 
mentSy there would generally be Utile diffienltj in deter- 
mining its nationality, but the eame thing eannot be aaid 
of moyable formationt. They are loeated near the erar 
▼aiying line between the two armiea, and it ia important 
to know whether their oeeapanta are enemiea to be eaptnred 
on the one hand, or on the other to be held reeponaible for 
aeta violatiye of the laws of war. 

Tbtmo in the power of the eneniy to l|y only the Bad 
Oron flig.— It would perhaps have been desirable in the 
interest ^ the eaptored ambolanee for it to have retained 
the doable flag after falling into the power of the enes^, 
as the anomaly of a hostile flag in eamp would ha^e been 
a eonstant reminder that its retention wss to be tempo- 
rary,** but the fact that it would ha^e been sueh an anomaly 
was fatal to it, and the rule that the Bed Cross flag shall 
be flown, ia in line with the general thought of the eonTen- 
tion that prisoneis who are siek and wounded are, nerei^ 
thclesi, prisoners, and that the ambulance inclu^Ung the 
peiaonnd is subject to the direction of the enemy wl^ In 
his power. 

GXXn. NouMloonHarfformoiiono, which, mmdorihoeom- 
dUiomi $ol forth la arUdo XI, havo boon amihoriMod io romior 
ihdr aorvieeo ohatt fif, with iho Hog of iho oowooMon, As 
noHonal flag of iko hdligtreni io whid^ (JUy are allsdUd. Tho 
proowono of iho second paragraph of iho preceding orUdo on 
appKcahlo io ihem, 

nagft for nautrsl f onnaUons.— Thb article doea not ex- 
pressly provide that the neutral sanitary formation shall 
not fly its own national flag, and from the fact that neutral 
hospital ships may, it may be contended that there ia noth- 
ing to prevent the neutral ssnitary formation from doing 
so s1m>. But in the esse of the neutral hospital ship there 
is express permission to fly its national flag; while in this 
article the intent seems to be that the use of the flag of 
the convention and of the belligerent to which the forma- 
tion ahaU be attached shall be exdnsiva. The anom^ of 

asDdpMk, IS B. o. IX I. F, na. 



S66 TAB 8ICS» WOUVOBD Am 

the flag of • neatnl power in an enemy eamp k not to be 
encooraged. 

O XXIIL 7ft« emhUm of UU red-eroa an a wkUe ground 
ami ik$ wards BSD CB088 or OBNBVA 0B088 eananlfU 
nged, wkHker in tima af peaea or war, to prated ar duignaia 
aaniiarg farmatians and esidbiiikmaniMs ik$ parwanml and moh 
*iirid praUeUd hg iha conaeniUm, 

IVmOATIOV AND BZBCDTIOV OF TBI OOHmmOV. 

G XXIY. The praamona af ika preaent eanaanUan ara 
chUgaiarf an ike eanliraeHng pawara anlg, in eaae af war hahifaan 
iwa ar mara af ikam. The mid pravitiana Aatt cm$a ia he 
abUgaiarg fram ike Hme wkan ana af ike tettigarani pawara 
AaO nai he aignatarg to Ike canoaniian, 

a XXV. Tke commandera^n^ief af ike hOUgarani armiea 
Aatt kaoe ia provide far ike daiaiU af exeeaUan af ike /ore- 
gaing ariide, aa weB aa far vnfanean eaaee, in aeeardanee wiik 
ike inatructiani of ikeir reapedive gavemmenias and aanfarm^ 
dblg ia ike ganaral prindpiea af ikia canvanUan. 

G XXVL Tke aignatarg gavemmenit akdtt taika ike neeeo' 
aarg atepa ta acquaint ikeir troape, and partieulaHg ike pro- 
ieeied pareannd, wiik ike praviaiana af ikia canaanUion and ta 
moftt ikem knawn ta ike peapU ai Urge. 

EWUHHUoir 07 1SI78E8 AHD nvnAoiuunL 

OXXyn. 7%««^fiatoff fo«0fvirikoMl0fiiblioa«lko«Uiioi 
now he adequate engage ta taike ar recommend ta ikdr legio' 
laturea auck meaaurea aa mag he neceaaarg ta praaant ika maa, 
hg private paraona or hg aadciiea oiker tkan ikoae upon wkick 
ikia convention confers ike rigkt ikareto, af ike eoMam or name 
af ike Bed Cross or Oenaoa Crass, partiadarig far eommsrcU 
purposes hg means af tra d e m ar k s . 

Tke prokihition of ike use af ike emhUm or noma aa sibova 

skatt hs enforced at and from iks tima sat hg saA hgistaUon 

and not later ikan ftva geara after ike canvantion goea inia 

' affect. Upon ike said going into effect, U skaU he mdawfut ta 

use a trada-mark or commardal Idhd oonirarg to auA prakthi' 



i aet prolecUaf tbe Red Oron«— Qy oeetion 4 of 
the Act ineorporating the Ameriean National Bed Cnaa, 



KAfll. WAI. 867 

88 Statatet at Large* GOO, it k provided among other thingi 
tbat it diall not be lawfial "for any penon or eorporatlcm, 
other than the Bed Croai of America, not now lawfuHj en- 
titled to nse the aign'of the bed Croes, hereafter to nae niA 
sign or any inaignia colored in imitation thereof for the 
porpoee of trade or aa an adyertieement to induce the nle 
of any article whatever*' nnder penally of not len tbaa 
$100 and not more than $500, or not more than a yearli 
imprisonment, or both, for each offense. Under this law the 
Commissioner of Patents has refbsed to reipster the Bed 
Cross asa trademark. 

G XXVIIL In ik$ ev0ni of ikmr wUKiarp petuti Isaw Msf 
tfiMj^'eRi, ike mgnaiory gav9rnim§ni$ dho engage to feOke, er 
to recomniend io iheir leguiaiurpe, ike neceeearg w^eaemee U 
repreee, in Ume ef war, indwidnai ode of pSOage and iU insf- 
mmd of (ke eiek and wounded of ike armiee, ae weli aa io pan^ 
iek, ae neurpaUana of mUiiarg ineignin, ike wrongful nee of ike 
flag and kraeeard of ike Bed Croee hg mUUarg penoae orprieaie 
individfude noi proieded hg ike preeeni coneenUon. 

Tkeg wiU commumeaie io eaek oiker tkrougk ike 8wiae Fed^ 
erdl ConneQ ike meaturee iaken wUk a view io enek repre^ri/oa, 
noi later ikon five geare from ike rali/kaiion of ike prnemi eon' 



VAfii. win. 

O K L MUiiarg koepUai Mpe, Oaf tt Io ««, Mpa 
eimeied or anigned kg Siaiee epeMlg and eeMg wOk a 
io omMng ike wounded, eidt and ekipwreeked, ike namee of 
wkiih kave been communieaied io ike heOigeretU Powere ai ike 
eomn^eneemeni or during ike course of koeiUiiiee, and in ang 
eaee before ikeg are emphged, ekatt he reepeded, and eannd 
he eapiured wkUe koeOiiiiee Isfi. 

Tkeee ekipe, wioreover, are noi on ike eame fooOng aa war^ 
Aipe ae regarde ikeir eiag in a nauird port 

lOlttaiy luMVital sh^ Oonmninieatlon off names ^The 
commnnication of the namea of hospital ships to the other 
beUigerent at the beginning of the war, or, if that is not 
possible, before the ship is placed in service, is esperiaHy 
desirable in order to prevent ships from claiming exemp- 
tion from capture, which may have been turned into hos^ritsl 
ships at the last moment only with a view to secure waA 
immunity. The namea of the hosintal slups msy also wdl 



968 THB 8ICI, WOUNDID AND SHIPWUOXm. 

be aent to neatral as well as to belliferent powen, in Yiew 
of the exemption aeeured to them by thk article from the 
ndea applicable to warshipa in neatral porta. 

N XL HaspUdl Mpi, e^pped wkoUff or in pari ai ik§ 
expente of pnvaU inHvidwdi or officiaUff reeoffntMod rduf ao- 
deUei, skaU he KkewtMB rupeeUd and exempt from capture, if 
ike helligereni power io whom ikep belong hoe given ihem an 
official eommietion and hae notified their namae io ike hoMo 
Power at the commencomeni of or during hoetUiiise, and in 
ang caee hrfore iheg are omploged. 

Theee Mpe mu$t he provided with a corHfieate from the comr 
peteni authoriiiee declaring ikai the veaeiu have heon under 
Ikeir control whUe fitting out and on final departure. 

Private hospital ah^v^The privilegea of thia article were 
extended to ahipa equipped by individnala aa well aa to 
thoae equipped by ofBcially recogniaed aocietiea, in order to 
encourage the placing of craft, such aa priTate yachta, in 
the medical aeiriee. 

N in. Hoepiial Mpa, equipped whoUg or in pad ai iha 
expenee of private individuaHe or officidUg recognieed eodeUee 
of neutral countriees ehaU he reepecied and exempt from cap- 
ture, on condition thai iheg are pHaced under the coniroi of one 
of ^e heUigerente, wiih ihe previoue coneeni of iheir own Oov^ 
emmeni and wiih the auiharieaiion of ihe Uiligerent himeelf, 
and ihat ihe latter hae notified iheir name to hie adverearg at 
ihe commencement of or during hoetiliiiee, and in ang caee, 
hefore iheg are empiaged. 

Neutral hoqittal diipt under the control of one of the 
beDigerenta.— O N m marka a distinct adTance oTcr Ar^ 
tide m of the Naval ConTcntion, drawn up at the first 
Peace Conference. That article made no provision for plac- 
ing the neutral hospital ship under the control of one of 
the belligerents^ and accordingly the use that would haTC 
been made of them was problematical, as their apparent in- 
dependence would, unavoidably, haTc giyen rise to much 
fHction, and they would constantly hsTc giTcn rise to sus- 
picions of unneutral service. 

OKIV. The Aipe mentioned in ArUdee I, II and lUehaa 
afford relief and aeeieiance io ihe wounded, eiek and ehipwrecked 
of ike hdligerente withomt diMneiUm of natianalitg. 

The Oovemmente undertaike not io uee theee Mpe for ang 
mttUarg I 



ITATIL WAI. 269 

Tku§ veuels mmi in no mt hamper iko mavHMni of ik§ 

Dnring and afUr an angagemmU ikag wOi ad ai Ukeir awn 
rUk and paHL 

The heUigtnnU AdU hav ika right io control and ooarA 
them; thog can rrfnao to hdp thom, ardor thorn off, OMko ihom 
take a certain eoaree, and put a Commieeioner on hoard; thog 
can even detain them, if important dreumetancee require it 

Am far OM poeaMo ihe hetUgerenU Aatt enter in iho hg of 
homM Aipe the ordere whiA ihog give ihom. 

Hofpittl lUpt labjMt to oonlrol aaalivoiis to that orcr 
movaUo weaSoixj UtaaoMaan^^Thme piovinoiit were not 
■0 neeenaiy in tiiis eonyention as in the old, beeanse of tho 
ehanfe in the preceding article placing nentral hoapital 
ships nnder the control of one of Uie beUigerents, bat ihaif 
are wise ss emphasising the oondnct the hospitsl ship k 
expected to f oUow, and in placing b^ond cavil the fact 
that while the hospitsl ships of the enemy are not sabjeet 
to captnre, nevertheless they are sabjeet to a oontiol analog- 
ous to that of ambulances and towntyn. 

Hot to be nsed for mJUtary porposes.— The provision tliat 
they shall not be osed for any military paipose k ezonpli- 
fled in the instraetions issued to the United States hospital 
ship Eelitf daring the Spanish-AmeEican War: "No gonSy | 
ammunition or articles contraband of war, except eoal or 
stores necenary for the movement of the vessel shall be 
placed on board nor shaU the vessel be used ss a transport ; 
for the carrying of dispstches, ofBcen or men not sick or ' 
disabled, other than those belonging to the medicsl depart- \ 
ment."^ As to arm s for maintaining or for defending the ' 
sick» see O N YIIL 

N V. MUHarg hoepiM ekipe ehaU U dietinguiehed hg 
heing painted white outMe wUh a horiaontaH hand of green 
about a metre and a hetf in hreadih. 

The Aipe mentioned in Artidee U and III AM be disUn^ 
gwAed bg being painted white onteide with a horiaontai band 
of red about a mdre and a hdf in hreedik. 

The boate of ihe Aipe sftooe sisiiitbfiad^ ae aUo emaU craft 
which mag U need for, hoepiiel work, ehdU be dietingmAed 
bg fimtlsr pstiiliiif . 

All hoepital Aipe Ada maike tkemeehee known hg koieting, 

MDftTlip iBtanaUoMl Uw, p. SH. 



B70 THB 8ICX, WOUinXID AMD 

wiik Ifctfjr naiianM flag, ik€ whiU flag wUk a red crom pwriiti 
5f ik§ OmeM Conveniian, and ftiriher, if (key Mamg to a 
neuifol BiaUs bg flging ai ih§ matHmagt ,ik0 national flag of 
ike belligerent under wkoee control tkeg are placed. 

Boepiidi ehipe whiek, in ike ierme of AHicU IV, are detained 
hg ike enemg, mtui katd down ike national flag of iko heiliger^ 
Ml to mkom tkeg heUong. 

Tke Mpe and hoate eibooe menUoned wkiA wiek to onemre 
Ig mgkt tke freedom from interference to wkiA ikeg are m* 
titled, muet, eubjeet to ike ateont of ike heUigeroni ikeg are 
aecompanging, take ike neceeearg meaewreo to render ikmr 
epedal painting euffideMg plam. 

■mUem.— That the neatral hospital ship diAll ilj the flag 
of the belligeient to which it is attached accords with the 
suggestion of Captain Mahan at the fiist Peace Conference. 
It is nnf ortonate that the second Conference did not go 
still farther and refose to sanction the nse of the national 
flag of the neatral hospital ship at eSL Its presence in a 
hostile fleet is too likely to engender hostile feeling towards 
the neatraL Perna reseired the right and this was recog> 
niied by the Conference to nse the Lion and Bed Son in- 
stead of and in place of the Bed Cross." 

ONVL Tke digtingwAing eigne referred to in ArOde V 
can onlg he need, mkeikor. in time of peace or war, for protect* 
ing or indicating ike ekipo ikerein mentioned, 

Ssdnslve nse.— This article is sapplemented by O N ZXI, 
providing that soitable* legislation' shall be enacted, or at 
least proposed, punishing the nnjustiflable nse of these 
marks. 

N yn. In ike caee of a figkt on hoard a wardUp, iko 
eick worde ekaU he reepeeted and epared ae far ae poeeShU. 

Tke eaid eick wards and the matiriel hdonging to ikom re* 
main ouhjeet to tke lawe of war; tkeg cannot, koweoer, he need 
for ang purpoee o^er ikon ikat for wkick ikeg were origtnaUg 
intended, oo longae ikeg are required for ike rids and wounded. 

Tke commander, koweoer, into wkoee power ikeg kave fallen 
mag applg tkem to otker purpoeee,if ike mtlitarg miuation re- 
fuiree it, after eedng ikai tke ride and wounded on hoard are 
properlg provided for. 

SUk wards^— The treatment of hospital ships is similar 
to that of moTable sanitaiy formations on land. The treat- 

wite StcoBd IrtwMitiflasl Ymm Oasluiin^ p. tlSL 



KATAL WAI. til 

or dek wards, tt wfll be Men. k tiiiiikr to tlitt of* 
ized MiiitAry fonnatioiMy this article being in the main a 
reprodnetion of O X7, the remarks on which artide apply 
totUsabo. 

V YIIL HoipUai Mpg amd tick warii of «Mwb ere «e 
lon§§r mHiUd io pnUdtiom if (keff are emfloysi fvr Of fmt^ 
pot$ €f vnpuimg OU eaesif. 

Tk$f9d^a$$iafofik§mM Mp9 and mA wariM Uim§ 
enaed fwr nunniaming ordmr and far defendmg ike mdt ami 
waamd$d, and ika presence af wireleee ieUgrapky appamtaa am 
heard, tenei a euffideni reaeam far wUhdrawing preieetiam. 

UUk and wofonded may be defended.— Thia article corres- 
ponds to O Vn and VIO. The presence of wirdess tdeg- 
raphy I4>paratas pereeim not objectionable, bnt it most not 
be employed for the porpoee of injuring the eneny. 

K DL BeOigerenU nutg appeal io ike ckariig eif ike eesi- 
flioaibfe ef nendnd marAaalL Mpe, yaekie, or (eelf Is Uka en 
heard and tend ike eiek and waundeiL 

Veseeb reeponding Io iku appeal, and a be e a wit wkiA hem 
of ikair ova accord reecued eiek, wounded or Aipmredsed mam, 
iJboO emjog epeaai proieeUom mud eeriaim mmaailifli. In me 
eaee cam ikeg he eaphtred for kaving ewik pereone an heard, M» 
apart from epeeial undertakinge ikai kave heen made ia ikea^ 
ikeg reamn lidbU ia eapiure for ang viehOane af neairaKtg 
ikew mag kaee commUiiL 

Appesl to oharfty of mendmnl ddps, ete^— 4 N IX eov- 
responds to O V. Special immnnity for violations of neo- 
trslity may be granted, bnt no gcnend immunity resdlta 
from the mere rescue of the sick, wounded or shipwredoed. * 
This srtide k supplemented by O N XIT. 

K X. Tke religume, oMdieal and koepUdl eiaf of eaf 
eapiared Mp ie invUlahle, and He membere eammoi he akaia 
prieonere of war. On leaving ike ekip ikeg idke awag wiXk ikem 
ike ebjeele and ewrgiad wulrvflieaif wkuk are ikrir own jwv 
va*e preperig* 

Tkie eiaf ekan eomOmue io dieAarge He dmUee wkHe meeea- 
earg, and eam afterwards leave, wkem ike Commamder4m^nkiief 

Tke hdKgerenie mast guarantee io ike eaid staff, wkem U 
kae fatten into ikeir kande, tke eame dHowanem and.pag wkidk 
are gieen ia ike etaff of corresponding rank «a ikeir owd mavg. 



S7S THs ttci, woomxiD Am aHiPwnoKm. 



not priMnwn cC war^— Thiy ground k eoTered 
for war on land by O IZ» XII and XIIL 

N XL SaOorg and mMUn am hoard, wkan mek or vomuh 
9d, a$ wM OM oihor penona oficiaUff aUaek$d io fluU or armim, 
whmUvar flMr ngtUmalU^s *hdn ha roapecUd amd Undad hg 

Compare with fhii» O L 

N Xn. Anff warMp haUmging to a hOHgenai maip do- 
mand Vud aUk^ wovndod or Mpwroeked aim on hoard mUUarf 
koipUdl Mpt, hoipiUd Aipo h^ong to roHef oocMoo or io jwv 
oaU indMdvaU, mordumi Mpo, ffaekU or hoaU, whaiooor Oi 
MitoaaKlf of iheoe veudo, Aoidd he handtd ovor. 

Bighl to daniand aide and woimded reaeoad Igr flMTdiaiil- 
fli«n«— The aitoation met by thia artiele waa not proTided 
for in the old eonvention. Captain Mahan had noticed thiaL 
In hia report he aaid; ''The omiarion waa one likdy to 
occur to an American old enough to remember the Teiy 
concrete and pertinent inatance of the Britiah yacht ^Door^ 
houn^ aaying the men of the Alabama, including her cap- 
tain, who were then hdd to be under the protection of the 
neutral flag."** Hia attention had been attracted to thia 
onpanon too late to effect the final reault, howerer, and thia 
waa poaaibly the cauae of the ultimate exduaion of Article 
X of the old Convention, now O N XV. O N XII, which 
covers much the aame ground aa the aecond of the artidea 
propoaed by Captain Mahan at the fiiat conference, waa 
propoaed by the Oerman delegation and aupported 1^ the 
reporter, H. Renault, who argued that in abaence of aa in- 
ternational convention, not only could a belligerent do all 
that m allowed by thia article, but that except for intei^ 
national convention, the neutral ahipa would be liable to 
confiscation on the ground of unneutral aervice. It ia to 
be noticed that the article doea not mention neutral war- 
aUpa. 

PoaMon taken at ftal by Brttidi QoverBmewlK— The Brit* 
idi Ck>Temment at ilrat refoaed to acquiesce in the pontion 
that the belligerent warship would have the right to demand 
the aurrender of the reacued on board a neutral merchant 
ahip, but later withdrew thia reservation. The poaition waa 
one aomewhat aimilar to that taken by the British Govern* 
ment in the Trent Affair, althoufl^ the caaea are dearly dia- 



VATIL WAS. 979 

trngniihable. as in tlie Utter ease, MaM>n and SUddl, thongli 
mflitary afenta alio, were in a aomewhat qnaai diplomatie 
poaition. That the original British poaition waa not eorreet 
k admitted by Weatlake* and f ew wiU diaagiee with hia. 
Hie analogy between the deek of a merchant ahip on tha 
hi|^ aeaa and the aoil of ita eoontry baa never been carried 
ao far aa to protect thoae in the militaiy aervice of an < 
from captore when on board anch a ahip. 

LiafaOi^ of nevtrd to eaptnro for raaono work ; 
dent of oon¥«ntion«— On the aeeond point the liability of 
the neotral to capture, except for international eonventioBv 
Weatlake diaagreea with' the poaition taken hj Benanlt 
He aaya: "lliere woold be no ground for presoming that 
he intended to reatore them to the military aervice of their 
own aide. If he had the correct intention to ace to their 
aafe internment, it is not dear what benefit the enemy would 
derive from internment being anbatitnted for capture* and 
there would be no room for anggeating thei eziatence of an 
improper arrangement between him and the eneny."* 
Such a preaumption would be a reaaonable one, but it ia 
doubtful whether a Court inclined to the condemnation of 
priaea would aanetion it The old atatementa of the liability 
of neutral ahipa to confiacation for carrying thoae in the 
enemy*a aervice are ao sweeping that it aeema likely that 
any but liberally inclined courta would place on the neutral 
a burden of overcoming the auapidon raiaed by the trana* 
portation of hoatfle troopa. 

O N XnL // Mick, wmmded or Aipwrecked permm» an 
iatm an hoard a nauirui wanikip, evarff paanbU 
mvsi be iakem thai Dkey da nai again Uika pari ta Ike 
Uoaa of fka war. 

Oan aoeb a demand be made of wand^paT— To Weatlake 
it apparendy aeema dear that no audi demand can be made 
ai neutral warahipa reacuinit the aick, wounded and ahip- 
wrecked, aa la allowed in the preceding artide of merdmnt 
diipa. The analogy in thia reapect between the dedc of the 
warship and the soil of its country seems to him completa. 
There is mudi to be said for thia. Wanhipa lying in teni- 
torial waters enjoy a very wide immunity from the conted 
of the territorial authoritiea, and notwithatanding the Cael 



»n Iirtmstiaod Uw, tiaL 
MIML 

18 



S74 THK 8ICK, WOUVDID AND SUPWBICKm 

that the aoTereignty of the territorial authorities k of a 
higher degree than the authority ezereised by the aoeeev- 
ful beUigerent over the ecene of the engagement on the 
hi|^ sees. Then, too, as has jnst been seen, it has been 
serionsly questioned whether there is any sndi ri|^ eren 
over neutral merchant ships. 

To be aTOided^-^That the neutral warship is not to be 
treated precisely as neutral soil, however, is erident Cram a 
comparison of this article with O N X7. That article reads 
that the rescued "must • • • be guarded by the neu- 
tral State so as to prevent them again taking part in the 
war." This article on the other hand merely provides that 
**every possible precaution must be tsken that they do not 
again take part in the operation of the war.*' The Wbas 
ence in phraseology may be due to the greater difficulty of 
guarding men on shipboard or to the possible ne c essity of 
landing the rescued in a belligerent port or of turning them 
over to a merchant ship, but it leavi« open to the unwritten 
law the possibility of the successfol belligerent demanding 
of the neutral warship those of the enemy whcmi it has 
rescued and has on board. -No greater precaution could be 
taken that they should not again take part in the operations 
of the war than by handing them over. Such a demand 
would be one to be avoided, as it would be likely to result 
in serioDS controversy, but as a matter of strict ri|^ it 
is a grave question whether it mifl^t not be made. This 
successfol bdligerent is entitied to reap the reward of hk 
victory, and to that end has very wide authority over the 
scene of the engagement, and there seems no dednve re^ 
son why, if it chooses torun the chance of the exercise of 
that authority by entering on the theatre of operations, it 
should not be just as liable to turn over those whom it 
hss prevented the victor cspturing as it would be to turn 
over a fugitive faom the pro^sess of the eouits in whose 
territoxyit wss lying. 

K XIV. Tke AipmneML, wounded or tUk 9f im§ of 1k§ 
hdligertnit who faU into ih$ power of ih§ other hdHgemd oro 
pritonere of wor. The captor mnri decide, according to eirw 
cmmatancee, whether to keep ftem, aend ihem to a port of hia 
own countrp, to a neutral port, or eren to an enemy port in 
ftsi Isfl caae, primmere thue repatriated cannot serve 



KATAL WAI. • t75 

Tht di^wrtolnd, do^ fUUng Into tbe powtr of fhi «Bft- 
mj an priioiiin of war.— The loot poimgnph of thh artido 
miglit weU have been omitted. It was thonght that it would 
be applied in the main to pnaonen ineapable of farther 
aenriee, whom the captor no longer eared to retain. But aa 
to them there would be no need of providing that th^ 
ahonld not aeire again, while the war laata. - Aa to othera 
it is objeetimiable on Uie ground that it amounts to earn- 
pulsory parole. There is danger that a belligerent, notwidK 
standing the faet that he may be eompelled to land Uie 
prisoners at an enemy'a port, may, nevertheless, be able 
to prevent their aerving again by means of this provirion. 
Probably the enemy could refuse to receive them absolutdy, 
or make a condition of receiving them that the parole be 
waived, but even such a conditional refusal might seem 
harsh, and it is unfortunate that the provision was not 
omitted as waa suggested by M. Bolin at the ilrst Peace 
Conferenesu 

K XV. The AipmreAed, mek or wounded, who ore Itadtd 
at a neutrtd port wiik ike comeni of ike local amikoniUi, mad, 
nfiletff on awraagemeai it made to ike contrarf hetweem ika 
neutral State and Me belligerent Siatee, he guarded hg fka 
neutral State eo ae to prevent them agaim taking part in tka 
operaUone «/ ike war. 

Tke expeneee of tending ikem in hoepitat and iniaming tkam 
ekall he home hg fke State to mHiick ike Aipwreeked, »ek or 
wounded pereone Udong. 

Sh^pwnoked, ete., landed al & neutral port— This article 
was excluded from the old convention aa finally ratified, 
largely because it enabled the neutral state to become a 
prison-keeper for the belligerents, thus relieving one or bott 
belligerents of mnch of the care of the aick and wounded, 
and allowing a more complete attention to purely military 
affairs. It is ea^ to aee how thia might turn to the decided 
advantage of a belligerent engaged at some distance from 
his home territory. By landing his sick and wounded at a 
nearby neutral port, he mifl^t overcome mnch of the ad> 
vantage which his enemy had from fighting nearer home. 
Again the chance of capturing the sick, wounded or ahip^ 
wrecked is mnch less where they may be left, with r\ eon> 
venient neutraL Added to this it waa feared tiiat the mek, 
wounded and ahipwrecked on board neutral vcascls mii^ 



S76 THE 81CI, WOUKDED AVD BHlFWUOXKDl. 

be held immune from eaptniey thus greatly augmenting the 
number that would be landed at neutral porta and leeeen- 
ing the poesible number of priaonere. This last objeetion 
has been obviated by O N Xn, and possibly on this aeeount 
those powers which had objected to the old Article X ac- 
quiesced in this article at the Second Conference. Possibly, 
however, it was because they felt that the benefit to the 
sick, wounded and shipwrecked would outweifl^ the pos- 
sible disadvantage from a military point of view. 

O V XVL After every engagemeni, ike two heOigerenie, 
eo far 0$ mUiUmf iniereeU permit, ehdU take etepe to loek far 
the Mpwreckeds eUk and wounded, and to protect iham ae weB 
ae ike dead, againet pUJage and itt treatment 

Tkeg ekatt eee tkai ike buriai, wkeiker kg land or eea, or 
cremaUon of ike dead ekdU te preceded hg a earefui examimt^ 
turn of ike corpee. 

Com pare Q lEL 

OKZyn. Back hdligereni ehan eend, ae earlg ae poeeMe, 
to ike auikoritiee of ikeir counirg, navg or armg ike mUUarg 
marke or doeamente of ideniitg found on ike dead and ike de» 
eeripOon of^ ike eiek and wounded picked up hg him. 

Tke heUigerente ekaU keep eaek otker informed ae to intern^ 
mente and tranefere ae wM ae to ike admieeione into kaepUei 
and deaike whidi have occurred among tke eick and wovmded 
in ikeir kande. Tkeg ehaU eoBect off ike ohjecte of pereonai 
uee, valudblee, lettere, etc, wkitk are found in ike captured 
ekipe, or wkidi have been Ufthg ihe aide or wounded ipXZo died 
in hoepitaH, in order to have them forwarded to ike pereone cow* 
cemed kg ike auikoritiee of ikmr own counirg. 

Com pare Q IV. 

N XVin. TU provieiane of ike preeent ConvenHon da 
not applg except between Contracting Powere, and iken onig 
if att Ae kelligerente are partiee to Ike Convention. 

a K XI^ Hke Commandere4n4}kief of tke keKgereni 
fleete muet eee ikat ike akove ArOclee are properlg carried out; 
ikeg will have aieo to eee to caeee not covered ikerekg, in a/> 
cordance wiik ike inetructione of ikwr reepective Oovemmenie 
and in conformitg wUk ike general principiee of tke preeeni 
Conveniwnm 

Compare O XX7. 

K XX. Tke Bignatorg Powere ekdtt tdke ike neceeearg 
I for bringing ike provieiane of ike preeeni ConvenUon 



VATIL WAS. S77 



to A$ hiamUdg$ of ikmr imnmiI fartn, and €8p$cUII§ of fib 

ik§m htumm ioJ^kefMk. 

ComiMure O XXVL 

O K XXI. The Signaioij Povm Ki§wii€ tmibrfcftf fo 
Mad or io propou I9 IMr L$gidaiwr§$, if ikdr erimmd 1am$ 
Of inadiqyaU, ike meaimn$ neuimrff far ekoMng im Uma of 
war mdiaidvai aeU of pittaga and %B4rmitamU In rupatt U 
iko aiek and woundad in ika fUai, aa wM aa for pumMn§, at 
an rnnjuiUfiahU adopUon 0/ imnmiI or mUUarf oiarfa, ika mn^ 
aaHkoriaad uae of Uis diaiincUtQ mwrka wMoUKmad in Ariida 
Y iff vetwb not protecUd hf Ika praaaai ConoaaUom. 

Tkep witt communieaia io oaA oikar, ikrougk ika N ai kaHan d 
Choammeni, ika anaeimania fur pravakUng auck ada of ika 
laUai wilkin fva paan of ika raUfScaUon of ika praaani Co 



GompaveOXXL 

K XXIL Inikacaaaof oparaHona of war haiwaan ika 
Umd and aaa foreea of haOigaranU, ika proviaiofu of ika jwmwf 
ConaanKon do not apply axeapi haiwaan ika foreaa aehiattf on 
hoard Mp. 

Pftrtiea that have already made landinp are oobjeet to 
the (Senera ConventioiL 



S78 XBAvs m omvai aho i 



GHAFTEBYL 
xxAVB OF ofnarn axd 

H .XXn. The fight of heaigermU io adopi 
ftaring ik§ «|Mfliy a md mMmUid^ 

SfMial Ctamnttoni and Doebnftioiit mir lfl Un g tte 
nuut of I^Jvfaig tho tnomgr^-The most notable apadal 
ConTentioiir limiting the meana of injnring the enemy are 
the Declaration of St. Peterabnrg, the two Dedarationa 
draim up at the Firat Peace Conference againat the nse 
of projeetflea difFoaing asphyxiating gaaea, and expand- 
ing hnUeta, the Declaration of the Second Peace Confer- 
ence against discharging projeetflea from haUoona and the 
Conyention of the same Conference rdativo to antomatie 
sabmarine contact minea. Th^ will be taken up in order. 

The St Pitersbmrf Dedaratfam^-The St Petersburg 
Declaration reads aa foQowa: 

Considering that the progress of civilisation ahoold have 
the eifect of aUcTiatixig aa much aa possible the calamitiea 
of. war; 

That the only legitimate objecta which statea ahoold en- 
deavor to accomplish during war la to weaken the militaiy 
force of the enemy; 

That for thia pnipoae it ia anffident to disable the greateat 
possible nnmber of men; 

That thia object wonld be exceeded by the employment 
of arma whidi nadenly aggravate the aniferingi of dia- 
abled men, or render their death inevitable; 

That the emgloymeat of andi arma wonld, therefore^ be 
contrary to the laws of hnmanity; 

T%s etmiraetmg parHei engage muhudlg io renaumee, m 
eaae of war among ihemeelvee, ike emplogmenl, (y their nnUiorg 
or fuwol foreee, of any projectile of Uee weight than four hmn^ 
dred grammee,^ which it exploeive, or it charged wUh fulmumt- 
img or in^ammdble euhetancea. 

The limitation of the wdfl^t of the projeetilea waa to 

tflovtMB COM 



J 



traoiAL coNvjuuTunra. S79 

confine the probibition to bullets. It k obvione tbat tbe 
use of abellt is a legitimate meane of warfune. 

lOstaiterprelatieii of the preamUe of the St PeterAur 
PeelaraMoiL— The eeeond dame of the preamble ie to be 
interpreted in the light of the bodj of the Declaration 
and of the other dames of the preamble to mean that the 
only legitimate object which states should endeavor to 
accomplish during war is to wrahen the military forces of 
the enemy, that is, not to esnse them nsdess injury. There 
was no occsslon for laying down any such proposi^n that 
the weakening of the mUiiarf forces should be the only wsy 
of bringing pr e ssur e to bear on the hostile state, thus con- 
demning commercial blockades and the capture of private 
property at sea. This has often been lost sight of in cit- 
ing this dsQse. The United States m not a party to this 
DedaratioiL 

Si^aadiqg bullets— PtoJeetHes for dlifnslng asphyzialiBg 
gaaeSir-llie two declarations of the First Hague Conf er^ 
ence still in force are as follows: 

Tko conbroeting Powen agree to forbid ike emplogmemi of 
frofeeUiee wkiek have for ikeir sols purpoee ike diffueiom of 
ae^fxiaUng or ieleierioim gaeee. 

The eontneiing Powere agree to fofWd ike emplogmeni of 
hvJleie whiA expand or flatten eaeilg m ike kuman hodg, eoA 
ae huUete tke jaekete of wkiek do not entirelg cover tke core or 
are provided wiik ineidone, - • 

The United States has never become a party to these 
Dedarations.* If the question ever becomes a practical 
one, however, both of these means of injuring the enemy 
are forbidden to the United States in esse theysrej'csl- 
culated to cause unnecessary suffering,** by H XXm (e). 
The question is not likely to become a practical one, as theifd 
were no such projectiles as those described in the first I>e»* 
laration in existence at the time the Dedaratimt was drawn 
up and no such bullets as those described in the second 
Declaration are now manufactured.* 

Disdiaige of pro jeetOes trom baBoons^— The Declaration 
drawn up at the Second Peace Conference is ss follows: 

Tke ContraeUng Powere agree to prokibit, for a period e»- 
tending to ike cloee of ike Tkird Peace Conference, Oe dUdmrge 



pp. iss, 1S4. 
• 8 Abl Jooi; eC Uter. Law, TS. 



880 MiAKs or ormm aho 

of proiecHU$ atid expUmvu fnm hailaim$ or 6y olft«r nev meO- 
odiof a mmOmr nahure. 

Thk b the renewal of the DeeUratioii drawn np at the 
FSnl Peace Conf erenee, which had e3q>]red by reason of 
its llTe-year limitation. The change in the limitation pre- 
Tonts another lapse before the next Conference. It was 
thought that some limitation was necesmy, as with im- 
proved methods of aerial navigation this may become an 
effective and not^nnnecessarOy cruel means it warfare. 

AutomatlD submarine eontael mines.— The Convention 
relative to the laying of automatic submarine contact mines 
k as follows: 

Inspired by the principle of the freedom of sea routes, 
the common highways of all nations; 

Seeing that, althon^ the existing position of affairs 
makes it impossible to forbid the emi^oyment of automatic 
submarine contact mines, it is nevertheless desirable to 
restrict and regulate their employment in order to miti- 
gate the severity of war and to ensure, as far as possible, 
to peaceful navigation the security to which it m entitled, 
despite the existence of war; 

Until such time as it is found possible to formulate roles 
on the subject which shall ensure to the interests involved 
sll the guarantees desirable; [the Plenipotentiaries of the 
Contracting Powers] have agreed upon the following pro- 



An.L ItiifofWdm: 

L 2*0 ley unanckored auiomaUe eoafsd sitset, no9pi v&en 
A<y are $o eonttructed a» to IkeoomB Aormlett one \fmr di smmI 
afiet ike permm who laid ikem uaam to eonirol ikam; , 

2. To lay anchored aukmaHe eoniaei minee which do not 
become harmlese aa aoon aa (key have broken loou from iheir 

8. 2*0 «•• iorpedoee which do not become harmiUu when 
ihef haee miteed their mark 

An. n. It ie forbidden to lay automatic contact minee of 
the coaet and porta of the enemy, witk tke ech ehfect of uUcr" 
cepUng eomaieficial Shipping. 

An. in. When anchored automatic contact minee are em- 
pioped, every poesible precaution muat be taken for the eecurity 



AU10MATI0 SraiUBIVB OOXTAOt XDIB. tSl 

Tk§ MUgeretiU umdeHahe to do Metr ttfinofl to nmitr ikom 
mimoi hortklm$ wUkm a UmUid iiM$, and» tkomld ikog cmm to 
&# mndot omrvoittameo, to noUfy ik$ iangor aomeg at «0mi ct 
wiOUotf oxigendu pormii, hg a naliM adiresoed to Aip ommon, 
wkiA mtui oko ti commmmeatod to iko OovemwumU through 
ih$ tfinloBiflffa AoMMoL 

An. IV. Neuind Powon whiA Jag ntomotic eoniod mmoo 

froeouHono ao mro impoood om hdUg ormt o. 

The mouind Powor miut inform Mp ownon, hg a mtieo «•- 
ouod in advaneOs whoro autowuitic eoniaet mimoo hooo ft«m IndL 
Thio noiico muMt ti eommwUeatod ai omeo to iho QooommmJb 
through iho dipUmMo Aonnot, 

Aja. y. At iho dooo of iho war, iho ConbraeUng Pomon 
umdartako to do ihoir uimoot to nmooB iho minoo vfttek ihog 
had hM, oaA Powor romofrimg Ho own mdnoo. 

Ao rogarda anchored auiowuitie eoniaet mmo$ laid hg ono of 
tho hiUigerento off iho eoaot of the other, ihdr pooiUon mud 
5« notified to iho oiher partg hg iho Powor whiA Und thorny 
and eaih Power mnil proceed wiih the lead poeaSUo ddag to 
remove the minee in He own waters 

An. VL The Contracting Powere whiA do not at preeent 
own perfeded minee of l&« pattern contemplated in the jwmwf 
Convention, and whiA, eoneefuontlg, could not at preeent carrg 
oui iho rulee laid down in Artidee I and HL undertake tie 
conved iho wuMrid of ihdr minee ao eoon ae poemUe, eo aeto 
hring it into co nf or m ttg wUh the foregoing requiremimte^ 

Oonmiitioiii inoomptota^-Tliis Conventiaii k to remain 
in force for eeyen yearty but nnlen denonheed it k to eon* 
tinne in force after the e3q>irmtion of tliat period. In tho 
event of the qn^Btion not having been alrcady reopened 
and iettled by the Third Peace Conference the Contraeting 
Powera alao nndertake to reopen the (faeatixm mx montha 
before the expiration of the aeven year period. It vraa 
evidently thought at the time thia period waa Used that 
the Seemid Coi^erenee woold meet within aeven yeare in* 
atead of eight, aa flnaDy decided on. It ia to be noticed 
that the placing of anchored minea on the high aeaa ia not 
prohibited. Thia waa bitterly objected to mi the part of 
Great Britain which deaired to reatrict the placing dt theaa 
—' — at leaat to a diatance of ten milca firam the poaitioQ 



S8S 1CX4IIS OF OWWaXBM AND 

of the gnm on land and to make more eff eetiTO tbe pro- 
hibition against eommereial blockades hj mines. She in- 
sisted that her position in attempting to eonllne the nse 
of these mines to the territorial waters of the belligerents 
and for strategie purposes was supported by international 
law independent of oonTention,* and in this eonld daim 
the snpport of the provisional aetion of the Institnte of 
International Law in 190C* That the Conyention did not 
go further was a eoncession to beDigerent rii^ts. 

H XXin. In addiUan to Iks pn^OniianM prwridid kf tpeo^ 
ftflj ConvenHom, U it ttpeeMy foriiddm^: 

(a) 2*0 emplojf paiton or ptmaned weapotu; 

(b) To km or wound iroaekeroudff individtiali h^ionging io 
ik$ hoMo nMon or ormy; 

Article 148 of the American Instruction reads as fol- 
lows: 

Ameriean Artide against sssairinsHon,— ^^Assassinaaon, 
The law of war does not allow proclaiming either an indi- 
vidual belonging to the hostile armj or a citiaen, or a sub- 
ject of the hostile goTemment, an outlaw, who maj be 
slain without trial by any captor, any more than the mod- 
em law of peace allows such international outlawiy; on 
the contrary, it abhors such outrage. The sternest retalia- 
tion should follow the murder oommitted in eonseiiuence 
of such proclamation, made by whatever authority. Qvil* 
iied nations look with horror upon offers of r e w a rds for 
the assassination of enemies, as relapses into barbarinn.*^ 

(c) To wound or InU an onomjf wko, having laid down kk 
arm§, or having no longer moana iif defonm, ha» mrrondarod alt 
diocrMon^ 

Quarter even to thoss who have vldaled the laws of war. 
— nie term ''surrender at discretion*' was objected to on 
the ground that it implied a right of life and death over 
the prisoner, and it was urged that the quali^fing phrase 
''at diseretioii" should be dropped; but, on the other hand, 
it was urged that those who have been guilty of violations 
of the laws of war are still liable to suffer death at the 
hands of their captors, so that, instead of the qualifying 
phrase making the provirion harsh, it rendered it 

« W«tkk«, n IkrttfaatiflBal law, SSS-SSS. 
• 8m 81 AmnuifK 8S, «f Mft SSQl «t eif. 



QUAKtBL B88 

• 

himiane by extending even to thcM the privilege of 9111^ 
tcr.* 

When Bol pnetieeUe^-Wertleke saye: *'The admitled 
ease in whieh it ia not praetieable ia that whieh oceoza diir> 
ing the eontinnanee of fighting, when the achievement of 
victory would be hindered and even endangered by 8top> 
ping to give quarter instead of catting down the enenqr 
and roahing on.'** 

(d) To deetan that no fuarier wiU h§ givm; 
PtoMMtion of dedaratJon of '*no qnarter/*— The need 

of thia provision against the declaration of no quarter m 
even greater than that against the refosal of qoarter, as 
instances of threats to give no quarter have been more 
numeroua than the actual refusal to give it 

(e) To emfiojf arm$, projocKUg or material jakuhUi I0 
cause uaneeeeearf eufferimg; 

PrcddUtloii of unneoessarQy. omd anna and projeetflsa. 

. —Thia principle is applied in the .dedarationa against ez* 
plosive and expanding bullets, so that, if those bullets are 
unnecessarily cruel, the signatoriea of thia article are just 
aa much bound not to use them aa are the powers i^lch 

. have adhered to the express declarations against them. The 
declaration which Capt Croaier wished to substitute for 
the declaration against expanding bulleta waa along these 
lines,* although in forbidding the use of bullets exceeding 
the limit necessary to place a man immediately hon ia 
oombaH it waa more specific and so of independent value. 

(f) To make improper ueeofa flag of iruee, of ike noHemei 
flag or ike mUUarg ineignia and uniform cf ike enamg, ae wdt 
ae ike dieUncUve eigne of ike C^eneva ConvenUon. 

Uniform of the eneqy may be used for approaeh Inil nol 
for 4gktingir-The use of the national flag ud of the md- 
f orm of the enemy ia allowed for purposes of approach, but 
before fighting is begun, the true character of 4he shqi or 
of the soldiers must be disclosed. This rif^t of approach ' 
is wen settled, although made little if any use of in recent 



• Pratoeob 1 €f tlM OommltlM sad 4 €l tli* ftdl Obatewo^ FuL 
FUpcn, 1870^ VoL 8S, IIIm; Now L 

t n iBtcffBAlkul Law, 7iw 

eBm emfft p w ISSL . 

• 8m ehOf H, XXiV* 



S84 ifXAXi or oriKm Am MfMWL 

times, eBpedally <m land. Complainti of fighting in flio 
uniform of tiio enemy, however, have been nnmeroai. 
The American Instmetiona, Artide M, provide: 
**U American troops capture a train containing uniforma 
of the enemy and the commander eonaiden it advisable to 
distribute them for use among his men, some striking mark 
or sign must be adopted to distinguish the American sol- 
dier from the enemy." 

(g) To deairoff or mm ih$ enem/g pnp$r§g, wnhm muik 
de^ueium or Mtnin be impmraiiodfi d^mamied tf tt# naottti- 

Use of devastattoar-This provision waa considered supei^ 
flaous by some, as the treatment of enemy property is 
treated in much greater detail in the subsequent art^es, 
but the later articles refer especially to the treatment <rf 
property by an occupying army, while the provisions of 
the present artide especially refer to its treatment in con- 
ncetion with active militaiy operations. In other words, 
it refers particularly to devastation as a means of injuring 
the enemy. Devsstation waa formerly considered a legiti- 
mate means of bringing an enemy to terms or of diverting 
him from lus intended plan of operations, but it is no longer, 
considered proper as an independent militaiy operation, 
and is now allowed only as incidental to other militaiy 
measures, as where the destruction of houses k necessary 
to dear the Add of battie or where whole districts are 
swept of supplies in order t o prevent their use by the enemy. 

Prindples of H XXIII applieaUe to maittfane warfurs 
also.— The principles of the above prohibitions apply to 
naval forces equally with land forces, although their ap- 
plication to naval forces haa not yet been made the subjeet 
of international agreement 

(h) To declar§ dboHisked, ni$pended or tnadmwitb fa a 
Coiari af1awih$ righU amd oMohb of Ao naUandb of lk# koilili 

Interpretation^— Thia dause waa introduced at the 8ee- 
ond Peace (3onf erence by the Oerman ddegation and haa 
recdved littie or no comment The prohibition against the 
extinguishment of private choses in action h merdy deo- 
laratory of what haa probably been the law for many years, 
but the prohibition against the suspenrion of choses in 
action apparently wortai a dedded diange, at least in An^^ 



Bumnxmas or oHoen ur jkcnom. fM 

Ameriean law. A literal interpretation of the danae would 
not work a change, aa it k directed at dedarationa of the 
politieal authoritiea, whereaa in the United Statea and Rnf- 
land it haa not been enatomary to make anch doelaratloniy. 
but the aoapenaion of the choaea of aetion of the enenqr 
haa been conaidered by the conrta to ariae from the war 
itadf . The intention of the provision ia dear, however, 
that these choaea in action ahall not be suspended hy the' 
political anthorities even aa a war meaanre, much less that 
thegr ahall be suspended aa a matter of conrse. It will, 
however, be a question for the courts to dedde. In Bnf> 
land the plea of alien enemy haa been enforced with a 
good deal of strictness. In the United States, on the other 
hand, it haa not been favorably received, so that the covrta 
are liable to interpret this danae with the liberality whidi 
kitsdne. 

A .heUigenni u UhewtMe forhidiem Is compel ih$ noftoiialf ^ 
ike koiide party to take part m ike operaUoni of war direeted 
againtt ikeir own coamirp, eoem if ikop were in ike beUigereafe 
eertnee before the eommeneemeiU of tt# war. 

This corresponds to Artide XLIV of the old convention. 
The universal character of the prohibition is probably 
brought out better here tlum under the head of Occupation. 
There are similar prohibitiona in H YI and H LIL In 
H Ln the Oovemment trandation reads '^militaiy opera- 
tional' for the same expression that is here trandated *'op- 
erationa of war.'' The latter is the better ezprcBsion, but 
the difference seems not to have the rigpiflcance given it 
by WesUake.^ It would seem that the latter merely ez^ 
presses more adequately what waa intended to be ezprased 
by the former. 

Bervioea not to be required of nationals of the enamy^— 
This provinon forbids forcing the nationala of one bcl^- 
erent into the hostile army or compdling them to labor on 
works of offense or defense in the theatre of war. Beyond 
thia it is difficult to say how far it goes. (3ount Lena de- 
dared at BrusBcb that ''no Oovemment would engage not 
to press guides into the service, not to employ the laborers 
of the country on lines of communication, not to compd 
carriera to transport the meana of subsistence^ and to per- 

MU iBtannftioMl Law, asa. 



M6 UKAMB or OVFIHU AMD 

form other ■ervieet.''*^ CompiilBioii to wnro m gnidct hai 
now been regelated by H XLIV, but otherwiie bis itet^ 
ment leems to be still aceurate. Tbe last elaase specifying 
that this prohibition holds ''even if thegr were in the bel- 
ligerent "b senriee before the commencement of the 'war" 
was added at the Second Conference. 

InoMBg to tresson or desertion iinlawfd^--WettIake adds 
that '*it is considered nnlawfol to incite the enenqr^ troops 
to tresson or desertion, a role which was prcl>abl7 intro- 
dnced for the mutual conTcnienee of commanders and by 
a kind of chivalry between them and which shoold csrxy 
with it the nnlawfolness of enrolling deserters as recmits 
• • • but it is not considered nnlawfol to stir up in- 
surrection in the enemy^ii country/*" 

H XXIV. Btt$e$ of war and iha emphjfmmi of maawtng 
neeeuarff far obtaining infarmaUan dbavi iha enam^ and ika 
coaniry are comidand parmuoMa. 

Buses of W8r<^— This artide must be read subject to the 
numerous exceptions contained in the other articles of the 
Begulations. While stratagems are a perfectly lawful 
means of warfare, they do not wsrrant breaches of fuA, 
treachery or the use of the Bed Cross or of flagi of truce 
for other than their acknowledged purposes. . 

H XXY. Tka Ma€k or hombardmani, hg whaUvar wuana, 
of iowm, vUk^ea, dweUtnga or huUdinga, whiA ar$ und^andad 
ia prohibiiad. 

Undefended towns not to be b ombard ed^— This is an ap- 
plication of the principle of H ZXm (g) that property 
of the enemy shall not be seised or destrc^yed except where 
this may be imperatively demanded by the necessities of 
war. The necessities of war cannot demand the bombsxd- 
ment of an undefended town as a militaiy measore. This 
srtiele, however, does not deny the use of bombardment 
as a penal messure where a legitimate demand for contri- 
butions or requisitions haa been refused or where the popi^ 
lation has been goilty of violating the laws of war, or ss 
a messure of retorsion; but its use even in these cases 
would be extreme and oidy justified hy imperative necessity. 
The phrsse "by whatever means" wss added by the second 
conference so as to indude bombardments by airshqis er 



uPkoioeol4€llb»< 
ttll UWrasftioMa Law, 7C 



Mr 

other meau whiek the infemutj of man may deviae. At 
the preaent tinier howeTor, the bombardment of even de- 
fended toima by akahipa ia prohibited by the apeeial Dee- 
laration.** 

It ia to be notieed that thia artide apeaka of undefended* 
not of unfortified, towna. Only where there are no f ortl- 
fleationa, no troopa, and no open reaiatanee by the popn* 
lation, doea thia artide apply. 

Bombardment of the reaident portiona of towna.— It haa 
been qneationed whether towna aeparated aomewhat from 
the f ortifieationa whieh defend them are liable to bom- 
bardment. Thia ia a part of the larger queation aa to 
whether the portiona of towna not need for militaiy pu^ 
poaea are exempt from bombardment. It mnat be admitted, 
howerer, that thia k one of the rigora of war •whieh bel- 
ligerenta have held to be ao naefnl aa not to be given np. 
Of ita hardahip there ean be no queation, though it eannot 
eompare with that ci a aiege. 

H XXYL Tk$ Memr m eammand €f an aHaekmg fartB 
muai, hefar§ eamwiencing m hamhardmmU, exeefi ta oatit of 
ca$auli, dbaUimhu power to warn the amihoriUot, 

Heoeaally of giving warnluf of be rab a r d ment eioeijC In 
eaaea of aoaolt^— Notiee m not reqoiredin eaae of aasauH, 
becanae it would often defeat the objeet of the aasault by ' 
putting the enemy on guard againat it. The exception ii 
more apeeifle than that in the naval convention, whieh only 
requirea notice "if the mflitaiy aitnation permita.**^*' If 
the more general exeeption ia depirable for naval waifture 
it ia hard to aee why it ahould not be equally dcairable in 
land war&re. The original Broaada article waa broader. 
It made an exception of caaea of '^auipriae.'* Notice in eaae 
of bombardment ia ordinarily required, in order that pr^ 
cautiona may be taken for the aafety of worka^of art,Mte., 
mentioned in the following article, aa well aa that thoae who 
wiah to withdraw from the town may do ao. Sndi with- 
drawal ia often allowed at the commencement of a bom- 
bardment or nege even when it ii refnaed later. At ndther 
time may the withdrawal be regarded aa a atriet ri^it 



uBm Mqwv, p, 170} War tanbeidBote hf wKwaX torn nt Infra^ 



t8B ' UEAHB or OFFEXU AMD 

H XXVIL In tUgei ami homharim§nig aU sMcetMiy 9Up§ 
muti h$ taken to apara^ a$ far oi poatibU, JmOdinga dedieaUd 
lo reUgian, art, tdenee or chariiabU furpouis hiiiarie mann^ 
menU, JmpUak and piaeeg whara ika tick tmd wounded are 
eoUeeied, provided iheg are not being need ai ike Ume for mUi- 
tarn purpaeeom 

Hie ike duig of ike heeieged to indicate ike preeenee of Mdk 
buildinge or piacee bg dietinetive and vieible eigne, wkiA ekaU 
be notified to ike enemg beforekand, 

"Historie monumenti*' were indoded within the prate»> 
tkm of this artide by the Second Conference at the 108^ 
geition of Greece. 

Sign for proteetUm of drardiei^ eto^— Am the Bed Crooi 
in designed to protect hospital! and ambnlancesy etc^ it 
should be used only in connection with them. Some otiier 
sign is necessary in the case of churches, mnseoms, schools^ 
etc It would have seemed desirable to have brought this 
artide into conformity with the nayal Convention by re> 
quiring the signs which are there spedfled in similar cases^ 
instead of leaving the matter to the local authorities, but 
as a matter of fact it is likdy that the practice will cod> 
form. 

BonAardments by naval forces.— Bombardments by naval 
forces were made the subject of the following convention 
by the Second Conference: 

Animated by the desire to realise the wish eqnressed 
by the Itet Peace Conference respecting the bombard- 
ment by naval forces of undefended ports, towns and vil- 

Whereas, it is expedient that bombardments by naval 
forces should be subject to rules of general application, 
which would safeguard the rights of the inhabitants and 
assure the preservation of the more important buildingi, 
by applying as far as possible to this operation of war 
the prindples of the Begolation of 1899 respecting the 
Laws and Costoms of Land War; 

Actuated, accordingly, by the desire to serve the inter- 
ests of humanity and to diminish the severity and d istre ss 
of war; 

[the Plenipotentiaries of the Contracting Powers] have 
agreed upon the following provisions: 

uBMlnfra^pwlsa. 



MMfBiBMClirai IT VITAL lOMM. M9 

An. L Tk0 hawihardmmU if Moot frnta of undMf^Uti" 
porU, iawnt, vOlagei, dwMmf^ or hmUin^ ig fwrbUimL 

A pkes eannoi h§ ftomtercM uidp iecciiM auiamMe mk- 
MOTHM amlad muM« ar« §mduMr §d ojf i h€ luutaur. 

B>mviU0iMi Compare H XS:7. SeTeral of tho P^»w- 
en made rewrrations aa to the laat paragraph. It hardly 
aeema logieal that the partienlar hand of def enae ahoold 
make a difference aa to whether a town maj be bombarded, 
but it ia coneeiyed that if a fleet wiahed to oeeopgr a town 
and waa prevented from doing ao hy automatie eontaet 
minea that it wonld be at liberty to effect ita porpoee by 
meana of bombardment. The evident idea of the drafteia 
waa that a fleet mif^t wiah to bombard a town protected 
by f ortifleationa merely for the pnrpoae of deatroying the 
f ortiflcationa, bnt that antomatie contact minea eoold not 
be deatroyed in that iniy, ao that it woold be fimitleBB to 
bombard a town Botdp becaoae they hiqppened to be in 
front of it 

Ask. n. MUiiarf wotIbb, tnUUarg or fMwal $ M tl li A mimU, 
dBpMs cf amu or war wuMrid^ wodsAap§ or pUmi whiA wM 

Aip§ c/ ipor til ike karbowTs are iie|» AoMver. indmiid ta fUf 
prohtbUUm, 7%$ eammander of a fMwal fane may deelrog ikem 
wUk arHUerf, after a aamnume faOowei by a reammMe fime 
of waiiing, if eM oQior meama are impouihles and wkem Aa 
local aiaXkonUm Jkoao met floamla o f doolniyoi ikoai wtlUa Oa 
HmefiMd. 
He tacira ao rw^onotMilf for any 'imoaoufaUo damage 



If for miliiary reaeome immedkie aeUon «t fMociaery; and 
no delay can be aJhwed ike enamff, U ie madenhod Aal Ao yfo- 
htbUion to bombard ike wndaf ended town kelde good, aeinika 
one gioen ta pamgrapk 1, and thai ike eommemder AM ieike 

ae poetible. 

All n peonUar to naval co n ven tl oar-There ia no dnular 
proviaion in the convention for war on land. It waa prob- 
ably felt that the army woold have no anch difkoUy aa 
the navy in deatroying war material in an undefended 
town. The proviaion that the other parte of the town ahaU 
be damaged aa little aa poaaiUe ia notaUai ^ 

19 



IM niAm Of ormrtt am 

Axt.IIL After du$noiie§JuuhHi^givm,fk$homb»dwi^ 
of undefmndei porU, <o«iu, vSBagu, dwMng$, or hu!iUmg$ 
fluy ft« commmui, if ik€ local cutikorilieff, afUr a formal mmr 

for provitUmo or oupplieo fueuaarff for ike immeXaU wee of 
ike fMwal force before, ike plaee in fueeHatL 

Tkeee requieiUone ekatt be in proporUon io tke reeoureee of 
ike plaee. Tkeg ekeiU onlf be demanded in ike name of ike 
eommander of ike eaid naval force, and ikeg ekaU, ae far ae 
poeeXhU, be paid for in eaek; if not, ikeg ekaU be evideaeed bp 
reeeipU. 

JUvsUUkm. lOtttaiy taaeeaaan^Aa is tte case with 
the lud f oreeSy so with the naval f orees it m proper to re> 
sort to bombardment aa a penalty for not fornishing reqni- 
sitions. This artide ahovQd be earefoUj compared with 
H LD. The form of the second paragraph k in accord 
with Article LII of the old convention and doca not pr^ 
scribe as H UI docs, that the "payment of the amount 
dne shall be made as soon aa possible." 

An. lY. Undefended parte, towne, mUagee, dweOinge or 
buOdinge map noi be bombarded on aeeomni of faOlwre to pap 

Ibmsj oonftrflmtiflns \rj naval f ones f oiUddsn^— Here 
naval warfare differs from that on land. In certain cases 
moncj contribotions maj be exacted hp militazy forces,** 
and in those cases they may be enforced by the bombard- 
ment of undefended towns, bat the reasons for allowing 
contributions hp land forces do not apply to naval f orcca. 
The latter would be too much of the nature of 
tiom paiage. 

Ak y. In bomJbeardmotOe bp immJ forcee attike 
meaaaree muff be teiken bp ike comnumder io epare ae far ae 
poaeible eaered edifieee, bwldinge need for ariieiie, edetMfia or 

wkere ike siek or wounded are eoUected, on As wndereiandinp 
ikai ikep are not need ai ike eame funs for miUiarp pnrpoeee. 
/< if As d«fy of ike inkatitanie to tnJKcaU enek sioaiisMiilt, 
edifieee or pHaeee bp vimbU eigne, wkiA ekaU eonM of larpe 
eUff reeiangtdar panele divided diagonattp into two cokwred 
triangular portione, ike upper portion lHaA, ike lower portion 



M8tt iefre, ^ UL 



BT VITAL womcm. S91 



Imp gonmiBl ofw land oormtioiL— Compare H XZVIL' 
Tbe tpedilealion of tho kind of lign to be used b a great 
improTemettL 

An. YL If ik$ mUikar^ aUmium permiig, ik$ eomm&mder 
of UU aUadnng fMwal force, before eomwieHcing ike fteMierl- 
meni muff do hie almoif I0 warn ike oiMoriHee^ 

(Compare H XXVL Am already pointed oat» the pronMS 
''if the mil itaiy l itnation permiti," might well be aiibatl* 
tnted in H XZVI for "except in eaaea of aaeanlt." 

An. VIL A town or place, eoem whom iakem by flona^ wu% 
not he piMaged, 

Compare H XZVm. 

HXXYIIL Thermageofaiom%orpUue,oeonwkemUikoa 
hf aeeaaii, ie prekihML 

Towns taken hj aoanlt not to be pHlaged^— The pillage 
of a town taken by aasanlt and the refnial of quarter to 
its defenders, espedally where there had been an obstinate 
resistance, had seemed to be so nnaToidaUe aa to hafo been 
recogniied. in times past as legitimate, even when it waa 
regretted. So well established was the old role that it waa 
deemed necesury to have this special article in addition 
to the later article prohibiting pillage in geiMraL 

H XXIZ. A pereon can only 5s conMered a epp when, ad- 
ing iiandeeHnelg or on faUe preUneee, he odtetaf or endoaeore 
to ehtain informaUon in the aone of operaiione of a heOigereni^ 
wUh the inienHon of eomanvnieaUng Uio the hoeiUe partp. 

Thve, eoidiere not wearing a dieguiee who have peneMod 
.into ike tone of opemtione 0/ ike hoeiHe armg, for ike parpoee 
cf obtaining information, are not coneidered epiee» BimHiardg, 
Ifcc fcUowing are not coneidered epiae: BoUUere and deiSang, 
carrging out ikeir mieeion openlg, inirueted wUk ike dMeerg 
of deepaickee intended eifker for ikeir own armg or for ike 
enemj^a armg. To tkie elaee belong likewiee pereone cent in 
baUoone for ike purpoee of carrging de ep atchee and, get^sraOg, 
of maintaining eommnnicatione between the different parte of 
an armg or a territorg. 

nenWiig Inf ennalion wttUn the ifa— of the ensn^ da»> 
destinely fha essence of spying^— Qy a soldier not in dm- 
goise is meant a soldier in nnif orm. It was nrged at Bn»- 
sds that, so long as a soldier is capable of identillcatioB 
as snch, he shoold be entitied to the benefit of tiie second 
paragraph since it ia to be presmned that he ia acting with 



IM niAm Of offwtt Am 

An. IIL After du$ noiks Juu Um fwm, fk% limhardmmd 
of imdef ended perte, iowne, piOagee, dweKnge, er JntlUmge 
mag he cemmeeied, if fk^ loeol cui&oriiMi, afUr a femeei ewmr 
nume Aof heem made to ikem, dedme to comptg wiUi re^MUane 
for proeieione or euppliee neceeearg for the immediaie nee of 
ike nawd force before ike ploet m fueetiotu 

Tke$e repneitume ekaU he m proportion to ike reeonreee of 
ike place. Tkep ekdU onlf ft« dememded in ike nawie of ike 
commander of ike eaid maedl force, and ikeg ekaU, ae far ae 
poteQde, he paid for w caA; if not, ikeg ekaU he eridenced hg 
reeeipte. 

Baqniittloiii. lOttlaiy txwvtioiL-*As k the eaie with 
the land forees, wo with the nayal f oreee it m proper to re> 
sort to bombardment as a penalty for not fnrnkhing reqni- 
•itiona. Tliia artide ahoidd be earefoUj eompared with 
H LD. The form of the aeeond paragraph m in aeeord 
with Artiele LII of the old eonTention and doea not pio- 
aeribe aa H LII doea, that the ''payment of the amount 
dne ahall be made aa aoon aa poaaible.*' 

An. lY. Undefended parte, towne, mUagee, dwMnge or 
huOdinge aiaf not he homibarded on aecemni of faHarc to pag 
moneg conir&uUone. 

Mniqr eontribntiooa by naval f ofoea f orUddear— Here 
nayal warfare differs from that on land, in eertain eaaea 
money eontribntiona may be ezaeted by militaiy foreea,^ 
and in thoae eaaea th^ may be enf oreed by the bombard- 
ment of undefended towna» bat the reaaona for allowinf 
eontribntiona by land f oreea do not apply to naval f oreea. 
The latter woidd be too mnch of the nature of ranMma 
from pillage. 

An. y. In homiardmenie hg naael forcee dtt ike neceeearg 
meataree mnet he taken hg ike commander to epare ae far ae 
poeeXhU eacred edifieee, hyUdimge need for artieiie, enenUfe or 

wkere ike mek or wounded are eeUeeted, on ^ underetandmg 
ikai ikeg arc not need at ike eame Itaie for mHitarg parpoeee. 
Itieike dutg of ike inkeibUante to indicttU enek monwnenie, 
edifieee or placee hg vieibU eigne, wkiA ekatt eoneiet of large 
eUff netangular pancle divided diagonattg into iwo coloand 
triangular porOene, ike upper porHon tiadf, ike lower portion 

MBit kfm, ^ ai4. 



Bonosnu nmmowmsE w 



GHAPTSB VIL 
V0irBomu mmooina w 



H XXXIL A ptntm u regarded ag bearu^ a fla§ of frvoi 
who hoM hum €uikanM0d If one of ih$ heiUgermiU io mUr info 
eammwuieaium wUk UU other, and who advanen h mrim§ m 
whU$ flag. H§hoMa right to woiolabUitg, o$ weU a» tho Irw* 
p$tor, hughr or drummer, fho ftag^hearor omd inierprotor «k« 
mog oooomptmg mm* 

H XXXin. The eommamdor to whom m flag of irmeo u 
j0fi< fMnotiMott eoMoo obUgod to roomvo it 

H§ mag take ott tho noeonarg gtopo to proooni the emoog Islb- 

In ca$€ 0f afmm, ho hag tho right to detain Ihe emoog Imi* 
poroHtg* > 

TIm flag, of truM aol to be mtooMd^— The proviaknie of 
tlus artiele are neeenary to prerent the flag ci trace Cram 
being need either to gain time, or to depriye the enenqr 
of an advantagOi or to diseoTer hia moTementa. If the 
bearer of a flag of trace preaenta himadf during an oi- 
gagement» the enemy m not obliged to forego an advantage 
which he m about to gain and inatantly to ceaae firing, and 
if the bearer of the flag of trace m accidentally injured no 
blame m incurred by the other belligerent 

"If the flag proceeda from the enemy'a linca during a 
battle, the ranka which it leavea muat halt and ceaae their 
Are. When the bearer diaplaja his flag, he will be aig^ 
nailed by the oppoaing f orce» either to advance or to re> 
tire; if the former, the forcea he approachea will ceape flr> 
ing; if the latter, he muat inatantly retire^ for, if he ahould 
not, he may be fired iqKm.'^ 

Dedaration nol to receive flag of tnioe for filed p«iod 
diaapprored oL— The Brunda Declaration contained a pre- 
viaion recognising the right of a commander to rrfoae to 
receiTe the bearer of flaga of trace for a flzed period, but 
at The Hague it waa thought that thia waa a praetiee to 
be regarded with diatavor and the proriaion waa ^dropped. 

iHallMk, btaMftkMl Law, H, fu aai. 



S94 voKHomiB oraaoauio or nuMwunu, 



Tkm baanr of a lla( of tnioo maj bo Idlndf oUML— Tho 
beorer of a flag of traeo may be Uindf olded and prevented 
from boldSng eommnnication with petaona other than thoae 
deaignated to eondoet negotiationB, in order to prevent hia 
obtaining information. 

H XXXIY. Tk$ MiMy 2oMt hig righU of mvioUMUp if 
Uu froved ma clear and tneanteitabU manner iJM 
advantage of hie privileged ptmUan to prooohe or oommtl on 
od ef treadkierf* • 

H XXXY. CafiMaiione agreed upon between ihe contract' 
ing partiee mtut take into account the rulee of mUitarg honour. 

Once eetUed, iheg muet he ecmpulouelg eheerved hg both 



Powera of a oommander wtOi reapeet to eapttnlatioiia^ 
The terma of a capitulation may vary from the abaolnte 
anrrender of a plaee or of a body of troopa to the grant 
of **aU the honora of war/' indndmg the right to mareh 
out with odora flying and drama beating. Where there haa 
been no ezpreaa delegation of powera, the grant of more 
favorable terma than theae in beyond the powera of a 
oommander, and if hia government refoaea to ratify the 
eapitulation there ean be no oecaaion for ehargea of bad 
fkith or double-dealing.* There k leaa likelihood of a eom- 
mander'a acting in exeeaa of hia powera today, however, 
than there waa formerly, aa he ia likely to Inesp in doae 
toueh with hia government by telegraph. 

Property not to be deitnqred between the algidng itkid 
eseentlfln of oapttnlationa^— The American Lutruetiona, 
Artide 144, provide: "So aoon aa a cajntolation ia ngnod, 
the capitulator haa no right to demoliah, deatroy, or injure 
the worka, arma, atorea or ammunition in hia poaieeeion, 
during the time which elapaea between the ngning and the 
execution of the eapitulation, unleaa otherwiae atipulated 
in the aame.*' 

H XXXVL An armietiee euepende miUtarg operatione bg 
mutual agreement between ihe belligereni partiee. If tfo tfufu- 
tion ie not defined, the belligerent partiee mag reeume operas 
ticne aH ang time, provided alwage that iJUi «iiaaiy it wiamod 
within the time agreed upon, in accordance wOh Ae terme of 
ihe armietiee. 

Uae of the.tenna^ anapenaioii of ann^ tmee aa 



Lmr^n^Pfuaio-aaa. 



tw 



— Inteniatioiial jurisU, indnding British and 
piOAUy make a diftinetioii belwen ''raapeiitioDS of anu,'^ 
temporaiy and local agreement!, and "armistieei^" of a 
more general nature. Tltis dktinetion b also a matter of 
Continental nsage» but it k not f oond in American and 
British practice, in which the terms trace and armistiee 
denote loosdj almost any suspension of hostilities. On the 
Cimtinent, the armistice is marked by the fixing of « neu- 
tral sons between the hostile armies^ which does not exist 
in the snspension of arms. 

H XXXVIL An armiiHe$ any h§ gm^mi or loosL . Tks 
fSrH iuiptmdi ih$ mUiiarg operatUm» of ih§ heOtgereta BUiu 
ev0rp0h$r$; lk# $$eand aiUg heiwem urtam fraetimg ef Oe 
biUigenni ormiet and vUkin a jlsed ntiim, ' 

Whal is permitted dnrlqg an amdstioe shonld be «b- 
presdj sttpnlated.— To avoid recriminations it is desirable 
that jnst what is and what is not permitted during an 
armistice should be the subject of express stipulation as 
the rule that adyantage cannot be taken of an armistice 
to do acts which the enemy could prevent but for the arml^ 
tice^ is diflicult of application and not universally re^ 
ognised.* 

The American InstructionB, Article 148, provide: "When 
an armistiee is concluded between a fortified place and the 
army besieging it, it is agreed by all the authorities on this 
subjeet that the besiegeir must cesse sll extension, perfe^ 
tion, or advance of his attacking works, as much as firom 
attacks by main force. 

'*But as there is a difference of opinion among martial 
jurists whether tho besieged have the ri|^t to repair 
breaches or to erect new works of defense within the place 
during an armistice, this point should be determined by 
exp re ss agreement between the parties.'* 
. SspeeiaUy as to the supply ef provisions in ease of a siegt. 
— The introduction of provinons into a besieged place dnr> 
ing an armistice cannot be demanded of strict right. It 
is a ifnestion above all others that should be made tte mat- 
ter of express stipulation. 

HXXXVni. AnarmiMe$muHh§noHfUdoiidaigamim 
good Um$ io fko eompeUni mUJuniim and to iho iroofo. Ho^ 



896 V0HH081ILB nrnoomm w BOXiosimB. 

HdWIwitica of anniftlM to bt mado to proper parMoar-* 
Unofficial notiileatioii b not binding on Aoao to whom it 
b made, but it pota them on their goaxd according to the 
rdiabflitijr of ita aooree. Where the commencement of an 
armietice ii aet f or a certain date, and acta are done after 
that date in contraTentim of it throng eseaaable lack of 
notice^ no liabflitj to the other belligerent ia incorred for 
them, thoofl^ r e aiituti on mnat be made. 

H XXXIZ. H rmt§ wUh ik$ eamhraeting parHea io mMU, 

hOManU of one hMgwmi BiaU and fkou of Oe (nOimr. 

Hestnl aone fJre«Benl|j caUhHihed in armJgtloaa^Aa at 
readj noticed, the ettaUkhment of a neutral lone between 
the hoatile armiea ia an incident of armitticea as diatin- 
goiahed from anspenaiona of arma in Continental Enrope. 
Where there ii no aneh ettabUahed practice, it ia frequently 
atipolated in the armiatiee. 

H XL. iiap $mom eiolalioii of fk% wrmUHeB hy oa« €f fk% 
parHn ffiiou Oa oikmr fairi§ tta rigki 0/ imMmuing ii, and 
even, la oiMt 0/ wrgemey, of r$eomm«neing koiUUUm tai- 



HXLL AvuMumafih€Unniofik$€trmigiieeh9pnoaU 
penonM acUng tm ikeir awn inUuLHva oalf Miliilw ik$ ta/ufad 
psrif to dnMnd Oe pmrnthment of Ika offmidmt or, '' 
aoty, eompmmtum far Oa loaiaa . 



]iiuxARoooDPAXiov--Bioii»Jumiiimnisionnim^ tMT 



GHAPTEBYIIL 

lOUXAKT OOOUFinOV— UORTi AMD DDTm IS 10 

HXUL T0nilorffUcon$id0r€doccupMwh€mUfMaeimUf 
pfaad wider ike oMariiff ef ike kotltb ormf • 

Tke oecupaUom extende onlf lo lfc« ierriiarf^ wkere muik «► 
likortty koM heem eetahliaked and can he exereied. 

Ooeiq^alioiii mnil be effeettvir— The general prineiple it 
dear. Oeeapation ezkts only where the avthoritijr of the 
invading belligerent ean be effeetiTdy ezereiaed. There m 
no goch thing aa oceiqMttion by prodamataon. On thk 
there la no diaagreement 

How far ooenpaAioin la aaalogooa to Woflinide.r-Te what 
extent^ howeTer, oeeupation need be evideneed by TkiUe 
aigna k a harder queation and one that haa given riae to 
mueh diaeoaaion. At Bnuaela, Oen. yoigta-Bheta» the Ger- 
man delegate, while agreeing with the reat of the Confer- 
ence on the neeenity of the effeetiveneaa of oceiqiation, es> 
preaaed* aa haa been seen, a atrong diaapproyal oi an analogy 
being drawn between oeeapation and blockade.^ There 
most be large areaa where^ although the oeeapying army 
may make itadf f dt in ease of need, it doea not Imp troopa 
permanently atationed. Such ia the reeolt of all mOitaiy 
ezperienee. Cd. Hammer, the Swiss ddegate, replied that 
in eaeh diatriet ooenpied, there dionld be aome &et whidi 
ean be aeised npon by the. inhabitanta to Indieate the aa> 
thority daimed by the enemy. "One man, provided he 
be respeeted, a post or tdegraph oAee^ a Commiadon ef 
any kind estabUshed in the diatriet and per for ming ita fiin»* 
tiona without oppodtion, would auflke.'* ' 

AppBcation of rule that ooeupallon nrasl be effeettfe % 
matter f or eadi bdligeranl— >Th]s suggestion waa not really 
antagonistie to the viewa of Gen. Yoigta-Bhets, who waa 
evidently defending flying eolumna from the attadm whM 
had been made on them, but he did not aee fit' to adopt it^ 
and the Conference findly avoided the point by adopting 



aPMloeol 10 d Ite OnmmHtf% Mqra, |^ IOC 
aJML . 



a different phraseologsr. The force of CoL Hammer^ gag- 
geetion can not be questioned, but it wonld seem best to 
deal with the matter hy national lawi rather than to in- 
corporate it in an international code. The neceatity of ef« 
f ectivenefla being established in principle, it is fortunate 
that the details of its exeeotion have been left to the bel- 
ligerents thensdves. 

Beginning and end of oponpatlon. Te m porarily soooess- 
fid uprisings*— The accepted criterion of the commence- 
ment of occupation exists in the cessation of local resist- 
ance. The criterion of its termination, however, is subject 
to more doubt Bolin-Jaequemyns has suggested, and his 
suggestion is embodied in the BVench ManuaJ, that occupa- 
tion may be said to exist so long aa the belligerent to which 
the territory belongs is unable to exercise his authority 
there puUidy.* The conclusion drawn from this in the 
Manual is that a rebdlion momentarily triumphant is not 
sufficient to interrupt oecupation and to free the inhabitants 
tram the obedience due the oecupant* While this is true 
to the extent that a reasonable time must be given to mp^ 
press insurrection, before the occupation can be said to 
have ceased, still the general principle would seem directly 
contrary to the principle adopted at The Qague, that occu- 
pation must be effectiTe. The auUiority of the enemy ia 
based on his actual power. If that ceases, it would seem 
that hia authority sho ceases and that that of soTerdgn 
reverts. In other words, if the power of the occupant is 
effectiTeiy displaced for the time being, that fact in itaelf 
shows that his occupation haa eeased, and that the displaced 
occiqMmt haa henceforth over the inhabitanta only the righta 
he would haye in unoccupied territory. 

H ZLIIL Tk9 auOkarUif of ik$ UffiUmaU pommr laving m 
fad poBHd ndo Oka %ani$ if ike oceapanl. Oka laiUr Adl Uka 
an lis meaauru ta hia powar io rutara and ofmara, aa far aa 
poaaibU, pabUe ardor and aafatg, wkQe re$pectmg unleaa ahao^ 
hddy prevaniad, ike lama in farea in ika ooiwlfy. 

Authority to gufern occupied territory p asses temporarflly 
to the ooeupant— The principle of this article is that there 
cannot be two goTeming authorities in the same territory 
at the same time. There should be some authority, for with- 



• StnN d« Brail TnlfffMttn— V 7, f. \ 



oat it law would be disregarded and the eomplez aocial 
and Imainefli life of today paralyied. Bnt territorial aa* 
thoritj ean amount to little without the power to nako 
itself respeeted, and this power for the time being ensta 
on]/ in the oeeupant Theref ore^ this anthoritgr, that is^ 
the anthoritj to exeeote the law and to enaet sueh laws aa 
are neeessary for the temporary needs of the oeeuined ter- 
ritory, passes to the oeeupant and the authority of the legit- 
imate sovereign to do these things is for the time soqiended.* 
This authority to goTem, however, is not soTereignty. That 
ezisti still in the legitimate power tiU it is transferred hj 
treaty or lost by eonquest, and till then the nationality 
of the inhabitants and of the territory remains unehanged. 

Personal autfaerily over its eMisBs stm ooutlnues.tn Ika 
legitfanate powers— But» iriiile the tsrritorial authority of 
the legitimate power is for the time suspended, its personal 
authority over its subjeets still eontinues. Its territorial 
legislation, sueh as tariit laws or administrative regula- 
tions, may be suspended in the oeeupied territoiy, but this 
does not d^nrive it of its authority over its subjeets, wbaA 
exists the world over. As long aa ita personal legislation 
does not amount to an attempt to govern the oeen^ed ter- 
ritory, but is really directed at the personal aetions of its 
subjeets, it is wi^in the authority of the aoverdgn and 
binding on the subjeets. The legitimate power may esU 
on its subjeets to enlist in its armies; it may forbid them 
to aerve mder the enemy; and it may even ineite them to 
insurrection. 

Duly to preserve pnblio life and soelal order fdls efi 
oocupantr— The substitution of the oeeupant for the legiti- 
mate power aa the territorial authori^, throws on it the 
duty of insuring to the inhabitants aa far aa possible i 
dom from dis(»rder and protection to their pers9ns and 
property. Some continental writers are indined to'imply 
from this duty on the part of the oeeupant a reciprocal 
obligation on the part of the inhabitants so broad aa to 
render them practically priaoners on parole. Certain Bng^ 
lish writers, on the other hand, see in it aa obligstion in- 
eurred in the pursuit of the oceupantli own ende, aa ob> 
ligation which the inhabitants would only too |^ad|y have 
avoided and which does not deprive thcdn of aqy ri|^ 



f 



SOO muTAR ooooFisnnr. 

of reaittanee against tlia enemx wUeh th^ had pnrwimm 
to tho oeeopatim. 

ChndHotiQg irlaivi aa to Ite dv^ of the taAaUtaato 
tho ooonpant— Then would appear to be a large meaaore 
of truth in both theae viewa, eontradietozy aa thegr are at 
■ome points. Inaofar aa the oeeapant aeta aa the terri* 
torial authority for the pnrpoae of inaoring order and ex« 
eeating the lawa, and not for hk own immediate belligerent 
pnrpoaea, it would appear to be inconteatable that the in* 
habitant doea owe him obedienee. It would be a hard rule 
plaeing on him the burden of punishing ordinaiy erime or 
of earrying out sueh meaaurea aa thoae of aanitation, if the 
inhabitanta were not to be under any obligation to aanat 
him in them or to render him the obodienee due with re- 
gard to sueh things from erery inhabitant to the govern- 
ment under whieh ho liTea. 

Duty of obedienoe owed him only whUa be Is tqtag to 
presenro pubUo life and aoeial eriar. 80 long, then, aa 
the oeeupant ia aetin^ aa the territorial authority in eai^ 
rying out the ordinary pnrpoaea of goTemment, and not 
fw Ua own belligerent purposes, the inhabitanta owe him 
obedienee; but, when he goea further and takea meaaurea 
whieh are for hia own bdligerenf purpoaea, it would aeem 
that the inhabitanta fkr from owing him obedienee^ may 
atill look uptm him aa the enemy of the government to wiu<^ 
th^ owe allegianee, and, so fkr aa hk orders are hostile 
to that government, may disregard them aa £sr aa they ean 
reasonably do so. Where eertain aets are in themaelTca 
offenses against the laws of war, the inhabitanta are bound 
to abatain from them, but thk ia not beeauae of obedienee 
due to the oeeupant but of respeet due to the laws of war. 

Otfll and penal laws not to be ehanged^— Unless abao- 
lutely prevented, tho oeeupant must respeet the laws bi 
force in the eountry. CSvil and penal lawa ahould remain 
untouched, while political and administrative laws should 
be modified only so fkr aa ehangea are imperative. Laws 
of reeruitment are necessarily suspended, aa part of the 
law of the territory occupied, and fiscal laws, auch aa those 
of taxation and of administrative organisation, are liable 
to be suspended aa a matter of ft^t by the ilii^t of the 
oflldala, who alone are familiar with them. Constitirtional 



XAIfUL I^W. Ml 

jirhflegM, nidi aa the freedom of the pran, the ri^ of 
aaMmbly, tlie riji^t to bear anna, and the right of solEratab 
are uiiaUy aoapended, aa ordinarily in eaae of martial law. 

Ooenpanl maj make provlaioiial r^gidattona for benaill 
of ooonpfed terrltOKy^— The oecnpant may enaet aneh pn^ 
riaional regulatioDa aa the raBpenaion of the leptimate an^ 
thority, hiB own welfare and the good of the territory render 
neeeaaaxy. Be may even go ao far aa to eataUiak pr^ 
▼laional goremmenta, haaed on new ndea of aoflrageb if 
aneh a meaanre will aid him in the aetdement of the war. 
Bnt he must not attempt to ehange the Conatitation of the 
country, nor do any aet implying a ehange in the 
ality €d[ the people or of the territory. 

Ibrtiallaw. Hotioe to the inhaWtantar-^One of the \ 
important of the righta of the oeeapant la the 
of martial law. Thia right apringa from the oecnpation iU 
adf, without notice; but ^'it ia the duty of the oeenpying 
military authority to inform the inhabitanta at the eailicet 
praetieaUe moment of the powers that he earareiaea aa well 
aa to define the Umita of the oeel^>ied territory.'** During 
the F^aneo-P^oaaian War theae notieea were afSzed in eaeh 
canton, about 72 wqjaait milea in extent, and took effect 
immediately thronghont the canton.* 

Offenaea ariaing firam nonoembatasl eharaoter of 
era^— Perhapa the moat important daaa of offe 
martial law ia that ariaing from the ncmbdligerent dai^ 
aeter of the offendera. The amaUer powera at BrnwalB 
were unwilling to admit that there might not be acta of 
individnal hoatility, each aa the blowing np of a bridge^ 
which wonld be legal if done in nnoeenpied territory in Ae 
fkee of an advancing army,* althoni^ thoae mendMm eC 
the Inatitnte of International Law who afterwarda eondd- 
ered thia point, were of opinion that fliere were not;* bat 
even the amaller powera aeemed to fed no hentancy Cn re^ 
ogniaing the illegality of each a^ in occupied ter rito ry. 
Such acta in nnoeenpied territory haye been of audi rare 
occnrrenee, however, that no naage haa grown np with r^ 
gard to them. In occiqiied territory, on the ottier hand. 



«noiftaaafik«(kfeid^ 

•Han, late. law, ^ aOQl 
• Pratoeol 14 of tlM OoflUBlnM^ 
vBmN a« Dnit laUr^ 7, pfu lec^ 



th^ liava bean ao tre^ent that thair fllagalitj haa baaii ao 
firmly aataUiahad aa not to ba quaatioiiad. If a diatina- 
tion ahould ba drawn in f aTor of aaeh aeta in nnoeeapiad 
territory, it might ba made on the ground that there the 
natkoial law ia atDl in foil Tigor, ao that ita reatraining 
f oree ia anffldent, without making an aet of thia kind an 
olfenae againat the law of war. In oeenpied territory, re- 
ipeet tat the ordinary law ia ao apt to be ahaken that, nn- 
leaa acta of thia Ipnd are made abaolntely condenuiaUe 1^ 
the law of war itaelf , there ia Ukdy to be no anffleient goarw 
antee againat them. 

Dvty to reapeet the law of war.— The dnty to abatain 
from aoeh aeta doea not ariae therefore from a duly of 
obedienee to the oeenpant, bnt from the obligation to re- 
apeet the law of war, whidi ia not on^ a part of Interna- 
tional Law, but a part of the national law of the eoontry 
whoae territory ia oeenpied, provided that eoontry ia itaelf 
within the pale of International Law. The lawa of war 
forbid it, beeanae of the naeleaa diaorder and loaa of life 
and proper^ whieh diaobedienee entaOa. 

Aeta of vidlanoe^-Notable among the acts of riolenee 
thna prohibited are the killing, wonnding or robbing of 
troopa of the enemy or their aoito; destroying bridgea, 
eanala, telegraph linea and railroada; rendering rontaa im- 
paaaable, and boming the mnnitiona of war or the pro- 
riaiona of the enemy or the qoartera of hia troopa. The 
e(»isii8Bion of aaeh acts 1^ nonbelligerenta ia mneh more 
likely to reaolt in the injnry of the inhabitanti than in that 
of the enemy. If th^ beoome prevalent, the orderly life 
of the commnnity ia at an end, and brigandage and law* 

Vnapeoaaafol nprialnga in oeenpied territory.— Una mi c caa 
fol npriainga of the popolationa ni oeeni^ed territory dionld, 
it would aeem, be plaeed in the aame eategory. Saeeeaajna- 
tifiea aaeh npriainga and ahowa that the alleged oeea])ation 
waa not real; bnt the miaeriea likdy to be riaited on all the 
inhabitanta in the attempt to pnt down the npriaingi make 
them meaanrea to be dinnned, nnleaa the ehaneea of aaeeeaa 
are good. 

A0t% not Tlelatimia of the Uw of war, but prohfUled by 
Ika bdligarant beeanae tnjnrlona to Um^— Beaidea aeta of 
Tidenee whieh are contrary to the lawa of war irreapaettva 



XAltUL IMt. MS 

at the militftiy regnUtioiii of tlie oeeapuit» there are othera 
whieh may be prohibited by him beeanse of the aniataiiee 
th^ render the enemy or beeanae of thnr danger to hfanaell 
Sneh meaanrea, taken for hia own aeeoritj, the inhabitanta 
are nnder no dntj to obey, bnt he may enf oree them by 
aaeh penaltiea aa are not eontrary to the lawa of irar. Acta 
of thia kind are apying againat the oeeapant, giving infor- 
mation to the legitimate power obtained in other waya than 
by Blaring, the miagoiding of the oeeapaut'a troc^ie, the re- 
fnaal to deliver vp arma or other mnnitiona of war, leaving 
the eoontry without the authority of the oeeiq>ant» and en- 
roiling in the armed f oreea of the legitimate power. 

Delivery np of anna^--Dnring the IVaneo4tarman War the 
inhabitanta of oeeapied territory were reqinired to deliver 
up armay at fiiat nnder penalty of five yean' impriaonment 
in Ckrmany, or an equivalent fine, but later the mere poa- 
aemion of arma or munitiona, without apeeial eirenmataneea 
to overcome the preaumption of a hoatfle p u r poee, waa do> 
elared to render the poeaenor guQty of treaaon againat tiie 
German troopa, the penalty f w whieh waa death.* 

Qerman aetton to prevent the InhaMtanta off leRiloiy oo- 
enpfed by them JofailiKg the Ttendi anny^— The early ef* 
f orta of the Geiman authoritiea to atop reeruiting were 
directed merely againat the eivl fimeti<»ariea engaged in 
it Later, the mayora were required to prepare liata of thboo 
liable to aerve in the French army, and the fimiliea of 
thoae whoee abaenee could not be ezi^ained were fined fifty 
franca for each abeent individual and for eadk day of ab- 
aenee. Stfll later, in Alaaee and Lorraane^ it waa dedared 
that «|^t daya' abaenee from home without tho pre v i ooa 
permioion of the prefect ahoold pve riae to the legal pr»> 
aumption of having jcnned the French army, and that the 
offender ahould be puniahcd by the eonfiantiott of all hie 
gooda preaent and fbture and baniebment for ten </eara.* 
Thia declaration, however, waa made late in the war, and 
ia aaid to have been applied, in Alaaee at leaat, only five 
thnea.** Ita proviaiona warrant detafled examination. 

Ho rt|^ to prndah thoae who had auooeeded In doing aa 
—The right to puniih the inhabitanta of oeeupied territory 



• Bnj, Oomputkm IfQHeii^ pp. lat-lNL / 

•ntf.,]ipua8a487. 

Bnrnt de Dioit iBUmtloML i^ fw 



MM muTAR oocmxmr. 

for leaTing the Unitorj and joining tht foreei of tlie bgit- 
imate power ia nndoabted, but H waa with, great foroa 
claimed 1^ BoUn-Jaeqaemyna tliat the prineiple applied to 
blockade numera, namdj, that if the attempt to run the 
blockade ia aneceiafiil, the oflenae ia wiped oat, ahonld be 
applied here alao.*^ The inhabitanta of the oeenpied tei^ 
ritory are under no dntj not to leaye the oeenpied territory 
and join the f oreea of their eonntryy but rather to the eon- 
trarj, and if th^ are willing to nm the ehaneea of being 
eanght in the act and anflering therefor, it woold aeem 
onlj proper that, aa in the caae of the priaoner of war who 
haa made hie escape, th^ ahonld be relieved from forther 
liabilitj to puniahmeot. The right to pnniah ia baaed on 
the power to prevent the doing of the act, and if that power 
proves to be lacking the right to pnnish eeaaea. Thia being 
so, the ponishment of the families of thoae who haye ea- 
eaped ii especiallj improper. 

Aasistanoe of local oiBoiab dundd not be reqpdred to pre> 
▼enl Bodi aeta^— Another criticism of the proclamation of 
the German anthorities ia that th^ went beyond their legal 
powera in requiring the local offieiala to make lists of those 
liable to militaiy acrvice in France. Th^ had a right to 
require the cooperation of the local anthorities in wap^ 
pressing offenses against the laws of war sneh aa the acts 
of yiolence which haye heretofore been noticed, but when 
th^ went farther and required the cooperation of the oflU 
cials in measorea hostile to their own goyerment, th^ were 
doing yidence to the m6st laudable feelings of patriotism, 
and it ia conceiyed that like action in the future will be 
preyented hy the spirit if not letter of H XIIV. 

Penalties of martial law«— The penalties of martial law 
to be effectiye must be prompt and seyercL Passions run 
hifl^ respect for law ii impaired and the fote of the nation, 
perhapa, ia at stake. Bxample ahonld be made' of offendera 
suflBdent to deter others from beooming offenders alao. But 
in doing this it is extremdj necessary to take care that tiie 
measorea do not defeat the yery ends for which they are 
deaigned. The conilscation and burning 'of property ia a 
caae in point There may be times when such measures are 
justifiable and ezpedient, but they are yery rare. If the 
nanco-Oerman War and the War in South AfHea haye 

ds Drak ]ki«^, t; pfu sir-iie. 



■howB anytUiiff, the/ bsTa diowii thk. Tnflfated, m nidi 
inmiilimeiits- generally are, beeawe the offender himMit 
eannot be gotten at, tliey strike at pereons often entirely 
free £rom blame and tnm into frenaed aposQei of hate and 
revenge thoee who haye been driven to desperation hf the 
loee of everything th^ poeewi. y^ 

Ihe nie of hoetagee om trains^— A preventative mesaore 
that has mneh to eommend it when properly need is that 
of placing notable eitiiena on trains to prevent iajoiy to 
them. As a protection against the acta of belligerent forces 
this would, of course, be improper, as snch acts would be 
perfectly lawful acts of war; but, as a protection against 
purely lawless acts in occnpied territory, the mesaore is one 
to be commended for the dight suffering it entaila and for 
ita affecttveneaa. 

Importaaoe off Ike earaftd atu^y of the penaltlea of naiu 
tial laWtf— At the Brussels Ck>nference it waa urged that 
an international agreement be entered into fixing penaltiea 
for infraetiona of the laws of war. Thia ia not likdy to be 
brought about, aa the smaller powers have shown the»> 
selves opposed to recognising the legality of the ezeroiBe 
of penal power by a belligerent; but it ia very derirahle 
that a more careful atndy ahould be made of penaltiea in 
order that a rtiaTimum of prevention be aecured with a min^ 
mum of auffering. The German militaiy penal code of June 
22, 1872^ waa a atcp in the ri^t direction. One of ita 
beneficent proviaiona waa the requirement of trial before 
puniahment in every caae dealt with 1^ it** 

Xnnoeent partlea ahould not be hdd for the aota of ollian 
where il ia poasible to panidi the offender Umselt— In every 
caae of infraction of the laws of war theutmoat effort ahould 
be made to confine the puniahment therefor to the actual 
offender. The puniahment of an innocent peraon tst the 
offenae of another ia ao diametrically oppoaed to every prin- 
ciple of juatice that aerioua indeed must be the oecaaion that 
warranta it. 

Bepriaahb— The moat noxioua form of thk injuatiee ia 
the practice of repriaala. At timea atatea are ao awayed hf 
the deaire of aueceaa and the paaaiona of confiict aa deU^ 
eratdy to violate the law of war or to ^efnae to puiodUh 
thoee who have committed auch violationa. Thia in no way 

itBevw de Sioli I a t«m tkaM» i^ ^ ML 
20 



8M xiuTAn wxmAxnoM. 

rdeases the other beUiferent from iti obligatioii to reepeet 
the laws of war, and if the offense la aUght, it ia better to 
suffer it to pass than ran the risk of embittering the strag- 
gle; but if the offense is not slight, it may be thought nee- 
cssary to prevent ita recnrrenee hj resorting to meaaorea. 
not ordinarily anthorised by the law of war. Where the 
offense is an individual aet, every effort should first be 
made to punish the offender, and in eaae that ia not possible 
to secure his punishment by the other belligerent. Where 
these efforts have failed, the offended belligerent may, if he 
thinks the facta warrant it, take measures of a nature aimi- 
lar to the acts complained of, provided th^ be of a less 
or equal degree. Measures of a greater degree of severity 
will almost inevitably lead to further meaaures of retalia- 
tion, and once started on this road the war almost certainly 
becomes a succession of outrages and recriminationa. 

Artide off the Brussds Deolarathm on flie oontinnaiiDe 
of dd oflMab in offlee during llm oooiipatkm^-—Artide ZI^ 
was followed in the Brussds Dedaration by the following 
artidei 

'^The functionaries and oflleiala of every dasa wbo^ at the 
instance of the occupier consent to continue to perform their 
duties, shall be under his protection. Th^ shall not be 
dismissed at be liable to summary punishment unless th^ 
fail in folfllling the obligationa th^ have undertaken, and 
shaU be handed over to justice only if th^ vidate those 
obligationa by unfaithfolness." 

PMltion of the Bdglaa and Dutdi ddegalea at Ihe 
Hague^— This dause was dropped at The Hague because of 
the opposition of the ddegates fran Bdgium and The 
NeUierlanda, who feared it might be hdd to imply an aifr> 
thorisation to the offidds in the occupied territory to enter 
the service of the enemy.** This would be especially im- 
portant in The Netherlanda, where those in diarge of the 
dikes have a spedd technicd knowledge which would be 
of great vdue to an enemy, if placed at hia service. It is 
hard to see, however, that any such implication codd be 
made from this provinon, and, aa it eontaina important 
prindples, it is unfortunate that it was abandoned. 

mOk territorid authority goea authority over territorial 
oilHdals.r--Authority to govern territory must indude aa- 

ufiMlheftportaflL] 



TSttnoKULomoiiUL SM 



thority over the offldals througli wIiobi U » goTomed, tad 
aa the general anthoritar paaaea to the oeeapant for tlie 
period €t the oeeapation, ao the anthoritgr over the oflleiala 
'paaaea to him, and aa long aa thej hold their poaitiona it 
la their dntgr to perform the fimetiona of their offiee under 
the direetion of the oeenpant with the aame degree of £alth> 
folneaa aa under their own gOTemment 

Oflldala maj re8ign«-— But it ia not neceaaazy for them to 
continue to hold theor poaitiona. Th^ are entitled to re- 
sign, and are under obligation to do ao if they fed that the 
eontinuanee of their fonetiona ia jnconaktent with their dntj 
to their own eountry, or if it ia forbidden by the govern- 
ment of theor own eountry. Aa anbjecta of that govern* . 
menty they atiU owe obedience to ita eommanda, althouf^ 
aa offieiala th^ are no longer under ita immediate direetlcB. 

PdUtloal i^iM^^^* neoeaaarOy iHif ffn tf " M i^ tlieir ftmoHoBa* 
—Whether eontinuanee in office ii permiaaible dependa 
largdy on the nature of the office. Ck>ntinental writera 
make a diitinetion between political and civil officeziy eon- 
fining the former to the repreaentativea of the cmitral gov* 
emment in the varioua diafaricta and the latter to the repre- 
aentativea of the varioua adminirtrative departmenta. The 
aetiona of political officen are largely influenced by the 
political party which happena to be in power, and they are 
largely entrusted with carrying out the political meaaurea 
of the adminiatration; while the civil oUcen are concerned 
mainly with affairs which are not the anbjecta of political 
controverqr and continue in office from administration to 
adminiatration. The former have large military and police 
powera, and it would obviooaly be equivalent to entering 
into the aervice of the enemy to remain in auch office under 
hia direction. In the United Statea auch officera would in- 
clude govemora of atates and all offieiala under tllem ex* 
ereiaing any militaiy authority. Such officers, aa weD aa 
thoae directly in the military, naval or diplomatic aervice^ 
holding office in the occupied terr ito ry , are under oUi- 
gationa to withdraw from their poaitiona for the period of 
the occupation. 

Local offieiala under a dniy not lo^-On the other hand, 
it ia generally conaidered that local offieiala are under an 
obligation to remain at their posta. Especially in the large 
citiea the fimetiona of the local government enter ao vitally 



806 . lauTAiT ocouFinotf • 



into averydaj aihin that their eeaaation ayen for a daj 
would aerioiuly erippla the lifa of the conmraiiitj and ra- 
solt in erima and diaorder. It ia in the intereat of the in- 
habitanta that theae officiala remain, ao that in no aenae ean' 
it be aaid that the/ enter the aernee of the enemy. It ia 
tme that in the eoUeetion of eontribntiona and reqniaitioiia 
th^ are of aid to the enemy, bnt the aid to the enemy ia 
alight aa compared with the anffering and loaa that ia apared 
the inhabitanta. 

Tax oflWala^-'Many of the reaaona for local officiala re- 
maining in office are folly applicable to tax officiala. The 
local officiala aerve aa a buffer between the oecnpying army 
and the inhabitanta in the impoaition <A eontribntiona and 
regniaitiona, and it ia poaaibla for the tax officiala to dia> 
charge a aimilar function in the collection of the regular 
taxca. The oecnpant ia entitied to thcae, but if the tax of • 
itciala IcaTC their jxMti it ia impoadble for him to collect 
them from aheer ignorance of the tax Uwa, if nothing dae^ 
ao that he will be compelled to collect their equivalent 
through contnbutiona, whoae burden ia aure to be much 
heavier than that of the regular taxca. NcTerthdeaa, aa 
the proceeda of the taxca go to the oecupant for hia own 
purpoaca, after payment of the expenaea of adminiatration, 
tax officiala are Ukely to feel that by remaining in office th^ 
Nrill contribute too directly to filling the coffera of the enemy 
and thua do abmething inconaiatent with their duty to thdr 
country. Experience haa ahown thia to be uaually the caae, 
aince, aa a matter of fact, tax officiala appear to have almoat 
invariably left their posta on occupation by the enemy. 

Toraat offiirlala. — Officiala in charge of the private domaina 
of the atate^ auch aa the f oreata, are in aomewhat the aame 
poaition aa the tax officiala, aa the private domaina are ua- 
ually aourcca of revenue; but the reaaona for their remain- 
ing at their poata are greater, aince, no matter how careful 
the occupant may be in the adminiatration of the f oreata, 
th^ are liable to auffer aome damage from the change in 
adminiatration. 

Poatalp railroad and tdegnq^ offleiala^— Poatal officiala 
and officiala in the railroad or telegraph aervice^ and it 
would appear to be immaterial whether theae are under 
the government or not, are almoat neeeaaarily called iqpon 
to diacontinue their functiona, ainee^ if they renmin, the 



xnuTOUALOfnouu. 9M 

chaaeai are that thcj will be required to take an active 
part in transmitting the eorreapondenee^ aappUea and forces 
of the enemy. 

Those in chaige of mnseiim% etc, shodd remataLr-Polit- 
ical» tax, postal and railroad officials will therefore nsaaOy 
qnit their positi^ms, trhile local officials and those in other 
departments should retain theirs unless ordered to the eon- 
trarj. Eqwdally is this tme of those in charge of mnse- 
nmsy art galleries, palaces, archiTCS and sdentifle works. 
Their remaining will be of no special service to the enengTf 
while their leaving may mean the destmetion of the tr ess 
ores committed to their care. Wherever the eonrts of jus- 
tice can readily continue thdr functions, it is their duty 
to do so also^ and police magistrates and ofllcials are under 
special obligations to remain at a time when lawlemess 
is likdy to be rampant. 

An oalh off flddtty may be required of oOeiabL— Funo- 
tionaries who remain in office may be required to take an 
oath to perform their duties faithfully and to refrain from 
using their official powers in hostility to the oeeupaat 
Great care must be taken in the wording of this oath 
not to include in it anything inconsistent with the allegi- 
ance of the offldals or implying that they haye entered into 
the service of the enemy. Even when no oath has been 
given, fidUifulness in the performance of duties and neu- 
trality of official conduct are a condition of the retentioii 
of office. It is to be noticed that in the Brussels ArtieK 
failure to perform duty aubjects the official only to dis- 
ciplinary punishment while betrayal of trust renders Um 
liable to punishment under the penal code. 

OoenpanI must not demand of flie olBeials who rsmaln 
duties oentraxy to their all^glanoe^— Over those who xo> 
main in office the occupant has the rii^t of diredEibn, sus- 
pension and dismissaL He .may make such orders as he 
deems necessary for the temporary administration of the 
territory, and may impose new duties on the oflldsls, pro- 
vided such duties be not hostile to their goTemmenl • Thus 
he may require of the local officials the coUeetion of con- 
tributions and requisitions, and the punishment of offeoses 
against the laws of war; but he has no ri|^t to demand 
that th^ co<^>erate in measures such aa the punishment 
of those leaving the occupied teiritozy to join the foiees 



810 lauTAXT oocuPAfioir. 

of their eoantry, rinoe aeta of thk kind are not eontrary 
to the laws of war, and the measnres taken for their pr^* 
vention are meaanres directly hostile to the eoontiy to 
whilsh the oiBeiala still owe thdr allegianee. 

H XUy. A heUigeremi w farUddm io fwrf Oka MaK- 
ianU 0/ ferrHarjf occupied if U io fumiih imformaiion aboui 
ike army of ike oiker hMigeremi, or doui U§ meane of do^ 
fence. 

OompelTIng Iha liationala of flia anamgr to serve as guides. 
— ^Prior to the adoption of thia article, the right to compel 
a national of the hostile belligerent to serve aa guide was 
a mnch debated one in jnristie circles, but it was one that 
goTemmenta seemed loath to forego. The guide waa in 
an exeeedinfl^ difficult position, but it was generally hdd 
that if he acted under compulsion he waa not guHtj of 
treason to his own country. This article forbids compiling 
inhabitanta to act aa guides when to do so would be most 
dangerous to the inhabitant's country and consequently 
most revolting to his sense of patriotism. By a liberal con- 
struction it may be held to forbid cTciy compulsion to 
act aa guide for any ignorance of the country on the part 
of one belligerent may be considered a *'meana of defense" 
. to the hostile belligerent. The spirit of the artide may 
also be held to forbid requiring of local offlciala the names 
of the inhabitanta of occupied territory capable of aervice 
in the army with a view to their punidmient if they leave 
the occupied territory to eulist in their country^ service. 

H XLY. li ie forbidden io eompd ike inhdMonie of oecm- 
pied ieniiorif io ewear aUegiance io ike koeiOe Power. 

Ho oath off allegfance to flia ooeupant is to be roqolbtoiLr^ 
As we have seen, this does not prevent the requirement 
of an oath of fiddity from those who continue in oflee. 

H XLVL FamHf konour and rigkie, ike Uoee of pereone, 
and private properijf, ae wed ae reUgioue ooncicHone and pra^ 
OcemuHhereepetML 

Private properig eannoi he oonfMoated. 

ftenily life dioald be interfered with aa litOa aa possUa. 
— SVunily honor and righta are not considered to be vio*. 
lated by requiring the quartering or feeding of troope; nor 
by the search for requintioned artidea, where forced mili- 
tary execution haa become necesssry; nor by the use of 
a house for military operations, where audi use is 



8U 

my. But meh incidents are among the moat annoying of 
war on aecoont of their interference with family life. Ao- 
cordinfl^ th^ are to be avoided, if poanUe, and where 
th^ cannot be avoided are to be rendered aa little irkaomo 
aa poanble. 

CRrarehea nol neoenarOy free tram rt|^ of raqnialtkB. 
^-Liberty of public worship doca not mean that chnrchea 
or other ecdeaiaatical eatabliehmenta are neceauurily ex- 
empt from the right of reqniaition. Gen. Yoigta-Bhets at 
the Bnusela Ck>nf ereniBC, declared that quartering troops 
in churchea, and the taldng of what may be necessary for 
the subsistence of the army from ecdeaiaatical eatabliah- 
ment8p could neither in winter or in caae of scarcity of pio- 
▼isionSy be given up.** 

H XLVIL PUIagB i$ farmdajf farVdim. 

Absence of prcqinrietors not to be oonsidiired abandoomsnl 
off property.— Pillage haa generally been forbidden except 
where towns have been taken by assault^ ever aince the 
practice of eontributiona went into effect Dwdlinga from 
which the inhabitanta are abaent cannot be conaidered aa 
abandoned, so that there ia no greater right against the 
proper^ found in them than against that found in other 
dwellings. The owners, however, are liable to suffer more 
heavily than othera, aince, by reason of their abaenee^ the 
requisition must be executed militarily, and their presence 
is wanting to reatrain unlawfol acta on the part of the 
soldiery. 

i«PntoMllSafth«( 



81S mUTAXT OOCCUXKW. 



GHAFTBB TT^ 

XniXAXT OOCOMTIOir— SI0HT8 AMD DOm 18 10 

H XLYHL If, til fk€ Urriiorf occupied, fhc occupmU eel- 
hdi ihc Uxm, dum and idU impoged for iko hm^ of iko 
BioU, ho Aaa do §o, a$ far a$ u posiibU, in aecordaneo wiik 
ike ndeo of aatesameni and inddenco in force, and ehoM m eon* 
ee^uenee he hound to defray ike expeneee of ike admuMmKom 
of ike occupied territory to ike eame exleni ae ike hgiiimaie 

Tbn oeeapoat ham aoriglit toloeal and provtaioial tem. 
»-Tlie limhatioii that only those taxei may be eoUeeted by 
the oeeapant whieh are for the benefit of the State was 
aiiggested by Count Lamn, the Italian delegate^ in order to 
exempt keal and provineial taxea from the power of the 
oeenpant.^ This exemption is based on the assomption that 
military affairs are entirely the eoncem of the eentral goT- 
emmenty and that aceordinfl^ only tl^ise taxes whieh would 
hsTe gone to the eentral goTemment ean be eoDeeted by 
the oeci^iant. In federal governments like the United 
States, where the States make large military expenditures, 
it is probable that the SUte taxes woold be assimilated to 
taxes due the eentral goremment rather than to keal and 
proTineial taxea. 

Bides of tnddence and oolleetkm of taxes in f oros^ to bo 
followed, if possUe^— The mle that the existing tax laws 
shall be f oUowed aa f ar aa possible in the ssiisiimiiit and 
eoUeetion of taxes is an instanee of the more general nde 
tha) tiie laws in force in the eonntry shall be respected 
unless the occupant is absolvtely prevented from doing so. 
It is the doty which he is under to provide for the adminis- 
tration of the territory that entitles him to the taxes. Other- 
wise he woold be entitled only to the surplus after the ad- 
minirtration had been provided f6r. 

nds generally prevented l^f withdrawal of tax oflUals^* 
As has heretofore been pointed out, however, the desertion 
of their posts by the tax officials is likely to render the os» 

lOcfIhe 



818 

fatinf lawi lUMiifereeftbla ud in that eaaa fciort will 1m 
liad to eontribationii whieh ean be onlj a ron^ 9qjaMbuA 
totke tUM. 

PnetiM in tha naBoo4l«nDttii War^--4aeh was the 4 
of ercnta in the Franeo-Oeraiaa War. Atfinttlia< 
attemptad to eoUeet the tazea aeooiding to the Freneh Law, 
bat this pioTed to be imponible aren in tiia eaaa of the in- 
direet tax, whieh they ■ometimea approzimated by taking 
aa a bans the indireet taxes for the two preeeding yean» 
aoinetimes by ezaeting from 100 percent to 200 percent of 
the direct tax, and in other eases by exacting a himp som 
of from twenty-flve to fifty francs per head.' 

Methods of enf eieing ceDeetlott^— In few eaacs» if any, 
were the taxes levied directly on indiTidnals. The mayor 
of the chief city of a department, arrondissement, or can- 
ton, was required to reapportion the tax among the eom- 
mnnes and inhabitants. An ordinance of the GoTenor-Oen- 
eral of Bhdms of Febmaiy 5, is typieal of the means need 
to seeore the prompt psyment of the tax. Dilatoiy eom- 
mnnes were threatened with a fine of 5 percent of the 
amount due for each day of dday, and told that at the end 
of eii^t days troops would be quartered .on them, which 
they would be re<iuired to lodge and nourish without psy, 
besides paying six francs daily to each dBcer and two franes 
to each soldier, till the amount due had been entirely dis> 
charged. Ptominent citisens had already been taJEen as 
hostagea for the payment of these debts, and six dsys later 
the GoTcmor-General issued another ordinance warning the 
inhabitants that, if the taxes were not paid in eight days, 
the hostagea would be sent to Gfermany and further i 
taken against the dilatoiy communes.' 

Xn^ortanoe of eotttribntloBs Imposed in Ham of 
The importance of thcae contribntiona impoaed in lien of 
taxea ia ahown by the fact that comparatiTe catimatea of 
thoae impoaed during the Franco-Oerman War, placed them 
at from 49 to 02 milliona of franca, aa against from 80 to 
89 milliona of franca exacted aa war contribntiona and Unea.* 

Oradtt givan by the Ftendi .OoTeramenl for paymanl of 
taxaa to Geiman avthocttiaa^— After peace was established. 

•Bnj.pwaoa. 
■Bnj.pwaai. 
4Bny,^aol; 



314 JflUtAIT OCCUPATIOir. 

tlie Freneh GoTenimeiit dedand that eommimet which had 
been eompelled to tnni over money in their treasnriee to 
the Gfennan anthorities ihonld be reimbnned, and that in- 
diYiduals who oonld ehow proper evidenee of having been 
eompeUed to paj tazee to the Gfermans ahonld be aUowed 
to dednet the amonnt paid from the eontribntions for 187(V 
1871y a rcdnetion being allowed of the amonnt of the direct 
tazy to the extent aetnallj paid, and of double the amonnt 
of the direct tax on account of what the Oermana had ex* 
acted aa the equivalent of the indirect tax. Bvefything be- 
yond these amounts was to be considered as war eontribu* 
tions and ruled bj different principlea.* 

HXLIX. If, in addition io ike iasetmmUUmed in ik$ahav§ 
ArKcU, ike oeeupani Imriee oiker numeff eonMbuiione ta Ike 
oeeupied teniiorf, ikie skdU onJff he for ike needs of ike ann§ 
or of ike adminiairaiion of ike ierriiory in ^ueeUon. 

War oontiibuliion8^-43ontributions levied in lieu of taxes 
may not be adequate for the needs of administration, and 
in such a case war contributions proper may* be imposed to 
make up what is lacking. The principal occasion for war 
contributions, however, will always be, the needs of the 
army. How these are to be met without imposing too great 
a burden on the inhabitants was the subject of earnest de- 
bate at Brussels and The Hague. 

limitation of War eontribntions in original Busslaa Piro- 
Jeet at Brussels.— The original Russian Ptoject at Brussels 
was in line with the general principle eventually laid down 
in Article XLUI that the laws in force in the occupied ter- 
ritory shall be respected by the occupant. It provided that 
the anny of occupation should have the same rights in levy* 
ing war contributions as the anny of the country whose 
territory was occupied, would have had. It was objected 
that there mi|^t be no laws providing for contributions and 
requisitions in the country whose territory was occupied; 
or that the country might be one liable to invasion and 
have laws that would render the ri|^t of the occupant, to 
contributions nugatory; and Anally, that this rule left out 
of consideration the needs of t|^e anny on which the ri|^t 
was chieQy based. 

proposition to eonflne tbm to what the ocei^ylng anqr 
would have a rl|^ to in its own oonntiyr-Qn the other 



815 

hand, it was proposed that the lawa in f oree in the eonntiy 
of the ocenpying beiligerent ahonld be the onee to be ajp- 
plied in the ocenpied territory, but here again, it was ai^ 
gaed that there might be no saeh laws; that eonstitntional 
restrietioos might prevent them from being enaeted; that 
a eonntrj likely to take the offensiye mii^t enact a law of 
the most extreme eharaeter, and finally that the logical 
basis of war eontribntions, the needs of the army woold be 
ignored by this role also. The truth was that both these 
propositions were artificial and impracticable.* 

Atten^t to lindl them by reqniziiig the reee^^ to bo la- 
demnitiss.— A further attempt to limit eontribntions wss 
inyolved in the proposal to reqnire that the receipt giren 
for them shonld be in the nature of a promise of repayment. 
Hue proposal was rejected, and the only limitation finally 
adopted was that the eontribntions shonld be imposed either 
for the needs of the army or the administration of the tefw 
ritory. While this may seem to be almost no restriction^ 
since in modem wars eontribntions have not nearly reached 
this limit, still it prevents eontribntions from being made 
nse of to enrich the coffeis of the snccesifDl belligerent n 
practice familiar in ancient history and not unknown ia 
more modem times. 

Advantages of paying for provisions^— The desirableness 
of buying provisions in the open market at a ftur price or 
of paying for them when requisitioned is evident at a 
glance. Concealment of proper^ is largely avoided, pro- 
visions are secured with much less friction, business conA- 
tions are not so violently disturbed snd the inhabitants are 
not left penniless. But armies cannot carry sufficient cssh 
with them to pay for what they need, so that, if they pay 
at all, they must very often raise the money by contribu* 
tions. The burden of the mon^ psyment k likely to be 
distributed over a wide area or fdl on those best aUe to 
stand it, while the burden of requisitions in kind is liable 
to fall on agricultural communities who have what is direct* 
ly needed f w the wants of the army, but are much less iJde 
to stand the burden of supporting the army than their rich 
neifl^bours in the cities. 

Advantages of eontribntions.— As General Yoigts-Bhets 
said at Brussels: ''An army arrives at a rich town and 

• Praloeobl^lSoffhe 



816 xiiiTin ooouFATunr. 

demaadi a oertain nmnber of oxen tor its sobakteiiee. Ilio 
town replies that it has none. The army would in that ease 
be eiMBpelled to apply to villafes whieh are frequently poor, 
where it wonld seise what it is in want of. This would he 
a flagrant injnstiee. The poor would psy for the rieh. 
There is, therefore, no other expedient but to admit an 
equivalent in eash. This is likewise the mode whieh the in- 
habitants prefer. .Horeover, it cannot be admitted that a 
town whieh is unable to pay in kind shall be exempted 
from paying in mon^." And again: "An anny arrives 
at nii^t and is to leare the next day. It must be fed; the 
town cannot do this; the oeeupier, with the mon^ irtiieh 
he levies on the spot, will therefore go into the neighboring 
eountry and procure what it is in want of by means of the 
money supplied by the town."' 

Oo ntri b uU ons of far less importaaoe than Bequisttlons.— 
In these cases, contributions eertainly appear to be an al- 
leviation of, rather than an addition to, the burdens of war. 
But after sJl, their importance is slight as compared with 
that of req;uisitions. It has been estimated that during the 
Kranco-Oerman War, the war contributions, outside of the 
ci^ d Paris amounted to thirty-nine millions of francs, 
while the requisitions reached the sum of three hundred 
and twenty-seven millions.* 

RIm No peiMful penaUf, pecuniary w oOkenptM, jftaS \% 
wfHeUi upon l&e populatum on aeeouM of fKo aeU of umK- 
vidmali for wkiA IJUy camnot ke regardod a$ jomUff omd i 



Mjf rmpotuMo. 

Ho general penalty for aets for wUeh a eommuBitj ( 
not be regarded as oolleetlvely lesponsfUe^— The principle 
of this article has been observed in the past more in its let- 
ter than in its spirit Almost invariably, when communities 
have been held liable for* acts committed within their 
bounds, it has been upon the ground that they could and 
should have prevented them and were thus implicated in 
their eommisBion. Both these elements should enter into an 
act before the community is held liable for it. If the acts 
are individual acts, necessitating little cooperation with tiie 
rest of the community, the laying down of any presumption 

vPraCoflol ISof the 



»1T 

of eoUeetive Tetponnbilitj ivonld api>ear to be direetty <4^ 
posed to the. spirit of this ertiele. 

Aid of oomiiiiiit^ maj be required In prerenliBf aad 
pnnjiliiiif aeti of vfadenoe against the law of war^— Rren 
where a emnmimity may be able to preyent an act, it sbonld 
not be held xesponsible for its eommission, nnless it is nnder 
a dntj to present it Aets of Yiolenee in oeenpied territory 
are likely to be of soch a pnblie natore that the intention 
to eommit them may be well known to the eommnnity at 
large, and, if they are eontrary to the laws of war, a bel- 
ligerent is jnstified in requiring the aid of the eommnnity 
in suppressing them and even in holding the eommnnity re- 
sponsible if they are not prevented. But this lisbility 
shoold not be extended to aets not themselTes eontrary to 
the laws of war, bnt whieh the oeenpant opposes for his 
own safety and in order to prevent aid from reaehing the 
enemy, such as spying, leaving the oeenined territory to 
join the national army, and refuing to give np arms. 

The innoeent should not snfTer for the gnil^..— As in the 
ease of reprisals, every effort shoold first be made to pnnish 
the aetoal offenders. CoUeetive responsibility is so ea^y of 
enforcement that there is the temptation to resort to tt on 
the least occasion; bnt the prindple that the innoeent shoold 
not suffer for the gnQty applies here as well as in the esse 
of reprisals so that only as a last resort should eoUeetive 
responsibility be enforced. The same care in placing such 
responsibility should be taken as is taken in determining 
and enforcing the liability of the individuaL An investiga- 
tion in the nature of a judicial proceeding is the lesst that 
can be demanded. 

flnes#— The article under consideration appears to be 
somewhat out of place in the scheme of the convention, but 
it was probably inserted here because war contributions and 
fines are botii money exactions, and because eoUeetive re* 
sponsibility is usually exacted in the form of fines. 

R LL No eoniribulian shdtt he edOeeUd except mnier a 
wfittem orders end on fKe reepotmbUiiff of a Commamiet4m* 
chief. 

The eoUeeUon of ihe eaid amUOndum ehatt only he effedei 
aefarae poteible in aeeordanee wUh the mZtt ^ siMsisMiil omd 
inddenee of the iawee in force. 



818 XIUCABT OOODPAnM. 

For Miry confiAiiltoii « tuAfi AaU U givm io ik% am* 
Mhuion. 

Baodpli for Oontrilratloiis nMd not havt the ehanetar of 
fadtmntttoo* — ^These receipts need not have tlie ehaimeter of 
promkei to paj. Am has been aeen, attempts to give them 
that eharacter, both at Branels and at The Hagae, failed, 
although made by many of the moot able and influential men 
in the eonferenoes. It was earnestly desired to limit the 
levying of eontribntions by making the reeeipts for them 
indemnities, thns avoiding the impositions of the burdens 
of the war on individnah; bat the general feeling at the 
Conferences seems to have been that the reimbnisement of 
the individual is a matter of national rather than of inters 
national coneem.*. There was no feeling that the individual 
ought to bear the whole burden of the contribution himself; 
but it was felt that the reimbursement could best be man- 
aged by oach government within its own territory. 

H LIL Bequi$Uum» in hind and $9rviee$ AatU nci 1$ d§^ 
manded from manieipaKUti or inhabiianU exe$fi far ika naada 
af ika armg of aeeupaUon. Tkay skoM ha in proforUan io ika 
raaaurcaa of ika eounirf, and of ouch a naiura aa noi io in* 
vdlva ika MahUania in ika ahligaiion of iaking pari in siiK- 
lory oparaHona againai ikair oawUr^. 

8u€k raquiaUiona and aarvicag okM onJf ha domandtd on ika 
auikoriijf of ika eomtnandar in ika loedUiff oceupiad. 

ConirihuUona in hind akaU aa far aa poanbHa ha paid for in 
cook; if noi, a recaipi akdU ha givan aM ika papnani of ika 
amouni dna akaU ha mada aa aoon aa poaaSbh. 

Segulatlons as to tKf ^ orders autho H^^Bg Pegiriiltlons 
It will be noticed that while contributions can only be levied 
by the eommander-inrchief and on written order, requisi> 
tions may be demanded by the commander in the locality 
occupied and orally. Requisitions are often made of prop- 
erty of little value, such as forage for the horses, for which 
it would be incongruous to require the order of the com- 
mander-in-chief or even a written order; and often the need 
for such supplies is so pressing that either would be imprac- 
ticable. Where it is possible, however, it is desirable that 
the lev3ring of requisitions should also be on the written au- 
thority of the commander-in-chief Not only is this a great 
safeguard against the abuse of authority, but the written 



iBQuanKm. Sit 



order alao aToidi mfaonderrtanding on the. part of Hhtim 
who execute it. Ferrmnd tajB that mieh orders should be 
"written and signed mentioning deailj the nature and 
qnantitj of the payments to be famished, the length of the 
service and the daj, the hoar and the place of deliveiy/'** 

Kq^ression of the dssiraUUtj of payiag for refiiisttlOBS 
In eash^— The last paragraph is the work of the two Feaee 
Conferences. Tlie Bmssels Declaration expressed no pref* 
erence for cash payments. Tlie part the seeond Conference 
played was in giving the receipts somewhat the charseter 
of indemnities by providing that ''the payment of the* 
amount due shall be made as soon as possible.** The im- 
plication intended by those who would firee the individosl 
as far as possible from the burden of the war probably is 
that the amount is due from the belligerent giidng the re- 
ceipty but the fket that the provision is not worded more 
definitely than it is shows that the Govenunents were un- 
willing to agree to any absolute obligation in this regard 
and it is likely that whether the amounts indicated in these 
receipts are paid or not will be left to the Treaty.of Peaee 
or to the action of the country in which the reedver was 
domiciled, as in the esse of receipts given for war eontribup 
tions. 

The French ICanual enjoins that the receipt ahaU contain 
words and figures which will make it possible to Tariff its 
authenticity afterwards and to establiah the value of the 
thingi exacted; that the ofllcer who givea the receipt shall 
write the text legibly, note spedficallx the csiintisl d^ 
ments which detennine the maiket value of the artideSi 
give the date, indicate in connection witk hk dgnatnre his 
grade and the corps to which he bdongi, and note, If there 
be occasion for it, that he acts by ddegation of superior aa> 
thority.^ 

Bervlees must not Involve mflltaiy servloo under Iha «no> 
mj* — Services whidi cannot be required, because thej in- 
volve iMrtidpation in the operations of war against oneli 
country, have already been discussed under H VI, ZXm 
and XLIV. 

Requisitions must be In proportion to the resomoss of tto 
oonntiy^— The limitation that the requintions be in 

!• Frmad, Kfqiilsitiom imttsini^ pw SO. 



SM xnJTin occupixioir. 

tkm to the TCMNureM of the eoontiy k importanli M I 
ing to the mind of the eommander that aeeoont nmrt be 
taken of Rqointlone prmojoakf made on the commnnHgr, 
and a eaiefnl inyeetigation made of the rMonreea of the 
coontrj, 80 that the horden of the reqointions may be di^ 
tribnted as equitably as ponUe. 

The peiional senrlees thai may bo reqafaedr^Penonal 
aemeeo that may be reqnired are those of dergymen, phy* 
sicianSy surgeons, phannaeistSy ete.; of workmen, snch as 
driyeis, farrieis, smiths, earpenters, bakers, bntehers, ete.; 
and finally of laborers, proYided always that thsy are for 
the needs of the army and do not amount to partieipating 
in militaiy operations against their country.** Others likely 
to hare their seryiees recpiisitioned are railroad, telegraph 
and postal employees. Msyors and other notables may be 
required to aid in leTjring eontributions and requisitions in 
eommunieating ottdal deerees to the inhabitants and in per> 
fonning other fonetioiis of a similar nature not ineonsistent 
with loyalty to their own country. It would seem, howerer, 
that requisitions cannot be leyied to aid in carrying on the 
administration of the occupied territory, as contributions 
csn, as they are limited strictly to the needs of the amy, so 
that the occupant is not authorised to compd postsl em- 
ployees to continue their functions for the sake of giring 
a better administration, but can do so only for the needs of 
his own army. 

Artides thai may ba leqnisilionsd.— Bequidtions in kind 
extend to all objects inddental to the shdter of troops, to 
the snbdstence of the army in campaign, to transportation 
and communication, to the care of the dek and wounded, 
to objects of dothing and camp equipment, and finally to 
all materials, tools, apparatus, etc, suitable fdr the use of 
thearmy.» 

Shsttofng of troops^— Shdtering of troops may be by 
cantonment, by camp or by biyonac Biyouaeing inyohres 
the use of improyised shdter or small tents, or eyen a stsy 
in the open air. It is ineyitable in the presence of an < 
or when the march of troop is concentrated, but is < 
Ij unsanitary and is neyer resorted to ezeepk from 



•itj.^ Camps are plaeei where troops live for a eoiisider> 
able time in large tents or liarraeka. Camping Is the only 
altematiTO to qnartering, for the poipoee it sheltering 
troops for aaj eonsideraUe period, so that each Taiies in- 
venely ss the other. As Franeh militaiy writeis seem to 
think eamps mainly of nae in special esses, snch as invest- 
ments,^ quartering is likely to be largely need by the 
Freneh anny and the praetiee seems to be the ssme gene»> 
ally on the Continent But in England and the United 
States there has always been a strong fooling against quar- 
tering on aeeonnt of its inteiferenee with fknuly lili^ so 
that it will probably nerer be so general in Ameriesn ss it 
is in Continentsl armies. Its adTsntages are its restfolnesi^ 
its heslthfolness and the small degree of preparation it re* 
qnires on the part of the troopSL 

<iiisrterlBg of troops in dnuehsi^ eite«— At the Brassdi 
Conference, Baron Lambermont tried to have the ri^ to 
quarter troops in ecelesisstieal, charitable and educationsl 
estsblishments limited to the ndc and wounded, but General 
Voigts-Bhets would not entertsin the propossl, at least as 
applied to churches; and it is probable that in pressing 
esses any of these institutions msy be so used. The qua»' 
tering of troops in museums, libraries and art galkries 
would seem to be absolutely forbidden.** The inhabitants 
can be required to keep the streets lighted, to keep lii^ 
in their windows and to keep their doors open. SoldieBS 
hare a right to light in their quarters, and if cir e iimslsnee s 
warrant it to fire and straw.** 

Beqoisitlon of food svmdiss^— Bequisitions of food sup- 
plies sre importsnt eyen where sn army subsists miJnly on 
its eouToys; and where the army is engaged in rapid strato- 
gicsl operations, they are its mainstsy. Where purdmses 
in the open market are out of the question, requisitioBn 
must be resorted to. These take two forms that of r^ 
quiring nourishment from the inhabitants with whom the 
soldiers are quartered, and that of requiring the suppUes 
themselTes. The former method does not ezaet any pro* 
▼ions preparation, gires the soldiers a varied food withoot 

ulMi^p.4SL 
wPMCoeollSof thB( 

n 



Mt IIXtlTAftt OOCCTAXIOir. 

delay, eaiuet len fatigae to tilia wddiery permUa eon^oyt of 
provisioiia to march aeparatelj, atiliiea best the pioTiaioiis 
of all iorti in the eonntrj, and k more eeonomical since it 
giyes rise to less waste and does away, to a great degree, 
with the necessity for transports.^ On the other hand, as 
already mentioned, there is a prononnced sentiment against 
it both in the United States and Oreat Britain, on aeoonnt 
of its interf erenee with funily life. 

Looal oonditloBS^— In fixing requisitions, it is necessary to 
have regard to local conditions, to the manner of living, 
locality itself, etc Thns, in industrial centen and the great 
cities, it will be necessary to take into account the work- 
ing population. They do not produce food products, they 
do not hare proYisions with them as country people ha^ 
and they often lack the credit and money to procure pro- 
visions in advance of their needs.** 

Begnlations as to boardings— Where the requisition takes 
the form of boarding, the inhabitants ou|^t to furnish the 
regulation ration or its equivalent; and, to avoid difllculties, 
the commandant ordering the requisition should determine 
the composition of the repast to be furnished. When the 
nourishment.fumished is insufficient, the soldiers should not 
take matters into their own hands, but should complain to 
their officers who, if unable to obtain satiitfaction horn the 
offending parties, will take the matter to the commandant, 
who will see that the municipal authorities live up to the 
obligation imposed upon them of providing suitable quar> 
ters.** Provisions for the horses may be required in the 
same way as for the men. 

Importaaoe of reqdsitlotts^— The possibilities of the abuse 
of this system are evidently very great; but onthe other 
hand, it was used by Napoleon and by the Germans in 1M6 
and 1870 with great success, and Ferrand, following Beim- 
tier, says that if the exaggerated fear of causing too heavy 
a burden on the populations should cause this manner of 
feeding .an army to be put aside, or if the temperament of 
the army should not be strong enou|^ to stand the test 
of discipline which this method makes neeessaxy, it would 

Mrtrnnd,yb47. 
M rtnw d,y.4C 



UQunmonL jSt3 

be better to lenomiee wir altogether; an advemiy better 
adTiied would have from thk alone a marked ■aperiority.'^ 

Under the head of reqniritions of aappliea, are elaaeed 
eoal or other eombnstibleSy provisions of all kinds, and even 
wine and tobaeoo, whieh, as the men may be aecnstomed to 
them, are likely to add to their eomf ort and elBeieney.'* In 
ntili^mg these sapplies, the miD% ovens, ete^ of the loeality 
may be made nse of. 

X«nd transportation*— Land transportation other than by 
railroads is of great importance in the eonveyanee of sap- 
plies and of the sick and woonded. For this purpose all 
sorts of carts, wagons, ete^ and their drivers, are needed, 
bat it is the ose of the conveyances that is reqaisitloned 
and not the conveyances themselves. The period for which 
they are taken shoold be short, and the retom sare, as they 
often represent all their owner's working capitaL" The 
right to the ose of railroads and other like means of com- 
monieation is treated in H Un, and so will not be dis- 
eossedhere. 

miilary ezeovtion^-A recpiisition is osoally addressed 
to the aathorities of the commonity reqoisitioned, or in de- 
f aalt of saeh aathorities to notables of the district, who are 
held liable for its apportionment among the inhabitants, 
since they are in a better position than the officers of the 
hostile army to apportion it equitably. In eases where those 
to whom the reqaisition woald ordinarily be addressed can- 
not be f oand or refose to act, or where tiiere is great oi^ 
gency for the reqaisition at a point so far distant that the 
monicipality can not be regalarly notified, the occnpant may 
be compelled to resort to militaiy ezeeation and take the 
articles desired himself^ and if necessary, l^ foree. Mili- 
tary ezeeation involves domiciliary visits and is apt to be 
marked by the infliction of severe penalties as the occasion 
for it is perhaps most often the refosal of the inhabitants 
to famish the sapplics demanded. The resort to it is tfaer»> 
fore even more to be shnnned hj the inhabitants than by 
the army.** 

H lillL An army of oeeupaHon am anlf iah ponetmon of 



pwse. 

ttransad, pp. I 



tM xnjTAiT oooOTATunr. 

eatk, fwnda, wnd realtMobU MteufiiUi wkiA ar§ gMettff fk$ pnp* 
ertff of ike 8iaU, dBpoU of ormg, mmn$ of ifonopoH, Horm and 
tufpUeg, and, genaraUff, OH movahU proparijf hdon^gmg io the 
8iaU wkiek maf ha uaed for mUUarf opaniiona. 

All appUaneea, wkaikar on land, ai aea, orinikamr, adapUd 
for ika ffttfif iRiMum of naum, or for ika iranaport of paroona or 
ikinga, axdnnva of eaaea governed 5y naval law, depoie of arme, 
and, genaraUg, dU hinde of ammnMiion of war, mag he eriaed, 
even if fkeg helong'io private individndle, hni mnel he reetored 
and eompeneaUon fixed wiken peace ie mada. 

Sta^ ofweat movable paUlo iifu ptr tj of eamuttj^^Tbe flnt 
puragrmph demk with rights oyer the movable pnblie prop- 
erty of the enemy. The right to an sneh property vefor in 
war tpringii (1) from the ri|^t to prevent ite nae l^ the 
enemy, and (2) from the right of the oeeapant to indemnify 
himself for the expenses of the war. The oeenpsnt does 
not beeome the owner of the property by the fset of soe> 
eeeding temporarily to the snthority of the legitimate pow* 
er. Title remains where it was before the oeeapation, nntQ 
the oeeapant takes advantage of his position and appro- 
priates the proper^ to himself. In tiie esse of tangible 
personal property, this appropriation is by means of physl- 
esl seisore, snd some writers have endeavored to make this 
a general role, so that without physieal seisnre there ean 
be no valid appropriation whieh the legitimate power need 
reeognize when restored to authority. If this be so^ the 
right to appropriate debts owing to the legitimate anthority 
falls of itself, for debts being intangible ean not be taken 
hold of and earned off as tangible property ean be. 

KgiA to edleot debts dne the legttimale powwr— The 
praetiee of appropriating debts dne the legitimate power is 
too well established, however, to be qnestioned ss a role of 
law, and on principle it hais the weigjit of authority in its 
ftivor. It is to be sssimilated to the rule allowing the oeeu- 
pant to collect the taxes and other obligations dne the le- 
gitimate power rather than to that for the appropriation 
of tangible property. It springs from the authority tho 
occupant has over the persons of the inhabitants rather than 
from that over property itself. If the occupant is entitled 
to collect the public obligations due the legitimate power, 
there seems no valid reason why he should not be entitled 
to the private obligations dne the legitimate power also. In 



FUBUO AXD nUTATB P BOF l MTf , . .SM 

both taam, the ri^ of appiopriaticm is pofdy a ie fmtU 
right. As &r as either elaim has been aetaaUj paid under 
eompnlsion, saeh payment binds the legitimate power, but 
only so far. The release of an obligation beyond the amount 
aetnaUy eoUeeted is in no wise valid against the restored 
sovereign. 

P t t iperlj f hdd In tmst bgr the Stato not to be qnpropci. 
ated^— It mnst always be borne in mind that the movable 
property liable to seisore is property belonging to the State, 
not to local eommiinities, and that it most bebng to the 
State in its own ri|^t and not as trustee for others, as where 
savings banks and insoranee eompanies are carried on by 

Disposition of roiDing stook owned by the State.— A point 
over which there has been mnch diseossion is the proper 
disposition to be made of the rolling stock of railroads 
owned by the State. The importance of each rolling stock 
to a modem eommnnity led the Institate of Ihtemational 
Law to assimilate it to private property, which must be le- 
tomed at the end of tiie war, bnt this view did not prevail 
at The Hagae, the sentiment of the Committee in charge of 
the snbjeet being that the disposition of the rolling stodt 
shonld be settled at the eondnsion of peace. This prevents 
the alienation of the property in the meantime, and so 
secoies some of the advantage that wonld have been dezived 
from the rule ftivored by the Institate, and allows all the 
circnmstances of each case to be taken into eonnderation. 

Bights over private pro per ty^ — The second paragraph 
deals with private property. ALnost neeessanly the means 
of transportation and conmtnnication are seised by the oe- 
cnpant and kept nnder his control during the period of the 
occupation. They are of the ntmost importance to him, 
and besides maj be of the greatest nse to the legitimate 
power if not taken into the occapanfii hands. Receipts 
wonld be inapplicable to the taking over of prc^wrties of 
this land and therefore are not mentioned. It was deriied, 
especially at The Hagne, that the seisore of these instn- 
mentalities should be regarded as a mere seqnestration. 
This would have entitled the owners to an acconnting of 
rents and profits, when their property was handed back at 
the conclusion of peace; but violent opposition to tUs view 

• PMtoeolllcftke 



8S6 muxAiT oooDFixiciir. 

muiif eeted Haelf » and it was agreed that the eompenaatiea 
■hoald be arranged at the peaee. The idea was not so modi 
that the owners should not be folly compensated, as that it 
was not a matter of international tight. As in the ease of 
eontribations, it was thought best to leave the matter of 
cOTipensating ita eitisens for losses sostained in the war to 
the nnsnecessfol part j, and not to c<»npel her to pay part 
of them in fall, when she might feel that she eonU dis- 
tribute the bnrdeni of the war more equitably on some other 



DUTerenoe between means of tnuMportatlon and 
mnnication and munitions of war«— It is to be noticed that 
means of transportation and communication are here classed 
with munitions of war but that the provision that they shall 
be restored and compensation fixed when peace is made is 
much more suitable for the former than for the latter. If 
munitions of war are restored why should any compensa- 
tion be made? In the case of the means of transportation 
and communication on the other hand it is only bar that 
some COTupensation should be made for the loss of profits 
in the meantime. As a matter of fact, the two classes of 
property were sharply distinguished at Brussels. It was 
f dt by many to be illogical at least to allow contraband at 
sea, even though belonging to neutrals, to be captured and 
confiscated and yet to respect the same kind of property 
on land when belonging to enemies. The feeling that sn^ 
property should be subject to capture was so strong that 
careful provision was made that the requirements about 
restoration and compensation should not apply to it The 
Brussels form of the article was adopted at the first reading 
at the First Peace Conference, but it was afterwards 
changed. It seems dear frun M. Bolin's report that it was 
desired to retain the Brussels article intact, except for one 
clause that might have been c<»strued to ui^iold the seques- 
tration theory, but that, after the ominion of that dause, 
it was thought desirable to condense the whole paragrai^ 
There was no declared intention of doing away with the dis- 
tinction between the modes of treatment of the two classes 
of property mentioned, and any sudi attempt would cer- 
tainly have given rise to serious opposition just as it did at 
It is now difllcult to see, however, how the artido 



\ 



ruBUO AND nrrAiB P MorM T i. Wl 

tan to be constmed u to dkUngaiBh between the two 



BUf§ not oomiiif under the ralei of naTil law.— Tbe limi- 
tation that the yeeaelsto wbieh thio article appliee ihall be 
only thoee not govemed by naval law was added as a le- 
Bolt of the snggestion of the Spanish delegate at the Brus- 
sels Conference that the proTisions of the artide shonld be 
limited to vessels '* appertaining to the navigation of inland 
waters, of nnnavigable riven and streams, in eommnnieatioa 
with the sea.*' Baron Lsmbermont proposed the phrsse 
''ships apart from cases governed by maritime law/* as the 
equivalent of this, and it was accepted.*' In the United 
States the jurisdiction of the courts of admirslty extendi 
to all waters navigable from the sea by vessels of ten tons 
burden and it seems like^ that the Duke de Tetuan had 
some rule of this kind in mind, but it was evidently not 
what the (conference, as a whole, intended, for on the ilnsl 
reading of the Project in full conference. Baron Bauds, the . 
French delegate said that his government feared the artide 
mi|^t not be interpreted to give the protection the Confei^ 
ence intended it to give to ''the maritime commerce of sea 
ports situated on large stresms,** but that his government 
would interpret the phrsse in its broadest and most absot 
lute manner. Baron Lsmbermont, who had proposed the 
phrsse, said he would interpret it in the same way, and no 
objection was made to either of these declarations.^* Ihe 
meaning of the Conference would appear to be that, where 
vessels are captured in the interior of a oountry by land 
forces, even though naval forces msy have cooperated in 
the seisure, such seixure will be subject to the ndes applio- 
able to seizures by the land forces and not to those applie- 
able to captures by the navy. In the esse of Tie Thsfis 
arising during the Bnsso-Japanese War it was hdd that a 
ship lying on the land alongside a dock did not come within 
the exception.** 

The phrasing "all appliances, whether on land, at sea, 
or in the air, adapted for the transmission of news, or for 
the transport of persons or thingi,** is the work of the 



latenstloiisk da Is PlOs, Plut I» ^ i 
sf Pketoeol 11 off fhe OomitlMi 
M piofeoecd 4 of tte Fall OoafmnHL 
a* 80s Tkksbookl, fw eOS^ it M|. 



muTABT oooDPixnnr. 
Conf erenee and is more indmiTa tkaa the old phns- 

H UY. Smbnuurb^ eablu eomn$eimg am occupUd lerrilofy 
wUh m fMHlral ierriiarf AaU not h§ mud or dmlraff$d $xe$fi 
t» ik§ COM of oftfoZiiii fMCMiJIy. Tke^f wimH Kk$wi99 he r^ 
dond cfui eampemalum fixed whm peace ie made. . 

Bolniiailiio oaldet^-At tlie BnuMb Ckinfennce it trat 
proposed bj the Danish delegate that landing cablea should 
be ineluded in the pzoteetion of the preceding artide^ bat 
the snbjeet waa one on which the Ck>nf erenoe had reoeiYed 
no instmetion and the matter waa left to a fntnre eonf ev- 
eneeu The Danish proposal waa adopted at the first Peaee 
Conferenoe in aaboommittee, bat waa dropped at. the last 
mimite in fall conferenoe for the sake of humony, the Brit- 
iah delegate lumng receiTcd instraetions from his goVem- 
ment that it feared the proposed amendment toached on 
maritime law."* So ihia artide ia new, taking the place of 
the old Article UY which dealt with the raih^ pUmteom- 
ing from neatral Statea and which ia now Artide XIX of 
the CkmTention respecting the Bic^ts and Duties of Neatrab 
in case of War on land. The aeisare or destraction maj 
take place within the territorial waters of the occnpied tor- 
,ritoiar; whether beyond this is a qoestion of grave doabt** 

H LY. The oecupjfing Slate AM he regarded ontif ae ad' 
mbdriraior and iuufruekutrp of pubhe hMmge, real eetaie, 
fereele and agriadiurdl eetatee heUmging to ike hoetUe Siaie, 
and miaaied in ike oeeapied counirg. li oMui eafeguard Uui 
capUai of ikeee properHee, and adminieier ihem ta aeeordanee 
wUk ike rnlee of MeafnaeL 

Oontraeta o( ezplottatton are rendered Tdd Igr flia conola- 
slon ef pesoe*— An occnpant haa the rii^t to the nse and 
the rerennea of immovable property of the hostile State 
within the occnpied territory. In porsnance of thia ri|^ 
he may, for instanee, farm oat the poblie railroads, agii- 
eoltoral lands and forests. Any contracta he may make for 
this porpoae, however, become inoperative with the cessa- 
tion of the occnpation since a belligerent cannot be allowed 
to exploit the territory of another after his occnpation haa 
ceased; and, if he haa no each ri^^t himself, he cannot im- 
part it to another by means of a contraet The contract 



I Iktomilkaato da Is Psis, Fut I ^ 
nWcrtkki^ n iBtOTMHoad Lew, 



miift be oomtruid as mbjeet to tenninatioii bj Am < 
of tiio oeeapatioa. Where aete of appropriaikm imder the 
emitraet are eompleted before the eenatmi of hoatOitfai^ 
th^ will be reeogniaed as binding bj the le^timate power 
when its anthoritj is restored, hot when the sets are not 
eompleted as where wood haa hem eat» hot good title to it 
has not Tet been giren at the eessation of Uie ooenpatioo, 
the legitimate anthoritj will not reeogniae the ri^t of the 
eontractors to go ahead and perf eet the tille. 

Bights over forests.— It waa desired at Brussels thai the 
rifl^ts of the oeenpant in the forests for instanee shoold be 
less than those of nsnfniety and that he ahoold not be alU 
lowed to toneh the treea of larger growth. This being 
eleaily eontraiy to the aentiment of the eommittee, H waa 
proposed that it ahonld at least be required that the foreati 
shoold be worked aeeording to the laws of the ooenpied 
eonntzy; bnt» aa thia would often be imposaible throng the 
refusal of forest offieiala to eooperate with the oeenpant, the 
proposal waa rejected and the prevailing sentiment waa that 
the oeeupant doea not exceed hia rii^ta ao long as he works 
the forests aeeording to some reeogniaed method of forest 
administration.** 

Oontraota entered into bf the oeeiq^anl aa admtadstntsr 
ef flia ooeq^ territory^— A distinetion must be made bo> 
tween eontraeta of exploitation whieh the occupant makea 
for hia own advantage, and those which he makea in hia 
capacity of administrator for the benefit of the eomnumitj. 
Measures for the permanent benefit of the community shoqld 
be lefty when it is possible, to the legitimate pow^, bat 
there may be cases where the needs of Oe comnninity are so 
pressing aa to admit of no dday, and if in each a caae a 
contract is let for the work which extends beyond the period 
of occupation, such contract ia valid even then, if it was 
reaaonably wHhin the acope of the ooeupant'a ffsmntlsHy 
provisional power. Such waa the decirion of the SapreaM 
Court of the United Statca in a caae rising out of the CSvil 
War. During the militazy occupation of New Oileana by 
the United Stotca forces, it became necessaiy to make cer- 
tain repairs along the water fronta involving the expendi- 
ture of large sums of mon^. Accordini^ a eontraet was 
entered into by the occupant for the makhig of the needed 



890 lUUTlBT OOOIJP1XI0V. 

repftin, a ptrt of the eontraet being a leaie for ten jetxi 
of that portion of tlie water front to wbieh the repain were 
to be made. It was held tliat thie leaM wae ^alid, m eoming 
within the reasonable aeope of the oeenpant*a adminiatnip 
tive powera, although the war ended leaa than a year later.** 

HLVL The propeHy of mvnicipelHi€$, thai of imiUutiani 
dedicated to religian, ^ariiff and edaeaium, tte aria and «ei- 
eneee, oven wken State proparty, ehaU ha treated a» private prop* 
artf. 

All aaigyra of, deairuciion or wOfal damage done to imUh^ 
iiona of ihia ikaraetor, kittorie monmmonte, worhe of art and 
oeianea, i$ forUddon emd ekoaU he mada ika aubject of legal 
procaodtngOm 

Property of loMlttlea, ofanrDheab eto^ to be treated aa pii- 
vale properly.— It may be that in aome eaaea aneh property 
will be anbjeet to the ri^t of reqointion aa haa been aeen. 
General Yoigta-Rheta, at Broaada, ezpreaaly refnaed to agree 
to a propoaal abaolntdy forbidding tiie quartering of troopa 
in religiooa, charitable and educational inatitutiona, and 
in hoapitala, but if auch quartering ia-erer allowable, it 
ahould be eonflned to caaea where the neceaaity for it ia 
imperatlYeu 

A heUigerant party wkiek vieHatee ^ prooiaione of tka eaid 
Begulatione ekaU, if the eaae demandos he Uahle to pay eompn^ 
aation. It ekdU he reeponMla for 00 aete eommUted hg par* 
$on$ forming part of He armed foreea. 

Thia article waa originally intended aa H LXT, but it now 
forma Article III of the Ck>nyention aa diatinguiahed from 
the BegulatioML 

Banotion.— "Ita operation win be to require thoae charged 
by their OoTemmenta with the ezerciae of hi|^ militaiy 
eommand to maintain auch a conatant auperviaion over tlw 
acta of their aubordinatea aa win be calculated to aecure 
the exact and rigoroua enforcement of the acTcral require* 
menta of the eouTcntion. If the cireumatancea of a paiw 
ticular war are auch aa to auggcat the application of a rule 
of limitation to caaea ariaing under the article, auch mutual 
atipulationa in that regard aa are warranted by the facta 
may properly find a place in the treaty of peace."** 

•taa waiiM% aar. 

MBzlnMt fiom tkt nport «f Oca. DaTfa, iMtodfld la tkt 
tte AflMikaa N^fitia^, ^ tl. 



siuuxATiojr or wai. 331 

mmirAnoir ov wai. , 

TtrmhiatiMi of war.— HbttilitiM geaenlly eease, if a fni- 
eral armuitiee is not already in exiatence, on the signing 
of the preliminaries of peaee, or of the trea^ of peaee itself^ 
notwithstanding that in either ease ratifieation may. be neo- 
essary to make these agreements folly binding. The state 
of war is nsnally tenninated by the ratification of a treaty 
of peaee, or by the absorption of one of the belligerents by 
the other. In either ease, the eontroTersies that gave rise 
to the war are deemed to be settled by it, and althooi^ am- 
nesty for all offenses eonneeted with the eonduet of the 
war is nsnally stipulated in the treaty of peaee, if it is not 
so stipulated, it is implied from the Ptoee itsdf. Prisoners 
are repatriated as soon ss possible, and normal relations bo> 
tween the two eonntries and the inhabitants thereof are r^ 
snmed. Where no stipnUtkm is made to the eontrary in 
the Treaty of Peaee, territory in the possession of each bel- 
ligerent at the oonelnsion of the treaty is retained by him. 
This is a eonvenient role, as it saves the nnsneeesshil bel- 
ligerent from the necessity of acknowledging a cession of 
territory he may be compelled to make. Private ri^ts in 
either ceded or eonq:oered territory remain nnafleeted by 
the transfer; 



s» 



APPENDIX L 



BBOmiATIONS AND INSTBUCTIONS OF THB JAPAN- 

BSB GOVERNMENT ON THB TREATMENT OF 

RUSSIAN SUBJECTS DURING THB 

RUSSO^APANESB WAR 

Bmro A smocAST of ah axuou, kztbaotid vbox the Rx?ui 
in Dboit Intkutationau bt MASAHosusi Akitaica* 
Pbofsbbob-dooiob nr law; iormxb noraaom nr- the 
Unitbrbitt of Tone, Cowxasmom to thb Mihibrr of 

WABy COtmiBLLOB TO THB BUBBAU OF LBDIBLATIOir OF THB 
IXPBBIAL CABnrBT, ABD SBOBBTABT OF THB lOBXBB IV« 
fOBXATION BUBBAU FOB PBISOBBBS OF WaB. 



Inf onnatloii BvrMML— The Bnreaa of Inf ormation was 
eonstitQted bj imperial deereea of Febroarj 21 and Sep- 
tember 12, 1904. Ita fonetiona were carefully worked oat 
to eonf orm to H XIV, XVI and XTX. At ite bead wae to 
be pLaeed a director of the rank of either general or colonel, 
who waa to be responsible to the Minister of War and who 
was to have anthoritj to demand the necenaxy information 
from the different military and naval authorities and fkom 
the hospitals and ambulances. Beginning with March 80, 
1904^ the Bnrean sent the information required by The 
Hagne Begolations every ten daya to the French Minister 
at ToUo, bat an agreement waa reached in Aagast between 
the Japanese and the Rossian Bareao, whereby the farmer 
was to send its information to the Rossian legation at Pekin 
and the latter to the Japanese legation at Berlin. F^om 
this time to the end of tiie war the Japanese Bareaa forw 
warded its information the 5th, l&th and 25th of each 
month. Special effort waa made to obtain the desired in- 
formation concerning Bossian officers who had been made 
prisoners of war, by telegraph. The work of the Barean 
increased greatly as the war pr o g ram e d. At Hs dose Us 



imNHuiATiojr mmMAti ttt. 



penomiel oonnttad of the direetor, Qenertl Hbngo, tour i 
reUxiat, a fioaneial oflleer» three tmiilatoxi» five derki and 
twenty empioyeei. 

Befnlnttm ef Mrvloe in detafU-Qj deereei at the Minii. 
Ust of War id Febmary 27, and September 12, 1904^ the 
■orviee waa regulated in detafl. IndiTidnal earda were to 
be made giying the inform ation with regard to priaonem 
of war now epecified in H XIV. They were ako to indi- 
cate Crimea or infraetiona committed 1^ prisonerB. Similar 
earda were ako to be made for the aide and woonded and 
thoae f oond dead upon the Add of battle. After- the re- 
eatabliahmenl of peace thia card waa to be retomed t o the 
other belligerent, a proyiaion now incorporated in H XIV, 
and a copy kept by the Minkter of War. The Borean waa 
alao, if oceaaion offered, to give ita Tiewa to the IGniater 
of War on the regolationa for the aorveiUanee of atationa 
of priaonera brought to ita attention, and under the aame 
circumatancea, on the oonfiacation or prohibition of com- 
municationa or pareda aent to or by the priaonera. Finally 
it waa required to pre aent a report to tiie Miniater of War 
each month relative to the execution of the aorvice and 
to the information concerning the priaonera both in J^paa 
and Bnaaia. 

Btotiatlca of flie Bureau^Until May 1, 1904^ the number 
ci priaonera waa very email, but from then on it increaaed 
until at the end of 1904 there were 186 officen and 4,469 
petty oflScera and aoldiera hdd aa priaonera, while at the 
end of the war there were 1,436 oflScera and 70,794 petty 
oflScera and men interned in the varioua atationa in Japan. 
In the following atatiatiea of the Bureau the flgurea for 
1905 include thoae for 1906 until the liberation of all the 
priaonera in February. 

iaai, jfii. 

BnnuentkeoanBimiMtioBa MBt..! CSa §^1 

we'd l,7ia 11^1 

lafoiBfttloe, mudMr «C tiiiiM MBt 840 IJM 

- - - fwa m 4jm 

FMUl BMMiiaM MBt 8» 10.117 

we'd U70 ie,a84 

TtfigrniM eat 7a 861 

twd fie t,w 

Indhidiua caida mde (pritonen) a,a3a eapMS 

« « « immkm kilbd in tetUe) aiO U61 



M4 immx V 



LfttMS uA portal cudi fcM priMBOS MU lOjOft 

•••■<■ * to ffff l tWMi ft M8 07,760 

QilU in noMT to priMom l^tttJS •^788.4ft 



Qifte in kind to priMom VtMl tlJUl 

BomitteMCOof obJaotehlllQrdMMMapffiMBm.. IS IM 
M « « « * «MmiM kOkd in te^ 

tlo n 16 

Of wills of priflOMiB ol mr S U 



The number of timee inf onnatioii was sent does not indi- 
cate the nnmber of indiTidnala with regard to whom it 
was sent. Often the names of 8,000 prisoners flgnred on a 
sini^e list. These figures as to letters and postal eards 
ref tf only to those which passed throni^ the Bnrean. Con 
respondenee between the pnsoners and between other pei^ 
sons and prisoners was free, subject to the censorship of 
the officials at each station. The smaUness of the number 
of cards made out for those fUlen on the field of battle and 
of the number of objects left 1^ them is explained bj the 
fact that the Bussian officers and soldiers did not carry 
about them cards or other marks necessary to establish 
their identitj.^ The Bureau also yerified the information 
receiTcd from the Bussian bureau as to Japanese prisoners 
in Bussia, and published the same in the official gaiette. 

Oeneral r^gnlalloDS as to prisoners of war«— The treat- 
ment of prisoners of war was regulated by orders of the 
Minister of War and of the Murine. The order of the 
Minister of War was issued February 14, 1907. That of 
the Minister of Marine was issued three days later and 
was along the same lines, althoui^ not as detailed. What 
made it notable was that it applied to pnsoners taken Ij 
naTal forces, the rules laid down in The Hague Begulations 
for prisoners taken 1^ the army, althoui^ there was no 
international conTentkm applicable to the former. Both 
orders were based on a carisful study of the Begulations 
and breathe their humanitarian sfurit. The order of the 
ICnister of War consisted of thirty-four articles, but th^ 
require little comment. Artide 8 applied the ordinance on 
disciplinary punishments for the army on land, to the pris- 
oners of war, except where special provision was made. 
Artide 88 prorided that the prisoners should be dinded 



iFor tsUo «l objoets MQi«iiig to ttmdum dosd en tto Sdd sff 
bsttto or ^ylag slt«wara% sss TiHbssM, pw ML 



BBBAIUDIIOITLAZIOiniL S85 

among different roomi aceording' to rank, ele^ and tbat 
in eaeh room a ehief ahonld be appointed who ahonld rep- 
resent the prisonera and be reaponaible for dbeipline. Artt* 
ele 25, among other things prohibited the nae of dphera 
in letten and telegrams. Artiele 27 required that the 
regulations drawn up I7 the eommandants for the sor- 
▼eillance of pnsoners of war be eommnnieated to the Min- 
ister of War, and to the Borean of Information. Finally, 
Article 28 provided that the siek and wonnded considered 
incapable of further militaiy sorvioe should be sent back 
to their eountiy on condition of not retaking arm% al- 
thoufl^ this was not to be applicaUo to those who nd|^ 
be of importance in the war. 

Statistics as to prisoners^— The totsl number of prisoners 
during the war was 84,445. Of these 10,442 were freed on 
the scene of operations, 1,704 died before their arrival in 
the interior, 879 died in the stations and a number escaped 
after the establishment of peace. Besides the 1,271 offleers 
captured at Port Arthur, 77 out of the 257 officers cap- 
tured in the naval battle of the Sea of Japan recdved pei^ 
mission to retun thdr swords.. There was no exchange 
of prisoners, althou^ negotiations had been commenced 
a little before the end of the war, but in the course of the 
campaign the Oovenunent permitted the sick snd the 
wounded recognised as incapable of further militaiy serrice 
to return to their country; 4,039 went frwn Port Arthur, 
95 from Kob4. The Empress displayed the same humanity 
towards the prisoners as towards the Japanese soldiers in 
supplying them with artificial eyes and limbs; 154 prisoners 
received glass eyes and 138 artificial limbs. 

More deta&ed r«gn]allons as to prisoners of war— Of even 
more interest and value than these general regulations were 
the special onea which the exigenciea of the war called foiih. 
The capture of 004 prisoners at Chiu4ien-Cheng gave ooeik 
sion for the more detafled regulation as to the treatment of 
prisonera of war of May 15, 1904. Artide 4 provided that 
prisonera of war who were officen or adjutanta should be 
entitled to choose orderlies from among the prisoners, ordi* 
narily at the rate of one orderly to two officers. Articles 9 
and 10 guarded against the improper use of any ri^^t of 
visiting given to foreignera and at the same time shklded 
the prisonera from the curiosity of the inhabitants Ij r^ 



886* Anwna L 



qniring e ipr e i i pemuHioii of tho eomiiiaiidtiit of the gus 
riflon to enter tbe statioiii. In ghring pennianon to Tint 
to thoee who had reUtiTeo among the priionen, tho au- 
thorities were very liberal, and many snbordinatea of Bidi- 
op Nieolaia of the Boiwian Chnrehy as well as Catholie 
priests and ministers of other religions reeeived anthoritj 
to celebrate their offiees in the stations, while the prisoners 
were allowed to eonf ess and were otherwise left alone with 
the priests, notwithstanding tho proTkion of Arttde 10 
that interviews with foreigners shoold only be allowed 
nnder sorveillaneo. 

Hoorishment of prisonors of war«— The noorishment of 
prisoners of war waa to be ftimidied in kind at the rate of 
60 sen per daj for oflfteers and adjotants, and 80 sen per 
day for petty ofBeers and soldiera. These sums were neaily 
twiee those allowed Japanese soUiers. For the oflSeers 
and adjntanis the eooking was to bo done by the orderiies, 
or if neeessaijr by hired men, while the petty officers and 
soldiers were to bo divided into small groups and to eook 
for themselTes. Provision waa also made that tho above 
Boms mi^t be employed to provide tea, biseoita, eakes and 
fmita between meals. Sailers w^re to be admitted to the 
stations, but the priees and the qaalhy of the objeets add 
were regnlated by the conuaandanta cf the garrisons. . 

Bed^Uilg and dolfalng^By Article 19, suitable bedding 
and toilet facilitiea were to bo provided for the officers and 
men and th^ were to bo allowed to retain their clothing. 
"When this waa worn oat new dothing waa to be provided 
for officers and adjutants, and, if neeessaiy, for the petty 
officen and adUiera. Ordinarily, however, the latter were 
to receive second-hand dothing. The maadmnm to be qient 
in this way for generals waa 80 yei^ in winter and 12 yen 
in sammer, for hats, coata and trouseia; 5 yen in winter and 
2.50 yen in sammer, for underwear; while the amount paid 
for shoes waa to bo determined hy their cost at the time. 
From these maxima the tariff ranged down to those for 
petty officers and men whidi amoonted to 8 yen in winter 
and 8 yen in summer for hats, coata and pants, .88 yen boA 
winter and sammer for underwear, while the amount to bo 
paid for dioea waa detennined in tto same way aa with tho 



t A add yi <ww ip « di le^sWr ts ear SoBsr, Aimfettei 
iputflffaym. 



UMIMTMMAMCaL, 837 

oiBeen. ThcM imiis wnre in aeeord with thota allowed in 
the natioiial amij. Caothing given in thii way was to la- 
main the property of the priaonen after their liberation. 

Amoonta allowed for keeptng dothea in repair and for 
dbjeota of oouonqptioaL— In addition to the above proria- 
iona made for lodging, elothing and food, the priaonen were 
to be allowed eertain amonnta for keeping thefar dothea in 
order and for objeeta of eonaomptlon. Offleeia and ad- 
jntanta were to reeeire definite aoma ranging from 25 yen 
per month for the generala to 5 yen a month for the adjn- 
tanta. Thoae below adjutants were to reedTo the aetnal 
amonnta apent, not to eaceeed 1 yen per month for the petty 
offieera and J60 yen per month for tiie aoldiera. In eonnd- 
ering theae soma it ia neeeasary to bear in mind that the 
eoat of living in Japan ia hardly half of that in Bnrope, aa 
ahown by the comparative pay in the French and Bnarian 
and Japaneae armiea.* Deceaaed priaonera of war aa a 
general' role were to be buried, the expenae thereof not to 
exceed 20 yen for offieera and adjntanta, 15 yen for petty 
offieera and 10 yen for the aoldiera. 

Plaoea of IntennnaBt Xnlarpretenir— The priaonera were 
interned in barraeka, pnblie bnildinga, templea and large 
private dwdlingi, and in aome loealitiea many temporary 
barraeka were erected. Stationa for the offieera and adji^ 
tanta. were eatabliahed aeparate from those for the petty 
offieera and aoldiera. The Government took care to attach 
a eertain number of interpretera to each atation, beaidea 
chooaing the offieiala of the atation from thoae veraed in 
French, Eni^Uah or German, and althoui^ there waa nmdi 
difficult in doing this on account of the number needed at 
the front, 182 interpretera in all were attached to tho dif* 
f erent atationa. They helped the priaonera in theb work 
and even went with them in their walka outaide the atationa. 

Heading matter*— Becanae of the difficulty of obtaining 
a soffident number of interpreters to read all the joamala 
of the world, the jonraala in a f ordgn tongue to whidi the 
priaonera were allowed access, were limited to the Japan 
Timea, Japan Mail, Daily Advertiaer and Japan Oaaette of 



•TiM qoMlSou M to tht pi^ to be ghoi Om priMom aid Bot aihi^ 
as BoMia BMde a TCnitbuMt to tko Vtm6k eonral miA i 
pnipoMk TIm poy la^ad fiom 160 yoi per bmbUI te tko | 
so MM to tkt MUioiL IkkahMbl, p. laC 



93B Amxnz i. 

Japan, the London Times, Standard and Daily Telegraph 
of England, le Temps, le Badieal and la Lanteme of Franee, 
The Son, The Tribune and Washington Post of the United 
States, Norddentsche Allgemeine Zeitnng and Berliner Lo- 
kal-Anseiger of Germany, and the Neue Freie Presse of 
Austria. In addition th^ were allowed to read all the 
Japanese journals and books, pamphlets or journals whieh 
were sent them, with the exception of two kinds c< pamph* 
lets entitled Os|>OTOsgenie and Bevolutionia Russia whieh 
had been sent to the Bureau of Information, but were not 
allowed to be distributed on aeeount of their hostilitj to 
the Bossian OoTemment. The printed matter donated to 
the prisoners was as foUowss 

1904. iMi. 

777 BMW 

8 1S7 

Books and pemphlcte 10»19S S41,atS 

« « psredi . • 10,198 884 

nhntimtod pamphkte end poitnita 1,844 li^l78 

~ ~ ~ 1,844 e 



POBtsl serviee*— The postal service, including the parods- 
post and the money order service, were regulated by orw 
ders of the minister of communications of March 8, 1904. 
In accordance with The Hague Begulations postal. com- 
munication wss made free. The controllers of the various 
stations were given* wide powers in receiving and ddivei^ 
ing receipts for parcels and letters of dedand value* and 
in cashing money orders without special procuration. All 
letters and telegrams were examined by the oiBcers of the 
. stations, but few letters were not allowed to pass. Those 

I messages which were sent to or received by tiie prisoners 

I on the field of operations and those which it wss difficult 

to examine in the stations were sent for examination to the 
Bureau of Information. As at times the correspondence 
i wss written in Hebrew, Finnish, Lithuanian, etc, it was 

required of the prisoners that they write cither in Bussian, 
Japanese, French, German or EngUsh. The number of com- 
munications of the prisoners of war to the end of 1905 is 
asfoDowas 



naxAL L4W. . .S89 



CABM AXO PABCBLS FOB C 

Scat iBiodicled. Rceeived. 

Iittiter MO 1^0 1^1 t 

FonlgB MO 8,317 7 S.fS7 • 

10ML 

Interior MO SS,2»4 SB S1JB51 48 

444,898 174 188JB78 1 




BMdft4 

88 
18 



14 
18 



B^gulalloitt 88 to pinhlnnimt of pitooiMn of war^—As 
the number of praonen ineressed eeees of xeeistsiiee 
agamst the aathoritiee mvltiplied. In October an imperial 
deeree waa issued regulating the punishment of prisoners 
of war, and this wsa ehanged to a law in Febroary, 1906. 
Bj Artiele 7 of the law the imperial penal code waa made 
applicable by analogy to offenses committed by prisoners 
in absence of more speciile provisions. According to the 
code, deportation and detention are applied in the ease of 
crimes, imprisonment in the case of delicta. Deportation 
to an island prison is inflicted for crimes whose penalty k 
from 12 to 15 years, detention in an interior prison for 
crimes whose penalty is from 5 to 11 years, and major or 
minor imprisonment in a honse of imprisonment for delicts 
whose penalty is from 11 days to 5 years. Prisoners of war 
colpable of resistance or violence to the authorities were to 
be punished by a detention major, or in case of extenuating 
circumstances by a minor imprisonment of from 6 months 
to 5 years, but when either of these acts should have been 
committed aa a result of eonspira^, the leaders were to 



S40 

be pnnitliBble with death, the othen to deportatioii, and 
under extenuating eireumstaneeiy to nugor detentkn. 
"Whenever there ihould be a eoUeetiTe eeeape remilting from 
oonepiraey, the principal authon were to be eondemned 
to deportation, and in eaae of aggravating eireumstancea to 
death, whOe the othera were to suffer major detention, or 
under extenuating eireumstancea minor imprisonment from 
6 months to 5 years. Breach of parole was to be punished 
bj a major detention; if accompanied bj an act of hostHitj 
with anns in hand, by death. Breach of promise not to 
attempt to escape was also to be punished by major do* 
tention; the violation of all other engagements by minor 
imprisonment The penalties for acts of renstance and 
violence, and plots to escape were to be applicable only 
during a first imprisonment, and vrere to be wiped out by 
a successftil escape. 

lufraetions.— During the war there vrere in all 28 easea 
of infractions of the regulation, but no one wsa exeeuted, 
the most vevere penalty being the deportation of a Gossaek 
officer for twice having attempted a collective escape as 
prineipaL At the end c^ the war, 95 prisoners, comprising 
11 officers, were detained for erimea or delicts in virtue c^ 
the regulation, or of the penal code. They were all put 
at liberty with permission to return to thor country, by a 
special amnesty o^ the Bmperor on the day of the puUica-. 
tion of the treaty of peace. 

Employment of p ri sone r s.— There was no great demand 
for worbsrs during the war either for public works or tor 
the great corporations, and the most part of the prisoners 
did no work even on their own account, ^thoui^ on cer> 
tain occarions individual prisoners were voluntarily hired 
by private persona. In these cases the Government allowed 
them to diqN)se of their entire eamingk The result of this 
lack of work wsa that there was littie occasion for the ap- 
plication of the order of jthe minister of war of September 
10, 1904, regulating the work of prisoners of war. It was 
bssed on a careful study of The Hague Regulations, how- 
ever, and is of value as an interpretation of them. 

Begnlations as to free promenade and living in privala 
houses.— Despite the decree of October for punishment of 
prisoners of war, an officer and five soldiers made a new 
attempt to escape the following January. Notwithstanding 



341 

thiiy however, the long pnmuMd regnlmtioii for gmng-ofll* 
een the priTilege of free promenade and of liting in pil> 
▼ate hooaea waa proeUinied bj an order of the minkter of 
war of Ifareh 18, 1905. Under it offieeia who woold ^ve 
their parole not to eaeape and to snbmit to the diaei|iline 
and good mannera of the imperial anny, mii^t be pemltted 
by the commandant of the garriion to promenade freely, 
or to live in priyate hooaea, in eaae they ahonld wiah to live 
with their wivea, or nnder other apeeial eixeomataneea. The 
permiaion to live in private hooaea, however, had to be 
approved by the minister of war. The time for the prome- 
nade waa generally fixed at from eight o'clock in the morn- 
ing to midday, and from one to fonr in the aftemoon. 
Nearly all the ofllcera vrere enabled to take advantage of 
thia privilege. 

Priaonera of war receiving either of the above privflegea 
were not to carry arma, nor were thoae who had the privflege 
of free promenade to aend or receive correspondence daring 
the promenade, while those dwelling in private honscs, and 
their cohabitants, were to snbject letters sent by them to 
the sapervision of the authorities of the station, and were 
to receive correspondence only after it had nndergone like 
eensorahip. Thoae on promenade were not to visit thoae 
dwelling outside the station without the authority of the 
commandant of the station. The oflScers dwelling fai pri- 
vate houses were not to go beyond certain limita, were to 
be subject to the orders of the various authorities, and were 
to be formed into groupa of about ten under the authority 
of tiieir senior, who waa to represent and be reaponsible for 
them. Each day they and their cohabitanta were to indi- 
cate their presence by signing the roll book kept for that 
purpose. A special book and a apecial journal were to be 
kept for them, giving their atatistics, phyncal descriptioa 
and photographa. Instead of the allowancea made to pris- 
oners within the stations, generals were to receive 800 yens 
per year, superior ofllcers 000 yens and inferior officers 500 
yens. Not many of the officers took advantage of thia op- 
portunity of living outside the stationa.* 



«llr. Tkkiiliftdii iiijt that maaj applieatiou man n 
it was impoMlbla to graai all tte appUeatlooa wttboot ! 

» ol oiderv it waa dcddcd to graai bet a inr. TIm i 

issfaiau. TUniMMM, p^ los-iea. 



S4S Ajnwnoi 



Znatmoit cf Evniaa nattaiy p«noii]iflL— At the begin- 
ning of the war a number of the Ifauwian eanitazy perMnnd 
were detained for some time at Matsnyama, poniblj with 
a view to annring the seereey of militaiy operations, bot 
from the battle of Liao-Yang in Angnst* 1904, thoee who 
fell into the power of the Japanese army were sent regu- 
larly to the adyanee-poets of the enemy or to the Freneh 
eonaol of the nearest Chinese port The Bosriaa sanitary 
perM>nnel at Port Arthur, eonsisting of 2,790 persons, re- 
mained from the date of tiie eapitolation, January 5, 190S, 
until March of the same year, eoneurring with the Japanese 
sanitary perM>nnel in the eare of the 15,138 siek and- 
wounded Busrians. 

QM Is and relief in Und.— The second paragraph of H 
XVI providing that gifts and relief in kind for prisoners 
of war shall be free from imposts and other duties as wdl 
ss from charges for carriage by Government railways, was 
carefully observed. Many of the private railroad and navi- 
gation companies voluntarily adopted a like rule. 

Osrt for the dead«— In the course of this war as in the 
Chinese-Japanese war, the sick, the wounded and the dead 
of both armies were searched and cared for immediately 
after each action without distinction. The bodies of the 
dead Japanese were burned, and those of the enemy buried, 
only after proof of death, and after the attempt had becooi 
made to identii^ the bodies by all available means. In the 
order of the minister of war of Hay 80, 1904^ there were 
carefully elaborated provisions to ensure proper sanitary 
arrangements for the collection, burning and burial of the 
dead, not only of the two armies, but of the bodies of the 
inhabitants found on the field of battle. Objects left by 
dead Bussians, except arms, horses and militaxy documents, 
were to be sent with the information obtained, to the Ri- 
reau of Information. Those left by the Japa ne se dead or 
by the inhabitants fallen on the fidd of battle were to be 
transmitted to suitable militazy authorities. 

Oemeteries for the Eussiaa dsad.— The number of the 
Russian dead was vexy great, and vast cemeteries were es- 
tablished. After the conclusion of peace the militaiy au- 
thorities made evexy effort to preserve the graves intact, 
but they eneountered insurmountable diflleulties because of 
the tredess, even bushless character of the country, the ta^ 



■nramKaiom. MS 

« 

regular eo ow wi of the ■tretnwy the deTatUting eifeete of 
the rainsy and finally, the robberies of the inhabltanta. 
From Jannaiy SI, 1906, Mandial Oduma, GoTonioxUSeneral 
of Kwaatong, gaye permiHion to foreignen to enter all the 
diitrieta nnder hie jnriedietion, and to search for and eanj 
away with the anthorisation of the militaiy anthorities the 
objects or bodies left in Hanchnria. Many Bnssiaiui took 
adTantage of the opportnnity offered. 

fiBStrootlons to reoonoile differenees in the treataanl ef 
the prisoiMii^— The nnmber of stations required for the 
prisoners of war after the taking of P6rt Arthur led to eon> 
siderable differences in the treatment of the prisoneia^ ea- 
pedally in the matter of free promenade and living in pri- 
Tate houses which led the minister of war on May IS, 190S, 
to issue instructions to the various eommandants with the 
idea of reconciling these differenees. He drew attention to 
the fact that while the Bussian prisoners seemed to think 
that th^ had done their entire duty to their eountiy, the 
Japanese regarded it a disgrace to be a prisoner, and ao> 
cordingly warned the commandants against allowing this 
to be the occssion of provocation. Ck>lonel Ibno, eUef of 
the station of Matsnyama, on observing that a large number 
of Bnssiana could not write to their ftunilies, had advised 
them to take lessons in Bussian. ffis advice was adopted 
and the example followed in nearly all the stations, but the 
minister of war warned the commandants that neither this 
nor instruction in physical training was to be made eoa^pot 
sory. He also warned against pointing the finger at prisoncn 
or touching them with the hands, except in proper cases of 
discipline, and directed that offlcers on parole living iir pri> 
vate houses should not be aeeompanied by guaidL He 
likewise directed that the districts within which th^ miglit 
walk should be chosen so as to be as pleasant as possiUe^ 
that th^ should not be forbidden to enter places where a 
public calling was carried on, that due respect should be 
shown for their wish to observe certain days as sacred, that 
noncommissioned officers and soldiers should be allowed 
more than two promenades a week as far as possible, and 
that except for aims and other militaiy objects, officers on 
parole should be permitted to purehase objects without bo> 
ing required to make a previous written demand. 

Bepatrialioin of prisonenb— In aecordanee'with the Trsaly 



8M 

of PipitiiiMmtli and Tlie Hagna BegnUtioiiiy Ike repatila* 
tkm of the priioiien took plaoe ai rapidlj aa ponible on 
the eoaeliiaipn of peace. Hie detafla of the eraenatioii 
were arranged for in an agreement drawn np 1^ tke Boariaa 
apeeial eomniiHaiy, Danilow, on the one hiuid, and the 
Japaneee Borean of Information on the other. Onthepid^ 
lieation of the Treaty of Porttmonth the law for the pnnidi- 
ment of prieoneri of war waa anapended and every libertgr 
eompatible with order given the prieoneiB while th^ were 
atin allowed the pririlegea of free poatage and freedom 
from dntiea» and tranaportation ehargea on gooda deatined 
to 



L4W1 Am OOfVOMS OF WAB OV LAMIk SAB 



APPENDIX n. 



LAWS AND CUSTOMS OF WAR ON LAND. 

O oi iy j uiT ioj i BxavsD bt thb Dklbqatbb of thx Uhited 
Scins xo THi BsooHD IxTBSKATioirAL Pbaob OonB»- 

SVOB RBU) AT THB HaOUX FBOH JuVB 15 XO OOTOBKB 8^ 
1907, SBSraOIIHO SHl LAWB Ain> CU8X0X8 OF WAB OV 



EBt Majatj, the G«nnan Emperor, S3ng of Pyuria; tlie 
Pneident of the United Statee of Ameriea; the Prendent 
of the Argentiiie Bepablic; Wm Majesty, the Bmperor of 
Anetria, Kmg of Bohemia, ete^ and Apoetolie Eing of Hun- 
gary; His Majesty, the King of the Belginms; the Preddoit 
of the Bepablie of Bolivia; the President of the BepuUie 
of the United States of Branl; His Boyal Higlmess, the 
Prince of Bnlgaria; the President of the Bepablie of CSiili; 
His Majesty, the Emperor of China; the President of the 
Bepablic of Colombia; the Provisional Governor of the Be* 
pablie of Caba; EBs Majesty, the King of Denmark; the 
President of the Dominican Bepablie; the President of the 
Bepablie of Ecaador; His Majesty, the Kng of Spain: the 
President of the French Bepablic; Wm Majes^, the King 
of the United Kingdom of Oreat Britain uad Ireland and 
of the British DonJnions beyond the Seas, Bmperor of In- 
dia; His Majesty the Kng of the Hellenes; the President of 
the Bepablic of Ooatemala; the President of the Bepablie 
of Haiti; EBs Majesty, the King of Italy; Wm Majesty, the 
Emperor of Japan; Wm Boyal Hii^ess, the Orand Dake 
of Lazembarg, Dake of Nassaa; the President of the Unit- 
ed SUtes of Mexico; EBs Boyal Highness, the Prince of 
Montenegro; the President of the Bepablic of Nicaragoa; 
His Majesty, the Sng of Norway; the President of the Be* 
pablie of Panama; the President of the Bepablic of Pir^ 
gaay; Her Majesty, the Qaeen of the Netherlands; the 



SM imamzn. 

President of tbe BepabUe of Pen;. EBt Imperial Majeitj, 
the Shah of PeraU; His Majesty, the King of Poitngal and 
of the Algaires, ete.*; Wm Majesty, the King of Bownania; 
His Majesty, the Emperor of AH the Bnssias; the President 
of the Bepablie of Salvador; EBs Majesty, the King of 
Serria; His Majesty, the King of Siam; Wm Majesty, the 
King of Sweden; the Swiss Federal Cooneil; His Majesty, 
the Emperor of the Ottomans; the President of the Oriental 
Bepablie of Umgnay; the President of the United SUtes 
of Yenesada. 

Seeing that, while seeking means to preserve peaoe and 
prevent aimed eonfliets between nations, it is likewise nee- 
essary to bear in mind the ease where the appeal to arms 
has been brought about by events whieh their eare was un- 
able to avert; * 

Animat^wl by the desire to serve, even in this extreme 
ease, the interests of humanity and the ever progressive 
needi of civilisation; 

Thinking it important, with this object, to revise the gen- 
eral laws and eostoms of war, either with a view to defining 
them with greater precision or to confining them within 
such limits as would mitigate their severity aa far as pos- 
sible; 

Have deemed it necessary to complete and explain in 
certain particulars the work of the First Peace Conf erenee, 
which, following on the Brossels Conference of 1874, and 
inspired by the ideas dictated by a wise and generous f ore- 
tiiou^t, adopted provisions intended to define and govern 
the usages of war on- land. 

According to the views of the High Contracting Parties, 
these provisions, the wording of which has been inspired 
by the desire to diminish the evils of war, aa far aa mili- 
taiy req:uirements permit, are intended to serve aa a general 
role of conduct for the belligerents in their mutual rela- 
tions and in their relations with the inhabitants. 

It has not, however, been found possible at present to 
concert Begolations covering all the dreumstances which 
arise in practice; 

On the other hand, the High Contracting Parties clearly 
do not intend that unfbreseen cases should, in the absence 
of a written undertaking, be left to the arbitrary judgment 
of military commandera. 



IJLWt AKD CVBSOMB W WAB OX ULXU. tU 



Until a more eomplete oodo of the lawe of war hat ' 
iMaed^Hhe Hi^ Contraeting Partiee deem it expedient to 
deelare that in eaaee not inelnded in the Begolatione adopt- 
ed hj tiiem, the inhabitants and the belligerenta remain 
nnder the protection and the rule of the prineipleB of the 
law of nations, as they result from the nsages established 
among civilised peoples, from the laws of hnmanity, and 
the dictates of the pablie eonsdenee. 

Th^ declare that it is in this sense especially that Ai^ 
tides I and II of the Begolations adopted must be under- 



The ffigh Ck>ntracting Parties, wishing to condnde a 
fresh Conyention to this effect, haye appointed the follow* 
ing as their Plenipotentiaries t 

[For names of Plenipotentiaries, see Knal Aot] 
Who, after having deposited their foil powers, found in 
good and dne form, have agreed npon the following: 

AraouL 

The Contracting Powers shall issue instruictions to thdr 
armed land forces which shall be in conformity with tho 
Begnlations respecting the Laws and Customs of War on 
Land, annexed to the present Convention. 

Annou IL 

The provinons contained in the Begnlations referred to 
in Artide I, as well as in tho present Convention, do not 
apply except between Contracting Powers, and then only 
if all the belligerents are parties to the Convention. 

AmounL 

A belligerent party which violates the provinons of the 
said Begidations diaU, if the case demands, be liable to pay 
compensation. It shell be responsible for all acts commit* 
ted by persons forming part of its armed toreeo. 

Aaxiou T7. 

The present Convention, duly ratified, shall as between 
the Contracting Powem, be substituted for the Convention 
of the 89th Jvdy, 1899, respecting the Laws and 
of War on Land. 



UB tfpimxit. 

The CoDTentioii of 1899 remaim in foree as Iwtween the 
Powen whieh signed It, end whieh do not eleo rMtj the 
preeent GonTentkm. 

Annou Y. 

The preeent Ck>nTention BhaU he ratilled ae eoon as poe- 
aible. 

The ratifieations ehall be depoaited at The Hague. 

The llnrt depoeit of ratification ehall be reoorded in a 
froeh-verboi signed by the RepresentatiTes of the Powers 
which take part therein and by the Nethexland Minister Cor 
Foreign Atttm. 

The snbseqnent depoeits of ratifications shall be made hj 
means of a written notification, addressed to the Netherw 
land GoTcmment and accompanied by the instroment of 
ratification. 

A dnly certified copy of the proete-eerM relathre to the 
first depoeit of ratification, of the notifications mentioned 
in the preceding paragraph, as well ss of the instniments 
of ratification, shall be immediately sent by the Netherland 
GoTemment, through the diplomatic channel, to the Powers 
invited to the Second Peace Conference, as well ss to Ae 
other Powers which haye adhered to the Oonyention. In 
the cases contemplated in the preoeding paragraph the said 
GoTcmment shall at the same time inform them of the date 
on which it reeeiTed the notification, 

Asnou YL 

Nonsignatory Powers may adhere to the present Gonren- 
tion. 

The Power which desires to adhere notifies in writing 
its intention to the Netherland Government, forwarding to 
it the act of adhesion, which shall be deposited in the arw 
chiTcs of the said Government 

This GoTcmment shall at once transmit to all the other 
Powers a doly certified copy of the notification as wdl as 
of the act of adhesion, mentioning the date on which it 
received the notification. 

AsnoLiyiL 

The preeent convention shall come in foree, in the ease 
of the Powers which were a party to. the first deposit of 



ULWt AMD 008X0118 OF WAB OM LAMS. dt» 

ntiileation mxtj dajs after the dmte of the jMocte-MrW 
of thk depodty and in the caee of the Powen whieh ntitj 
sabsequently or whieh adhere, sixty days after the ndtifiei^ 
tion of their ratification or of their adhesion hat been re- 
oeiyed by the Netherland GoTemment 

Annoiai YIIL 

In the event of one of the Contracting Powen wishing 
to denounce the present Conyentiony the denunciation shall 
be notified in writing to the Netherland GoTemnient» which 
shall at once commnnicate a dnly certified copy of the noti* 
fication to all the other Powers, inf onning them of the date 
on which it was reeeiTed. 

The dennnciation shall only have effect in regard to the 
notifying Power, and one year after the notification has 
reached the Netherland GoTcmment 

AnnoLB.IZ. 

A register kept by the Netherland Hinistiy for Foreign 
Affairs shall give die date of the deposit of ratification 
made in Tirtne of Artide V, paragraphs 8 and 4, as weD as 
the date on which the not^cations of adhesi on (A rticle 
VI, paragraph 2) or of dennnciation (Article Vm, para> 
graph 1) were received. 

EtLeh (Contracting Power is entitled to haye access to tUs 
register and to be snpplied with dnly certified extracts. 

In faith whereof the Plenipotentiaries haye appended 
their signatures to the present (Jonyention. 

Done at The Hagne, the 18th October, 1907, in a sini^e 
copy, which shall remain deposited in the arduyes of tiie 
Netherland Ctoyemment, and dnly certified copies <tf whiA 
shall be sent, throng the diplomatic channd, to the Powers 
which haye been inyited to the Second Peace 0>nf erenee. 

ANNBX TO THB CONVENTION. 

BBouuLixom xnFBOXDro ths Laws Ain> Cusnms of Wab 
ovLom. 
[For the Artides of the Regulations, see the body of this 
work.] 



850 AjnwnoLtOm 



APPENDED in. 



DISCHABGING PBOJECTILBS FBOM BALLOONH. 

A DlOLABAnOV 8X0VSD BT THB DSLBQATli OF THBUHITED 

Btateb to thx SiooHD Ihtibnatiomal Pbaob OoHn^ 
nroB Hsu> AT Teb Haoitb hkoh Juhx 15 to Ooiobbb 15^ 

1907, nOHIBITIHO THB DDOHABOl OF PBOJBOIIUB JJKD 
KXFLOSIYBS FBOH BAIMOMIL 

The Undeirigned, Flenipotentiaiiahot the Powen invited 
to the Seeond Intematioiial Peaee Oonf erenee at The 
Hagae, duly authorised to that eif eet by their GoTeniiiieiit% 
inspired by the sentiments whieh fennd expression in the 
Deelaration of St Peteisborg of the 89th November (Ufh 
Deeember), 1868, and being desirous of renewing the 
deelaration of The Hague of the 89th July, 1899, whieh has 
now expired, 

Dedaret 

The Contraeting Powers agree to prdhilnt» tor a period 
extending to the elose of the Third Peaee Conf erenee, the 
discharge of pro jeetfles and explosives from balloons or 1^ 
other new methods of a similar nature. 

The present Deelaration is only binding on the Contraet- 
ing Powers in ease of war between two or more of them. 

It shall eease to be binding from the time when, in a war 
between the Gontraeting Powers, one of the belligersnts is 
jobied 1^ a Noneontraeting Power. 

The present Deelaration shall be ratified as soon as pos- 
sible. 

The ratifications shall be deposited at The Hsgna. 

A proeh'Verbai shall be drawn up reoording the rees^it 
of the ratifications, of whieh a duly certified eopy shall be 
sent, throui^ the diplomatie ehannd, to all the C ontr ac tin g 
Powers. 

Nonsignstoiy Poweis may adhere to the present Dedara- 



moBABOiiro FBOJionui iiom BJOLOom. Mi 

tkm. To do My th^ miiit mike known their adheokm to 
the Contracting Powen by means of a written notifleatioa, 
addreaaed to the Netherland Goyernment^ and eommiini- 
eated by it to all the other Contraeting Pdwem. 

In the t¥ent of one of the High Contraeting Parties do- 
nooneing the present Declaration, each dennnciation shall 
not take effect nntil a year after the notification made in' 
writing to the Netheriand GoFemment, and forthwith eomp 
mnnicated by it to all the other Contracting Pdwers. 

This dennnciation shall only haye effect in regard to the 
notifying Power, 

In faith whereof the Plenipotentiaries haye appended 
their signatures to the present Dedaration. 

Done at The Hagne, the 18th October, 1907, in a single 
copy, which shall remain deposited in the archives of tiie 
Netheriand GoTcmment, and dnly certified copies of which 
shall be sent, throni^ the diplomatic channel^ to the Conp 
tnusting Powen. 



VITA 

Pensf BoidweD, tba author of this wori^, reoehod tba degreo 
of Baehdor of Loiten from tbaUnivenity of Califomim in 2888. 
In 1900-1901 bo was Sehiff FeDow in tba Sdiool of Politioi] 
Sdenoa of ColvmbiaUnirenityand in 1904 noetrad tba dagraa 
of Baebakr of Lawa and in 1906 tba dasiaa of M aatar of Lawa 
from GotunUa Uni^aialty. In 1904 ba waa awaxdad tba 
Robert Nozon Toppan Priaa. In 1906 ba waa appointad A^ 
aiatani PtofoMor of Law in tba Unhrenity of MiaKnui and in 
1906 Pkofeasor of Conatitational Law in tba Law Dapartmant 
of tba Uni^amity of WaaoaiL 



I^DEX. 



INDBX. 



mm U 

Additi€iial Artidei of 1868, lee Ommi CMMiilibiiiL 

Alia Bnaiiy, Flea o^ not f^TonUy reoemd in 
courts 209; tffeeted hj H XXm(b), 810, 884. 

Alkmation^ fee Forfmharu. 

ABim, deelaratioro of war againity unneoeiMiy imder cU 
ziili^ 87; enemy diezader of not to be deteimined by Ibo 
ooiirl% 819. 

Andri^ banging o( 6L 

Ai^gaiy, ni^t ot 818. 

Aimiitioei^ teniiinol<^ off, 894; wbat ia pennitted iuriaf 
■bonld be ezprenly atipii]ated» 896; rigbt to aopply pn^ 
Tiaioiia dnrli^ 896; notification o^ 896; neatnl aone 
darings 896; TiolatioBa ot 896. 

Anni^ azbaleat or eroaibow and machinea tbrowing projeetilea 
probibited by decretal of Innocent III, 81; pifjndiea 
againat fireanna in Middle Age^ 88; propoaed limitetioBa 
aa to Add gone and mniketa at tbe Firat Peace OonflBr- 
enoe^ 180, 131; na^al gone and annor plate^ 184; wkh 
of flie Fiiat Pfeace Conference aa to na^al gone and 
ziflei^ 137; canaing nnneoeaiaiy aoffering probiUted, 888; 
aee aIio« Ptoj^Mm. 

Art treaauea, reapeet for, enjoined by Orotiii% 88; adane 
• of by Napdleon, 61; prior to Napoleon, 61; dnr^ boa^ 
bardmenti^ 888, 890; prohibition of injnry to^ 880. 

Aryani^ bi^ atandarda diown in early war-pnctka o( 8L 

Aflaaiaiwation, of William flie Sileni^ p. 80; probibition ef in 
H XXm(b), 888. 

AamnU^ aee Piaag§ tmd BambaritumL 

Ayala, Batbaaar, life and woik ot 97. 

BaUoonial% aee Spim. 

Balloona, tbrowing ef projectflea from, 18(^ 187, 879, 86a 

Beaata of Bnrdcn, aee Jfoneaaitelaiila. 

Bdli, Pierino, life end imk ot 86. 

Benard, Moantegiu^ on flie period of peace foUowiiv Iho 
Napdeonie wax% 64. 

866 



Mt tVOK. 



•rv U 



Boer BepaUki, juinwatifln o^ 144; seo Soufk Aftkm War. 

Bomberdmenti^ pnctioe with regard to in Fnnoo-Oerman 
War, 89; undefended towns not to be labject to, 286; 
of resident portions of towni^ 287; neoessitj of warning 
except in cases of assanli^ 287; sign for protection during^ 
288. 

Bombardments by Naval Fbroes^ wish of tbe Pirst Peace 
Conference* witii regard to^ 137; contention of Second 
Peace Conference on, 187, 288; of places gnarded by 
minei^ 288; for deigning to cmnply witii requisition^ 
bat not to compel contribntioni^ 290; sign for protection 
darings 290; warning necesssry if military dtoation per- 
mit% 291^ 

Bribery, use of encouraged in Eastern Boman Empire^ 
14; inciting to treason or desertion unlawfol, 288. 

Bmssds Conference, first steps towsrdi^ 101; action of the 
Busdan Gofemment, 101; attitude ii the Britidi Gorem- 
ment^ 102; rules adopted by, 108; oiganization d^ 108; 
attempt to limit combatant dasi^ 104; military oceupa* 
tion, 106; contributions and requisitioni^ 106; p ropoeed 
revision irf the Genera Conyention, 108; notable members 
o^ 106; adyerse report of Britidi dd^gate^ 106; non* 
, ratification of the Dedaration by the Britidi Gotem- 
mcnt^ 109; approral of Dedaration 1^ Institute of 
Intemational Law, 110; appredation o^ 111; Hague 
Begulations based on Brassds Dedaration, 112. 

Bureaus of Information, see Pfuonsft o/ For. 

Burid Places, respect for urged by Grotiui^ 88. 

Bynkerahodc^ life and woik ot 48L 

Capitulation^ faithful dl>ser?ance of obligatory among Sara- 
cenic 18; in the Eastern Boman Empire^ 14; powers 
of a commander with respect to^ 294; property not to be 
destroyed between signing and execution ot 294. 

Chfldroi, see jyencaw bato ils. 

China, Boxer uprising in, 168. 

Chino-Japanese War, Chinese leddent in Japan, 117; com- 
batanta, 117; taking of Port ArOinr, 118; treatment of 
the dead, 119; of prisoners of war, 119; of priiate pro^ 
erty, 120; administration of occupied t err ito ry , 120; ooB* 
duct of t^ Chinesic 12L 

Oiifaliy, infiuence of on war-practicsc % 21. 



ssr 



•fv U 



Civfl War, instnieiioiii for tbe gOTemment of Om annks of Om 
United Statea In the field, 73; their importanoe, 74; flieir 
defect^ 74; Confederate aet of aeqnestration, 76; Federal 
oonfiaeation act of Jnly 17, 1868; the captoied and 
abandoned property ad, 76; aetion of General Sherman 
at Atlanta, 77; demUtioa of the Shenandoah Y%Skl 
bj General Shwidan, 77; ozganisation of the Partiian 
BaBgera by the Confederate authorities 79; their aban- 
donment, 80; the Tort PiUow ICaaaamb* 81; txcatmcni 
of priionera of war, 88; de faeh go?emment% 88; the 
United Statea Sanitary Commiarion, 88. 

CiTil Ware, declarationa of war not neoenary in, 10; priaonera 
of war did not become davet among the Bomana ii^ 
10; nor among the Saraoeni^ 13; reaaona given by Montlne 
for MTagery in, 80; abounded dnriqg the Bebrmatlon, 80. 

Clergy, see Nana m baian i s. 

Codification^ Saracenic wai^«ode, 18; Dr. Lieber^a Inatmo- 
tion% 73; Bmaaela Declaration, 101; Mannal of Qiforj^ 
113; goremmental manoali^ 116; notable army rcgnla- 
tion% 116; the publication of the German atafl^ 116; 
Buaaian r^gnlationa of July 1^ 1904^ 178. 

Combatanti^ dislike for irregular troops in the time of Louia 
XIV, 46; Lord Chatham'a protest against the employment 
of Indian aUiea, 61, 838; organiation of Partisan 
Bangers by the Confederate authoritiei^ 78; their aban- 
donment, 80; employment of Algeriana In Franco-German 
War, 80; the franc-tireuri^ 80; attempta to define at 
the Brussels Conference 104; excesses of irregular troqpa 
hi Busso-Turidsh War of 1877, 118; the Chino^apaneaa 
War, 117; use of natlTea m the South African War, 
140; combatant diaracter of Boen^ 140; threat of ban- 
ishment against the Boers^ 168; q[ualifleations prescribed 
by Hague B^ulationi^ 888; not restrictife^ 881; ordem 
from headquarters not necessary, 881; necessity of fixed 
emblem, 838; H I applicable to both occupied and unoo- 
cupied territory, 888; leveea en masse in unoccupied te^ 
ritory, 838; unsuccessful uprisings in occupied territory, 
888, 808; temporarily su ee c tsfu l uprisinfi^ 881^ 888; 
Declaration of Paria, 884; conrasioii <rf mendiantmsB^ 
886; ri^ts of noncommissioned nssels, 886; see abo Nm^ 



•TV U 

of wWy tntcbiiy in 
illegal, 86^ 167, 199; trettment of Oennaos In Franeo tl 
ootbmk of Fnnoo-Geniiin War, 96; Chfaaaa in Japan 
In Ouno-Japanaaa War, 117; eipulaion of Gnds from 
Turkqr In 1897, 188; treatment of rerident aubjada of 
enemy power In Soath African War, 148; in, Boaa^Jap- 
aneae War, 167; effect ol^ on l^al relation^ 800; on 
treaties 801; on commercial interoouae^ 808; tzeatmcnt of 
leaident dtiaeDa of other billigeren^ 808; tiigtki to with- 
draw 8ood% 804; coniiacation of priTate dd»t% 80^ 884; 
* aUtna of enemy merchant ahipi^ 806; anapenaion c< 
tncl% 806; annnlment of oontracti^ 806; inaoranea 
tncl% 809; r^t of alien enemy to ane^ 809, 884; T 
810; propoty of dtiaena domidkd In encmy'a coontiy at^ 
816; aea alao Duiaraiumg e/ War. 

Concentration, aea J^ojieemftalaiiia. 

Oonqnea^ moderation In niged hy Grottiu^ 84; effect of Befo- 
Ivtionaiy and Napoleonic Wan en doctrine o^ 68; old 
doctrine of, 68; effect of doctrine of poatliminhim on, 68; 
supplied Ifae need for aome reoognind anthority in ooen- 
pied territory, 66; reanltcd In diange of allq^anca dop- 
ing war, 66; atndiea of PioL Lameire on, 66; canaea 
that led to flie abandonment of the old doctrine ol^ 66; 
ahattering of the preaomption of int e n ti o n to apprapriate 
nnlimited territmy hy the Frendi Betolntion, 67; dedrion 
of Fiendi Court of Caeaation In 1818» 67; caaa of the 
coniiacation of dehta and domaina of Elector of Ileaae 
Caawl 1^ Napoleon, 68; dd doctrine of made nnnataral 
to the lay mind by the diange in military aeience and by 
the growth of national aentiment^ 69; diangea in dd 
doctrine of iind adentMc apreenon in the work of 
Heffter, 60; anrfiyal of old doctrine of in dkim of the 
Snpreme Gonrt^ 60; annexation of Boer BcpnUici^ 144; 
prodamationa fdlowing anneiatioii, 146; aea abo JTtK- 
faiy Oeevpelien. 

Oontribnttona^ diange to from {dDage^ 1, 48; Mardial Saxani 
method of leiying^ 48; during the nanoo-Geiman War, 
96; lindtattdna pr opoaed and agreed to at Bmaeda Ooih 
ference, 10^ 814; Hague B^dationa on, 81^ 817; of 
leaa importance flian reqpdaition^ 816; receipla for need, 
not be indnnnitiaa, 818; aee abo B^ jmUi k m 



sw 



mUf9f9til9B9 999 w9 



Cnuttwdl, OliYor, Kfosal to give quarter at Dro^ieda, VL 

Cuban Debt, lee BpanuikrAwMncam Wmr. 

Dana, B. Hi, argnmeDt of against exemption of prmte prop* 
erty at aea from captiiit» 71. 

Dead, treatment of in Chino-Japanese War, 119; eare for, 
252; eraminatfon oi^ 262; treatment it during Bnmo* 
Japancae War, 842. 

Debti^ fee JPnaaif PtopMiff and MUUarff Oeeupaium. 

Declaration of Paris, artidca of, 66; the work of tbe Congress 
of Paris, 66; changes in the attitude of Great Brit- 
ain, 66; position taken by fht United Stat^ with regard 
to^ 67; principles of likely to be respected even by non* 
signatory powen^ 67; oonversion of merdiantmen into 
warships in Snsso^apanese War, 170; Hagne ConTention 
sapplonentary to, 188» 286. 

Declaration of St Petersburg, suggested by proposed nae of 
explodTe bullets in Russian army, 87; work of the Inter- 
national llilitary Commission, 88; text o^ 278; mi§> 
interpretation of preamble of, 279. 

Dedarations of War, daborate among the Oredn and Ttomans^ 
8; not required in d?il wars, 10, 88; in private warfare^ 
16; obligatory in Middle Agei^ 19; letters of defianos^ 
19; herdds-at-arms snsperseded by permanent embsssie% 
19, 86; neoesdty of dmahd for satisfaction and denial 
or dday of justice, 86, 167, 199; were the test of legal 
war raflier than warnings to the enemy, 87; not neoesssry 
against alliei^ 87; influence of maritime pretendona and 
strug^e for trade and territory in the cdonies on neess- 
dty of prior, 88; influence of grants of letters of marqne 
and reprisd and sequestrations of property prior to^ 89; 
memories of the old rule with regard to, iO; not a prior 
requidte to hostilities hi Lord Stowdl's tim^ 41; no 
spedd form for, 42; had not become a prior requidte 
at outbreak of Russo^apanese War, 166; Hague Conten- 
tion witii regard to^ 186, 198; see also CommeiioMiaiil of 
Far. 

Derastation, restrictioDs on Idd down by "^etoria, 27; by 
Orotiua, 82; of the Palatinate^ indignation arooaed by, 
47; rulea with j^ard to said by de Martens to have beoi 
bid down by Great Britain in tbe War for American In- 



m9 $9 

depepdmcej BO; 9t Urn Shenmdoih YaDij bj GeDml 
EDmidaa, 77; whoi pioper, S84. 

Eastern Boman ^pin^ war-pracUee ol^ 14. 

Embargo, In tli« South African War, 148; aa a maaamo of 
force falling abort of war, 197* 

Enemy CSharacter, liability of dmniciled nentrala to militaiy 
aerfice^ 818; attempt to place nentral in a mora fatored 
poeitioii at Second Peace Conferenoi^ 818; Engjidi and 
Frendi rolei^ 816; commereial domkil, 816; honaea of 
trad^ 816; of occupied te rr ilo rj, 818; of territory in 
da faeio poaaeaalon of enemy, 819; peraonal nnioni^ 819; 
allien 819; crewa of merdiant ahipi^ 888; nattonala of 
boatile party not to be compelled to partic^te in military 
qperationa againat their country, 886; see alao Bnmmg 

Enemy Pr operty, treatment of by the Bomani^ 9; by the 
Saracena, 18; juatiitcation of aelsnre of, aooiwding to 
Victoria, 87; righti orer, according to Grotiua, 88; aequea- 
tration of dd>ta 1^ the Confederate States^ 76; treatment 
of in Chino-Japaneae War, 180; confiacataon of priTato 
debta, 80^ 884; neutral property identiHed with bd- 
ligerent territoiy, 818; neutral railway material, 818; 
ri|^t of angary, 818; gooda of dtiiena domiciled in 
enemy'a country at outlnreak of war, 816; prododa of 
enemy aoil and ahipa flying hia flag^ 816; tranafera of 
pr op e r ty in franaita, 817; ownerahip of conaigned gooda 
and nonrecognition ot lieD% 817; tranaBera of afcdpa dnriqg 
war, 818; importance of old priae mlea leaaened by mod- 
em condition^ 880; old rulea aa to when title veate^ 
888; later rulea aa to condemnation by priae oourl^ 888; 
international aigniiKcanee of theae rulei^ 884; what neo- 
eaaary to conatitute capture^ 886; deairability of adjudica> 
tion, 886; priaea in nentral porta, 886; deatruction of 
captured ahip^ 886; ranaom, 887; not to be conflacated, 
810; propeity of localities diurdiea^ eta, treated aa 
priTate property, 888. 

Bn^Uah War-Praetica^ more adranced than on the continent 
in Ihe Ifiddio Agaa, 88; under Edward m, 88; 
under Henry Y, 88; durfaig the War for American 
Independence, 60; dnriqg the War of 1818, 68; aee abo 
South African War. 



m9 t9 



XmOJi^ W8 JFoiMMlMlBllIlL 

EkptndiQg Bulletin tee ProfeeKlm. 

Biplodye and InflummaWn Bidleta^ tee Proj^eUUi and Deo- 
lamtUm of 8t PeUrAmrg. 

Fliit Peace Catdetenn, Rnaaiaii proposa], 128; labjeeia tor 
oonsideratioiiy 128; powera repmented, 129; oiganiatioii 
ol^ 129; powdeia, ahdli^ ezplon?ea and field gom, 180; 
throwing of piojecUlea fram balloona^ 130; nnuketa^ 181; 
eipanding bulletin 132; poaitioB of the Britiah Qofom- 
meni^ 132; of the United Statei^ 182; objectiona of Capt 
Croner, 138; work of the naval aoboommittee^ 188; 
prohibition of projeetilea for q>reading aaphjziating gaae% 
184; naTal Bed Croaa conyention, 135; rcgolatioB of the 
lawa and eostoma of war on land, 135; men of qieeial 
diatinction, 186; declaration of the United Statea aa to 
exemption of priyate property at aea, 186; final ael^ 186; 
appreciation of work of, 137. 

Flahennen, agreement between Franda I and Chaa. Y, exempt- 
ing them from mdeatation, 80; dednon of Siqmme 
Court on exemption of fidiing-yeaaeia from captim^ 124; 
Hagne Oonyention aa to exemption of fiahing yeaada^ 190^ 
221; aee alao NoneomhaUmio. 

Flaga of Tracer bearera of inyiolable in Eaatem Boman 
Empire^ 14; improper nae ol^ toibidden, 288^ 288; 
dedarationa not to reodye for fixed period, diaapproyed 
ol^ 293; bearer of may be blindfolded, 293; drcomatanom 
nnder which bearer of kaea hia inyiolability, 294. 

Floating minei^ in the Bnaao^apaneae War, 170; oonyention 
of Second Peace Conference on, 187, 280. 

Foreati^ catting of treea prohibited by Baracena, 12; treat* 
ment by tiie Oennana of Frendi, 96; cfficiala charged 
with care o^ 308; ri^ti of milituy ooenpant oyer, tt9. 

Forf dtorea, in the South African War, 142. 

Tort Pillow Maaiacr^* acooant ot 8L 

Franc-tirenr% aee Comhoiamii. 

Franco-German War, importance of in deydopment of lawa 
of war, 89; bombardment of towni^ 89; empl<^ymettt of 
aayage troopa, 90; franc-tireui^ 90; the diarge of ficti* 
tiona occupation not proyed, 92; meaanrea taken to pr^ 
yent eecape of inhabitanta intending to join Frendi army, 
93^ 95, 803; burning of honaei^ 94; nae of aocaUed hoatagea 



on trains 94; trials fcxr militaiy offemei^ 94; midfeiitB at 
outbreak of war/ 95; ballooniat% 96; oontribiitioiia and 
reqwiaiti<wi% 96; treatment of Frmdi foreBt% 96; prirate 
propertj at aea, 97; priaonera of war, 98; administration of 
oocnpied territoiy, 98; levying of taies during^ 818; 
credit given by Frendi Govenuncnt for payment of taies 
to Geraiaiii during^ 818. 

Franklin, Benjamin, Tiews of on privateering and exemption 
of private property at sea from csptore^ 68; artide pro* 
poaed by Urn for Treaty of Peace of 1788, 69. 

Fiee Sbipi^ Fiee Ooodi^ Dedaration of Paria established prin- 
ciple of, 66; abandonment of traditional EngUak position 
aa tOb 66; see also PrivaU Properiif §i 8$a. 

Geneva Conventions^ first snggestions of the convention of 
1864, 84; the conference of 1868» 84; tiie international 
congress and the convention of 1864, 86; reoeptkm of 
the convention, 86; additional artides of 1868, 86; ob> 
servance of daring Franco-Oennan War, 89; p ropoaed 
revision of convention of 1864 at Bmssds Conference^ 
108; trooUe over the Red Cross in the Bnsso*Tnrkish War 
of 1877, 118; naval convention, 186; desire fipiesscd 
by Hrst Pesce Conference for revision of convention of 
1864, 186; steps towards revision, 176; the conference of 
1906, 176; preliminary woric of Bed Croea Bodetiea and 
Institate i/t Intemataonal Law,* 177; organiatton of con- 
lerence» 178; merita of the convention of 1906, 180; naval 
convention of 1907, 188; applicatton and execntioii o^ 
866, 276; repression of abuses end infrsctions^ 866, 877; 
landing partiea are subject to land convention, 877; aee 
abo Biek, Waimdid and ShifmndML 

Oentilia^ Albericn% life and woric ot 87. 

German Stafl; pnUication o^ 116. 

Gennanic Migrations^ war-pnetice duini^ 11. 

Graeco-Torkish War of 1897, attention paid by Toriddi au- 
thorities to modem standardii, 181; ezpnUon of Greds 
from Turkey, 188^ 

Qrodc war-praetloi^ 8l 

Grotiua, early life ol^ 88; advocacy of the fteedom of the 
seaa, 88; edle of, 89; hia last yista, 29; greatneaa of, 
29; reasons for writing on the law of war, 80; distinction 
between law of nature and nations^ 81; carefulness in 



not filaiming for hit own opinions flie foice of initiiated 
law, 81; ofnnion of on li^tt a?er noncmnbetant% 8t; 
on limit! to iiTaging^ 88; on li^t of aoqviring enemy 
property, 88; on imnaom, 84; on conquest^ 84; infliiwwie 
of hie wori^ 84; on tbe piupoee of dederetioiis of war, 
87; deelaratione not neoenarj against allici^ 87. 

Oncrrillas, see Ce m ft eleiili , 

Guides^ li^t of oceapent to make inhabitants sene ai^ 810. 

OnstsTns Addphns^ admiration of tor Grottns^ %, 84; 
hi^ standard of war>practioe ot 85; seisore of libraiy 
by as a measoxe of reprisal, 81. 

Hague B^gnlationi^ based on the Bmssds dedaration, lit; 
adoption al Krsi Peace Oon&renoe^ 186; emendments 
at Second Peace Conference^ 185; sanction, 888; con- 
tention embodyiog^ 846. 

Heffter, first scientific czpression of modem doctrine of lIiU* 
tary Occnpetkm in woik o^ 80. 

Hindus war-pnctice among^ 8l 

Hostages, killing of for defslcationa of principals in Middle 
i^ee^ 81; ofrfnion of Victoria against potting them to 
desth, 87; nse on trains of sooelled, H, 161, 806. 

Hnsbsndinen, see Nm^eombaimUi. 

Institate of International Law, organiation and pnrpoee ol^ 
100; approfal of woik of Bmssds Conference l^, 110; 
ICanoal of Oxford ol^ 113; efforts of towards revision 
of Genera Contention, 177; mlee of for destmctionof 
captnxed diipi^ 888. 

Insurance^ contracts of sgainst gofemment of insorer, toid, 
809. 

Intra Ptauidia, Boman doctrine of as applied to prisoners of 
war, 9; derdoped by eaily writer^ 9; as a part of flie 
law of confoesl^ 58; as applied to the capture of di^e, 
888, 884. 

Italian wai^ractic^ mOdncss o^ 84; HsdiicTdli en, 84. 

Law of War, necessity of resorting to fimdamentd prin^ke 
on, 1; tile avoidance of nsdese injnry, 8, 81;- the thesiy 
that war is a rdation between government^ 8; adtantagca 
thereof 8, 106, 889, 319; the statonent of Bonsseaa a 
loq^ generalisation of the practice of his tims^ 8^ 47; 



864 



m9 U 



diaage in the ehancter of wan nnoe Boiineaii» 8» 60; 

letsoDB agtinit admiflnon of above theory^ 8» 71, 78, 108» 

107, lis, 318, 319; poesible danger to nataonal eriiitence, 

4; Talue in theoij, 6; Gennan doctrine of neeeesity, 6; 

general inflnenoea on, 6; Dana on, 71; Oenerala Sheridan 

and Sherman on, 78; Yon Moltke on, 118; progrenive 

diaract^ ol^ 184. 
Ubrariei^ eee Art Trtamm. 
lAcenneM, now generally obaolete or local, 810; rolea with 

regard to^ 81L 
UAer, FnnoB, preparation of the inatroctiona for the annka 

of the United Statea in the Held, 78. 
Loeder, woric of on the reriaion of the Genefs Oonfentkni, 

17ft. 
Manual of Oxford, the work of the Inatitate of Inten!iational 

Law, 113; letter of Von Moltke inapired bj, 118. 
Marcy, Wm. L., attitude towarda the Declaration of Pari% 

Marinera Shipwrecked, aee Jfowcoi tal flwfa. 

Mark, lettera o^ lee if or^ue and BeprimL 

Marqae and Bq^riaal, lettera o^ early oonfnaion in tenni- 
nology, 18; ieananoe of prior to dedarationa of war, a 
detemdning factor in making prior dedarationa nnneoea- 
lary, 89; done away with bf the Dedaration of Pari% 
41, 6ft. 197. 

Martial Law, prevention of eacape of persona intending to Join 
the Frendi army by the Germana, 93, 9ft; the homing of 
honaea and rillagea by the Germany 94; pladBg of no- 
tables on tiains, U, Iftl; triala for ofEteaea againat, 94; 
punishment for fareadi of neatrality oath in South African 
War, 147; burning of farma, 148; collective responaiba- 
• ity, Iftl, 316; extraordinary prodamation duriqg Busso» 
Japanese War, 171; notice to the inhabitants^ 801; of- 
fenses ariaing from noncombatant diaracter of ofltenders^ 
801; acta of violence 308; unancoessfnl uprisinga, 808; 
acta, not riolative of the lawa of war, but injurioua to 
the occupant, 308; ddivery up of arms, 808; joining llie 
national army, 803; penaltjfa of, 804, 80ft; uae of hoirtagea 
on trains, 30ft; vicarious pnnidmien^ 80ft; rcpriaals, 80ft; 
flnea, 817. 

Merdiant Shipa, in por^ etc, at outt>reak of Spanisb-Amari- 



aes 



•rv U 



cm War, US; dijs of grace aUowed in BnaKhJapaneia 
War, 166; ainkiiig of JapanaM^ 168; conTeirioii cif into 
waidiipa in Biin»JapaneM War, 170; oonfention on con- 
Tenion of, 188, 235; convention on atatoa of at onfiireak 
of hostilities 190^ 205; enemy eharacter o^ iljing enemy 
flag^ 216; tranafcr of dniiBg war, 218L 

Merchants aee J^oftoofatafanla. 

Middle Ages lawleamcaa ^ 14; prifate wais 14; eaily die^ 
bj the temporal powers 15; dieda by the dinrdi, 16; 
Oferthrow by the riling power of the etats 16; rtpriaals 
17; approadi the diaincter of ordmaiy judicial proceed- 
ings 17; did not break the peaos 18; coofnaioii in termi- 
ndQgy, 18; dedaration of war, 19; dying out of the 
enaiaTement of priaonera of war, 19; aehititDtion of ran- 
aom, 20; de?dopment of diiralry, 21; prohibition of cer- 
tain weapona and the oemption of noncombatants 21; 
dark aide of medieral waifars 22; practice in the Bn^^idi 
armies 22; war-piactice of the Swiaa and Italians 24; 
war-practioe at tea, 24. 

Military Ooeapation, qoeationa anaiag nnder, f ormerfy treated 
nndcr conqoeat^ 62; canaes that lead to the modem doc- 
trine of, 56; intention to appropriate nnlimitpd territory 
diattered by tiie Frendi BeiolntioD, 57; Frendi and 
German dmitions 57; diange in military adencs 59; 
growth of national aentiment^ 59; adentifie ttpimian of 
modem doctrine ol^ in the work of Heffter, 60; aarmal 
of obadete doctrinea in iKcfa of the Supreme Gonrl^ 60; 
the Supreme Coorfc on d§ faeio governments 82; flying 
colnmna in the Franco-German War, 92; adminiatration 
dnring Franco-German War, 98; treatment ol^ at Bma- 
ada Conferencs 106; in the Chino-Japaneie War, 120; 
moat be effectiYS ^^07; how br analc^gooa to Uodmds 
297; beginning and end d^ 298; anth«ity of occupanf^ 
298; dnty of oceopant to prc a cr v e social order, 299, 801; 
conflicting viewa of do^ of inhabitanta towarda occupanf^ 
800; dfil and penal laws not to be dianged dnr^ 
800; artide of Broaed Dedaration on continuance of 
oflBdala under, 806; oppoaition of Dutdi and Bdgian dd- 
cgates 806; offidala may rcngn, 807; politicd dBdala 
necenarily discontinue their functions 807; ked offidala 
a dnty not to^ 807 ; tax officials 808 ; fbnet oBdals 



see mtt. 



m9 t9 



S08; pottd, niboftd and td^gnph offidali^ 30T; cflidali 
in ehaige <tf nraBeami^ ete^ 809; oath of flddity may be 
leqniied of olBdak, but no dntj inocmaistait with al- 
kgianoe^ 809; n^i to compel inhabitanta to act aa gnidai^ 
810; no oath of all^iiaooa to be leqnixedy 810; leapeet lor 
funfly life and pritate property, 810; ri^^ of oonq^ant 
to other flian local tazei^ 818; mi^ioda of mfownng 
coUeetion of tazei^ 818; appropriation of moraUe pnln 
lie property, 888; public debt% 884; prirate meana of 
transportation and commnnicatioii, 885; mnnitioiia of 
war, 886; ah^ not coming nndor the ndea of na?al 
war, 887; aobmarine cablci^ 888; contraeta of exploitation 
during, 888; adminiatratire ocmtracti^ 829; see abo Oat^ 



ICIitaiy aerfiM^ liability of foreign reiidenta to^ 148» 818. 

Ifohamntfdani^ see Aaiwoaiit. 

ICoon^ war-practioe o^ more aevere than that of the Baracena, 
14. 

Hoynier, IL OnstaYC^ work ol^ in connection with the Geoefs 
Comntion, 84; on the rerinon of the con?ention of 
1884^ 17e. 

Hi^oleon, conilacation of debta and domaina of Elector of 
HeaaeCaaad by, 68; aeimre of art treaaorea by» ei; heaty 
burden of the armiea oC 68. 

Heceaaity, Geiman doctrine o^ ft. 

Honcombatant% inriolability of husbandmen amoqg the andent 
Hindus^ 8; acta of Tiolcnoe against women and diildren 
denounced among the Oreds and Womani^ 8; IdDing of 
women, children and insane prohibited by Baracena, 18; 
women and children became immediate prupe r tj d captors 
under Hussulmsn law, 18; mishandling of womsa fosfaid- 
den in Eastern Boman Empire, 14; priest^ monk% Uj 
broQier^ pilgrim% merchant^ laborers and beesta of bur- 
den not to suffer Tidence in private warCaie^ 18; women, 
deigy, studenti^ entojs, pflgrims^ witnessei^ merdianta 
on thehr way to a fair, and ahipwreAed maiinen^ not 
the subject of reprisal^ 18; diureh decree against in- 
jury to^ in Middle Agea, aomewhat of a dead letter, 88; 
Victoria on ri^ta against^ 87; Orothia on d^ta egaina^ 
88; concentration campa in South Africa, Iftl; their 
juatiftcation 1^ Lord mtchener, lfi8; their condne^ 188; 



Mr 



m9 $9 



dtaUiduDOii of aonei of refuge in tho Fhilipi^iiei^ 165; 
xe^Mei for, req[aired by H«giie BiegiibMaoM^ 810; m tho 
Mofiid Ltm. 

Obitiiiato ' B M a Hn o b, litQe mocj diowiL to Uioie guilty o^ 
in Middle AgH, M; not laiBeient to gtft ri^ to iSi, 
eooordiqg to Grotiiu^ 32; at an exeiiee for tbe Ulliif of 
the Caunese it Ftort Arthur, lU. 

Official^ aee MUUar^ OcompMm, 

Opening of Hoitilitie^ see DedanMam of War and Ooetw wee 
«Miil of W&r. 

Ornamental Woik% see AH Trmtwru. 

PadUe BlodndM» praetioe with legard to^ 197. 

Palmerfton, Lord, attitude towarda exemption (d prifate pnq^ 
ertj at aea from captore in 1866^ 67; in 18tt» 7L 

Pardl^ aee PriioiMfv cf For. 

Penlani^ early war^practice o^ 8. 

Philippinei^ war in Um^ 185; esfcablidmient of vmea of iefQg% 
158. 

Pflgrim% aee Jf onoMttelanli. 

FiUag^ change from to contribntioni^' 1, 48; followed a ao^ 
oeHfal aaaanlt in Greece and Bodm^ 8; in flie lliddio 
Agei^ 28; atoimiflg of dtiea. cnndfmnfd by Orotini^ 88; 
foiUdden eren when place ia taken bj aaaanlt 291t 
811. 

Poiaon, nae o^ ineanoeiTaUe today, 6; prohibition of ita nae 
in wdla and water oooraea by the Saracenai 12; prohibi- 
tion of ita nae bj Hagoe B^gnlationa, 288. 

Port ArOiiir, aee CUno^apoiMee and Bvmo^apmmB Fork 

Poetal coneapondenci^ exemption o( from capture^ 221. 

Poitliminiwm, Law o^ origin in Boman Law, 10; qnP^^*^^ 
0^ by early writen, 11; effect ol^ on doctrine of con- 
qoea^ 52; diatingoidied from doctrine of recapture, 224. 

Powden^ aee Pf^§Mm. 

Priaoneia of War, made davea in Greece and Boma^ 8; 
alio rdeaaed on parole and ranaomed, 8; doctrine of miUm 
framdia^ 9; did not become doTee in dTil war, 10/ 
effect of captore of a Boman dtiaen and of hia return to 
hia own conntxy, 10; the law of reverter or poetliminium, 
10; mutilation of without orden^ finbidden by Saracen^ 
12; women and minora became immediate pruperty of 
capton^ 13; adult male priaonen^ aent ba^ rdeaaed en 



•rv 10* 

xiDioai, eidnnged, or made dtTo^ 18; djing out of Am 
eniliTaneiit ol^ 19; by the tune of Oiotiiu^ 20; nibetitii- 
tioii of imnaom, SO; endaTement ol^ oonndeied illegal 
by YkionM, S7; ranflom aocceedcd bj exdiangc^ 80, 46; 
roles laid down by Grotins for detennining lanaom, 84; 
confinement o^ in priaon ahipi^ daring war for Ameriran 
Independence^ 61; treatment of during CiTil War, 88; 
during tbe Franco-Oennan War, 88; treatment o^ in 
Chino-Japanese War, 119; nae of fiolence towardi^ 887; 
private property of, 888; no ignominy attadiing to con- 
dition 0^ 288, 289; labor ol^ not to involTe participation 
in militttry operationa againit coontxy, 240; practice aa 
to deducting coat of maintenance from famingi, 240; 
dnty to care for, 241; penal power orer, 241; miarepre- 
eentation of ranl^ 242; pard^ 248; not compidaoiy, 244; 
triali, 244; persona attadicd tis bnt not a part of army, 
244; inquiry office^ 246; relief sodetiei^ 246; relaxation 
of diargea on letters and parcdi^ 246; pay of officers, 
246; rc^OQS lib^, 247; wills, 247; repatriation o^ 
247; peace and amnesty, 247; exdiange^ 247; sid^ 
wonnded and sbipwredrad falling into power of enemy 
ar^ 260; see also Sutso-Jiaponase For. 
Primte Property at Sea, capture o^ still considered a mesns 
of bringing pressore to besr on goreraments^ 8, 71; 
chsnge in the attitnde of Great Britain towards doctrine 
of hee shipi^ free goods^ based on belief that eaptore 
ol^ mi^t be done away with altogether, 66; porition 
taken by the United States with r^ard to^ in connec- 
tion with the Declaration of Paris, 67; eariy eiforts for 
exemption, 68; riews of Franklin, 68; article propcaed 
by Franklin for flie Treaty of Peace of 1788, 69; 
its embodiment in the Treaty of 1786 *with Prussia, 
70; attitude of the United States, 71; Dsna's argument 
against exemption o^ from csptun^ 71; hope for ex- 
emption lies in practice rather tiian in agreement^ 72; 
during'the Franco-German War, 97; in the Oiino-Jaj^ 
anese War, 121; declaration of the United States at 
First Peace Confersnce^ wish of the Conference^ 186, 187; 
effort made fbr eiemption at Second Pteaoe ConlBrence^ 
188; restrictions en ri^t of capture o^ 190^ 220; postal 



mn U 



M9 



221; Sshi^g Tineb and miill boats en- 
gaged in trad^ lU^ 221; penonal eSeel^ 222» • 

Primta Wan^ prefalenoe ol^ in Ifiddle Agei^ 14; eaily dMcka 
oily by the temporal powen^ 16; tbe dday of toviy daja 
before attacking rdatitei^ 15; reqidienient of a wamiog 
by A^honae YHf of CartOe^ and Frederick BaxbaioaBa, 
16; ehecka by Om chnreh, 16; the Tmoe of God, 16; 
the Brotheihood of Ood, 16; oterthrow ol^ by the riai^g 
power of the atate^ 16; anrfited longeBt in Poland and 
Bcottand, 17. 

PriTateerin^ abdiahed by the Bedaiation of Pirii^ 6^ 234; 
*>dii7* of United Statea not to reaort to^ in Spaniih- 
Amerkan War^ 128; conYerrion of merrhantmen, ITO, 
188,286. 

PMjeetaci^ inoendiaiy» prohibition ol^ by Saracens 12; map 
chinea for throwing^ interdicted by bmocent Hit 22; 
pr^ndioe against fixeanna in Middle Age% 22; ezploaife 
and inflammable bnlleta prohibited by Bedaxation of 
St Petersbnrgy 87; diargea of nae of e^odte bnDeta 
in Franoo-Oerman War, 89; attempted limitationa aa to 
powden^ ezploaiTcs snd shdls at the First Peace Ooih 
ferenoe^ 180; throwing o^ from belloona prohibitedy 180^ 
187^ 279, 860; expanding bnUeti^ 182, 179; fbr apreading 
asphyxiating gaae% 184, 279; expandiiig bnlleta in the 
South African War, 188; cansing umeeeaBaxy snflEBring 
prohibited, 288; see also BsOaonc. 

Public ArchiTOi^ see AH Trtatmrn. 

PufeDdorf; Samnel, life and woik ot 86. 

PnnitiTe Bzpeditioii, against COiina, 166. 

Quarter, refused by Crmnwell at Drog^eda, 86; decree of fhe 
conTontion against^ not obeyed, 62; Tlort PiDow Haa- 
sscre^* 81; tsUng of Port Arthur, 118; Boxer npriring 
in Chins, 166; even to thoie who here nolsted kws of 
war, 282; dedarationa of '^ quarter,* prohiUted by. 
Hague Bq;ulationi^ 288. 

Banaom, aee Prisoiisfs if War and jfnesif JRrofsrfit. 

Bsfagin^ see Dssotfalioii. 

Bed Crawent^ see Osnesa Coneenlioiia. 

Bed Cross, see OsnsMi Oonesiilisiis snd ffidk, WeimdMl and 
BhifwrnsMi 

Bed Croaa Sodetie% fhe ereation o^ dedded upon at Urn 



S70 



•rv U 



Oenefft Oonfereiiee of 1868, 84; nonnoogiiitiaii oi^ in 
ooDTentioii of 1864^ 86; reoognition <^ in subieqiiait 
ooiiTaitioii% 88^ 857, 868; prdiminaiy woik oi, mk Urn 
refisum of fli9 Genefs OoBfention of 1864^ 177; fnnetioii 
of, in CUB of flood, fiie^ etrthqoaket, ele^ 867; Add 
of aedTity gamaUy eonfliMd to wcond liai^ 868; nenfaral, 
868; maUrid of, 861; lioq>iiia ihipo equipped bj, 868. 

BdigioDs EBtaUiflhmenti^ respeet for, urged bj GroUni^ 88; 
p rotected by Hague B^gdatioDi^ 880. 

Benaiannoe, marked bj oa^ui of woika on the law Of war, 
86. 

Benavlt^ IC, importanoe ol^ at Second Peace Oonfereiica^ 
188. 

Bq^risab, prefdence of, in Middle Agei^ 17; approadi the 
diaracter of ordinary l^gd prooeeiling^ 17; eiemption 
of noneombatanta frran, 18; did not break the peeo^ 18; 
diatinction between Spedd and Oenerd Bepriia]% 18;. 
confiidon in tennindpgy, 18; ivoanoe of Oenerd Lettera 
by Charles n prior to a dedaration of war, 88; ranaik 
of De Witt on, 89; see Marque and Bepriial, LM$n ef. 

Bepriaala in War, r^alation of, omitted from BrnMda Deda- 
ration, 109; indnded in ICannd of Oxford^ 118; ndea 
aa to^ 806^ 

BeqiointioDi^ dder than Waddngton, 46; heavy harden o^ 
nnder Napoleo^ 68; not suitable to conditiona in Oeor- 
gia In the CirQ War, 77; during flie Franoo^teiman 
War, 96; limitattdna proposed and agreed to at Bmasels 
CoDferencfl^ 106; in fht Ghino-Japanese War, 180; ee- 
dedasticd estaUidmienta not necessarily free from, 811; 
r^gulationa as .to orders authorising^ 818; desird^iHty of 
cadi paymenta for, 819; most not inTdve eerrioes co n tr ai y 
to all^g^ancs^ 819; most bs in proportion to resonross 
of coontry, 819; persond services sdiject to^ 880; prop- 
erty sdiject tis dM; shdtering of tioops^ 880; quartering 
in draidics^ 881; food supplies^ 881; boardings 888; 
importance o^ 888; mifitary exeention, 888; see also 

Bomsn Ghnidi, those recognidng iti anthorify conddered as 
socoessors of tim Bomai^ people in the Middle Agea, 10; 
flie one institntion standiog &r law and order in flie dark 
period of the Middle Ages^ 14; see also MUdU Agm. 



S71 

•ra to JMfML 

Bomaa Liv, feir preeepU of, on wu^nctioa^ mada nradi of 
by mAj writen^ 8; acquiiBtion of propotf i& war ao^ 
cording to^ 9; itatoa of priaoneEa of war bj, 10; rdca 

^ aa to poafcltinfiiimii, lOi 

Borneo aaxly war-practioa o^ 8; later war-praetioa oi^ 11. 
BoQHeaii, atatament of^ on tfaa war-practioa of hia tima^ Z, 47. 
Bnaei^ in tba Baatam Boman Bmpire» 14; impraper, foibiddeBy 

^ 288; naa of unifomi of enemy for approadi, 888; indtiiig 

^ to treaaon or desertion nnlawfult 286; not in theaudfaa 

improper, 288. 
BowKJapaneaa War, onthreak of hoatilitiei^ 166; diplomatio 

^ erenta leading np to^ 167; military and naTal efenti^ 

168; Port Arihiir, 168; CSiemnlpo^ 168; diargea made 
by Boiaian Goremment^ 160; the breakiB^ off of £p- 
iMoatie rdatioD% 161; diargea of treadierooa interfos 

^ enoe with td^graph aernoe^ 162; daya of graci^ 166; 

Rntaiana reaideat in Japan, 167; Japaneie reddest in 
Boiaian territory, 168; linking of Japancae nierdiantnien» 

^ 168; threat to treat wirdeaa operatora aa tpkM, 169; 

floating minei^ 170; oonTeraion of merdiantmen, 170; 
care tm the aide and woonded, 172; Baaaian and Japancae 
B^golationi^ 178; information bnrean, 882; rfgnkfaona 

V ' aa to priaonera of war, 834, 836; atatistica aa to priaonen^ 

836; nonriahmeni of priaonera, 336; allowance^ 837; 
plaoea of internment^ 337; reading matter, 337; podal 
aerfic^ 338; penal law, 839; empli^yment^ 840; free 

^^ promenade and rcddenoe in priTate hooae^ 840; treat- 

ment of Bnaaian aanitary peraonnd, 342; gifta and rdief 
in kind, 342; care for the dead, 342; inatroctiona to 
reconcile differenoea in treatment of priaonen^ 848; 

\ repatriation of priaonen^ 348. . 

Bono-TurUdi War of 1877, trooUe orer the Bed Oroa^ 112; 

I inegolaritie^ lit. 

'^ Saracenic war-code o^ 12; the waging of war a rdlgjooa duty, 

12; preoepta of kindneas and durahy, 12; treatment of 
priaonen of war, 13; of enemy property, 13; oompara^ 
titdy mOd treatment of unorthodox Mnmohnani^ 18; 

\ actual practice among ttie Mohammedana not nnttonH^ 

18. 
Second Peace Conference, convocation o^ 181; 
and rnlea o^ 182; diTiaion of work among 

\ 



n% 



mn to 



183; 4gii]]if of Final Act, 184; woik oi^ 184; laws 
and euatoma of war on land, 185; opening of boadlitifli^ 
t 186; diidiaiging piojectflea fram balloon^ 187; bom- 

bardment bj naTai foreei^ 187; antomatie aobmarino 
oontaet niinc% 187; naval Bed Croaa oonTcnIiony 188; 
oomenion of nieRiiantmcn» 188; effort for cxanpUon of. 
prifate property at aea, 188; qpedal reftiieUona. on the 
ri^t of captor^ 190; atatna of enemy ahipa at oaOneak 
of boatilidei^ 190; fonnal parta of oonTentioni^ 190; 
Final Ae^- 199; widi for a Tbird Fteaoe Coifereno^ 199; 
aignatoriii^ 198; ippreeiationy 198. 

SbfUa^ aea JPro/Miaaa. 

Sberidan, General Philip H^ deraatation of fbft Shenandoah 
YaUcj hj, 77; on the fundamental princ^lea of the law 
of war» TBl 

Sherman, General Wm. T^ action oi^ at Atlanti(, 77; on the 
nature of the CMl War, 78. ' 

8id[^ Wounded and Shipwrecked, incxeaaed care for, in period 
of Lonia XIY, 46; United Statea Sanitaiy Oommiaaion 
during the CMl War, 88; care for in ChinoJapancae 
War, 119; in the Graeoo-Tnrkidi War of 1897, 191; in the 
Sooth African War, 141; in flie EnaaaJapaneae War, 
179; vnanoceaafol bdUgerent to leare matoial bdiinj^ 
949; on bJling into power of enemy are priaonera of war, 
900, 976; anthoriiy to enter into atipnlationa, 960^ 976; 
polking the Add of battle, 969, 976; examination of the 
dead, 969^ 976; appeal to chaiiiy, 953, 971; d^fl hoqpitali^ 
954; reapeet due to moraUe aanitaxy formation^ 954; 
protection conditioned on nonbelligerent action, 956 969; 
aanitaiy formation may be defended, 956, 971; detail 
of peraonnd left to goreinmenti^ 956; djatinction between 
aanitary peraonnd and thoae temiwnrily ddia^ 957; 
▼dnnteer dd aodetie% 957; nentraL aodetiei^ 958; duly 
of peraonnd to remain, but d>ligation to aend flicm bai^ 
whoi no knger indiapenaable^ 959, 971; peraonnd to 
reodfe pay fai force in captor'a anny, 960; oompoai- 
tkm ot moraUe aanitaiy formatiou^ 960; llxed eatdiiriH 
mentis 961; matMd of dd aodetio^ 961; oonfoyi^ 969; 
militaiy vdiidea temporarily need for, 968; ^teddie^ 
dgn <Kf the Bed Croai^ 968, 970; aign for meana of trana- 
portation, 968; peraonnd entitled to aim bailgei^ 964; 



an 



•ra to 



miillGtta of identitj, 264; flags for bdligennt loniift- 
aooM, 265; for oential fonnotioiii^ 266; mOitaiy hotintal 
iliip% 267; piifiio and neatral iMMpiial ifalpi^ 268; 
oontnl ofcr lioqdtal diipi^ 269; aide wardi^ 270; ri|^ 
to demand thoae readied bj merehantmen, 272; bj wai^* 
ahipi^ 278; landing o^ at a neutial porl^ 275; aee alae 
Om^$fm OoMPiKliaaa. 

Soto^ Dominfeni^ life and work oi^ 26. 

Soatti African War, eipanding bullet^ 138; nae of natifeB 
aa aoldien^ 140; coBBbatant diaraeter of Boer% 140; 
forfdinrea and a]]cnationa» 142; fommandeffriiy of Biit- 
idi aabjecta, 148; treatment of resident eabjeds of tte 
enemj» 148; annention of tbe Boer Bepablic^ 144; 
prodainationa following annentioo, 145; flie oath of 
nentrality, 146; burning of fann% 148; maintenanee of 
linea of cmninnnifation% 149; nae of notablea on trains 
151; eoUeetife raponnbility» 151; concentration cam]% 
151; benidmient firodemation, 158. 

Spanidi-American War, largely maritime in diarader, 128; 
neatral diipa allowed to dear for Spanidi port% 124; 
case of the Paqnele Habana, 124; flie Cuban ddy^ 125; 
payment by Spain of interat aceroing dnring war on 
ticaiy oUigatkmi^ 127. 

8pie% hanging of Andil^ 51; threat by BiamarA to tieat bd- 
loonista a% 96; threat to treat wirdeaa operatora a% iB 
Boaao-Japancae War» 169; defined by H XXIZ, 291; 
balloonials nol» 292; entitled to trial, 292; not liable to 
panidiment tot aucueaafal attenqpl^ 292b 

Snbmarine CaUee^ adnre and deatmetion o^ 828. 

Swiaa War^praetieii, in the Middle Age^ 24. 

TvBta, aee MUUarg Oo cap e W e m . 

Ttanination of War, mlea aa to^ 247, 8SL 

Thirty Teanf War, low atandaida in war^piaeUoe at, 85. 

Tnrka, war^praetice d^ more aefera than that of flie Sar^ 

eena, 18. 
Yatid, on the waripnctice of hia tim^ 8^ 47; Hie and woik 

of, 48. 
Yietoria, Frandaeoa, Kfa and wnk ot 26. 
Yon Mdtkfl^ on the impwwe ment in wa^praeUo^ 118. 
WadiiQgton, buning of the pnblie bnfldiivi al^ 88. 



t74 



m§ to 



Water Supply, i&tcreqitiiig or pftianmmfc pnililfaitod hj Bar* 

•eaH^ It. 
Wiiekn Tdcgrtphj, tfareit to treat oparato w aa apiai^ 109. 



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