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WAR RIGHTS ON LAND

MACMILLAN AND CO., LIMITED

LONDON . BOMBAY . CALCUTTA
MELBOtK

THE MACMILLAN COMPANY

NEW YORK . BOSTON . CHICAGO
ATLANTA . SAN FRANCISCO

THE MACMILLAN CO. OF CANADA. LTD

TORONTO

WAR RIGHTS ON
LAND

J. M. SPAIGHT, LL.D.,

mm/AuUt Stnitr Mtdtrator, Hub: in University ( Trinity}.

WITH A PREPACK BY

FRANCIS D. ACLAND

MACMILLAN AND CO., LIMITED
ST. MARTIN'S STREET, LONDON

191 1

-f

RJCHARD CLAY * SOICB, LIMITED,
HEAD moan HILL, re., AJCI>

AT,

TO MY WIFE

PRETORIA.

May, 1910.

MR. Si .uli \\hoin I have had the pleasure of work

in tlu- ('ml S.TMC.', and in th- ('ml Service Volunteer Rifles,
has i me to write a

preface to his book. Friendship bids me consent, though I am
more than doubtful wh< th. r my preface can do his book any
good. For his sake I might be tempted to say that a great
European Power is planning to invade our shores, that a
successful landing in great force can be made in this country
at any moment, that it is more than doubtful whether with our
present military organisation we can successfully resist any
such invasion, and, therefore, that it is every citizen's bounden
duty to make himself acquainted with the existing code of war
law on land, seeing that at no distant date he will probably be
subjected to it I do not, however, believe any of these things,
and therefore I cannot use this special argument in com-
mending Mr. Spaight's work. But his book, I believe, more
than justifies itself apart from the possibility of the invasion of
these islands. Until civilised societies have ceased to settle
renoes between nations by the barbarous appeal to force,
war is a possibility, and it is the duty of citizens of a world-
wide Empire to know its rules in order that they may observe
them, whether they have to act as attackers, attacked or
neutrals. There are also certain particular reasons which make
a strict observance of these rules for the future a matter of
great importance. Great Britain undertook at the Hague, in
1907, to issue instructions to her troops on the subject of war
law, and to pay an indemnity for any breaches of war law
committed by them. Thus, if in the future our troops do not
know and observe the laws of war (and on some occasions, as

V1U

1'KKFACE

Mr. Spaight shows, we did not know and oWr\ th. m during
th- war in South Africa). ;lt will appear in \Vur Office

and will be f-It in the taxpayers' pockets. This
also bound herself at Geneva, in 1906, to bring th'
rules of the Geneva convention to the notice of the population
at largi\ and the population at large may just as well study
them in this book as in whatever way they have been, or i
be officially promulgated. And, assuming for the sake of
argument the possibility of invasion, if not here soon at any
rate somewhere sometime, it will be found that a knowledge of
the laws of war is most intimately connected with the status of
the citizen who takes up arms in tin- f.i<-- of invasion to defend
his country. According to the Hague Rtylemrnt the <
conditions which such a man must fulfil in order to be regarded
as a bell with all th<> rijn- which this entails, are to

carry arms openly and to respect the laws and customs of war.
If he does not know them he cannot respect them, and it is no
defence in the case of war law any more than any other law, to
plead ignorance as an excuse. If he does not know and obey
laws of war he is liable to be treated as were the inhabitants
'..ixeilles by the Bavarians in 1870, and the Russians of
Saghalien by the Japanese in 1904 and in both cases the
treatment was most unpleasant.

But quite apart from any special reasons for knowing the
laws of war I venture to recommend th< ir study to the onli:
reader as being most interesting, and indeed fascinating, i
book makes one at once conscious of the depths of one's own
ignorance, and grateful for the chance of putting accurate
knowledge in its place. Let the reader put to himself a few
elementary questions on war law, and if he cannot answer them
know that he has much to learn from this book. For
instance. Should a declaration of war be made before hostilities
begin f What rights has a country against th s or

property of resident citizens of a hostile country on the out-
break of war, who are, and who are not, liable to serve in the
hostile army? Does a volunteer enjoy the rights of a
belligerent if he acts as part of an armed force, and if he acts
alone; if he acts in a country occupied or unoccupied by the
he destroys railway lines or telegraphs in occupied

PREFACE

if he does not wear a uniform ? Is guerilla warfare
contrary to war law ? May land mine* be used, and if no
. f May the residential parts of a town be ahelled I Why
may you inon water, but bow may you make water

' Win. ii countries have agreed j-i-. Mi.it the dis-
eharge of explosive* ips? May you ah*

enemies' sentries ? When may you wear the enemy's uniform ?
May a soldier dress as a civilian in <>nler to carry or obtain
Under what circumstances may a country be
devastated ? May you incite your enemy to desert ; and may
t I if rights of war if he makes prisoner those who have
deserted ? Can a cmli.-m in a v the enemy

be ordered to make roads or to make cartridges ? When must
non-combatants be allowed to leave a besieged town, and v.
may they be prevented ? iy you do, and what must

r a flag of truce, and during an armistice ?
ii ere of war be shot, and what work may
be compelled to do ? If a man gives his parole, breaks it, and
is recaptnivj how may he be treated? What constitutes
uiry occupation, and does it justify the assumption of
sovereignty ? Should civil officials remain at their post

i tries occupied by the enemy? May inhabitants of an
occupied country be compelled to take an oath of neutrality, or
to act as guides ? May the Government of the occupying force
levy taxes as usual, or impose new taxes ? Was England right
in the South African war in declaring the annexation of
South African Republics, in setting up concentration
camps, and in confiscating and selling farms to pay for the cost

lintuining the families of the owners in the camps ?
These questions, which cover no more than a fraction of
ground, are taken almost at random tV book, where

A most fully and practically treated. It is, in
fact, Mr. Spaight's treatment of his subject which peculiarly
H work. He is not only a student of war law
I ut of war. II ' ' y examines the writings of jurists, the

conferences and AS all the wars which

have taken place between civilised peoples in the last >
ecedents and examples bearing on each que>
makes every point peculiarly living m

PREFACE

low, bat steady march of reason and Immunity can be
traced on almost every side. Tin- ti.-M t'..r hnih-T progress is
clearly marked out As we rend we may compare the practice
of the earlier wars with that of the later, and both with th*
law aa now accepted, and with proposals made whi< -h arc at
present too advanced for general acceptance. Ami th r. -uit
is gratifying to a lover of peace, and well worth ini.-in- out in
!! nil.- that all i< fair in love and war becomes
of lh I ruth jis far ns war i- ronm nrd. War
more and more hedged about with an elaborate ritual
pun . observed. Tin- ri\ilian is IH..P- and more left on

one tide to pursue his ordinary avocations while the struggle of
those whom he pay* to d-nd- his disputes raiM-> ..vrr his head.
Will not thciic civilians some day come to see that tin- UK i hod
of gladiatorial nrbitrum< ir i- < -jually barbarous, ruinous and
unjust? And will n.-t \\ar between civilis. d nations th- n
become as much a practice abandoned as trial by battle for
the government of count n. ^ i* in ci.ilian han.i-. ,-,nd rmljans

I believe that this book, by sh- \sin- D

what position we now stand, and whither we are moving, may
bring that day nearer. If it does so by ever so little it will
have been written to good purpose.

FRANCIS D. ACLAND.

CBSLMU, January, 1911.

CONTENTS

( HAITKK I

OH A ITK 1 1 11
TUB COMMENCEMENT OF HOSTILITIES . ... -JO

CHAPTKU III
THE QUALIFICATIONS or BELLIGEREXTB . .34

CHAPTER IV
HOSTILITIES MEANS or INJURING THE ENEMY ... 73

CHAPTER V
HOSTILITIES SIBOES AMD BOMBARDMENT*

CHAPTKK VI

8nn . . M

CHAPTER MI
FLAOB OP TRUOI .

CHAPTER Vlll

-\KMI.-r!. . . . . . 232

CHAPTER EL

CAPITULATIONS . -J4

PRISONERS or WAR M

xii CONTENTS

('11 xl'TER XI

FAQB
MILITARY T\ OVKR THK Tl P TH1 HOBTl

<l MlilTARV OCCUPATION WVK KiDBTB OF Tin:
OoCtTPAJTT A5D OP THB IxilABITANTH .... 320

. ; r i;. ; i i I..N . < IOVTBIW BKUW, FIN.S.

AJID rut TREATMBNT or PROPERTY . . 381

CHAFTKK Mil
THE GKXIVA Coxvurnox . . . . .419

( HMTKK XIV
TIE SAXCTIOII or THE LAWS OP WAR .... 461

CHAPTKi:
THE NEUTRALITY COXVENTIOJC . 171

WAR RIGHTS ON LAND

CHAPTKK I

x PRODUCTION

mli\ilu:il who is a member of any organised State FU*fau

as aainst the oth -r m. inhere of

has certain rights as against
the State, and th- ith -r members and the State have certain L*w.
rights as against him. This is only another way of saying that
izen has certain rights and obligations. As an English
subject I have a right to personal freedom from molestation, to

to my reputation, &c., and I must respect
similar rights which other subjects possess. If they interfere
with inv rights, or if I interfere with th< irs, they or I commit
is obscurely called a " tort" If I infringe the rights of
the State as against me if, for instance, I break the King's
Peace by committing treason or forg* I go so far as to

keep a Colorado Beetle, I commit a " crime." In both cases,
the State machinery can be set in motion to secure com-
pensnt in tor th* breach of the rights infringed by the tort and
iiuc. It is the State authority which enforces all such
rights, or, in the language of jurisprudence, supplies th.-
" sanction."

Clearly to understand the nature of war righto, one must Rigfau
imagine, not such an organised State community as Eng**nH or SUJfc
any other developed country, but a very primitive condition of Suu.
society, like that which Hobbes postulated, in which M every
man is a wolf to his fellows," or, if one prefers Locke as
sopher and guide, in which each individual goes about
with a "sedate, settled design" on his neighbour's life. In
thi> pleasant com mum t\ there would be no established State

2 \V.\K RIGHTS ON LAND CHAP.

authority to make laws and enforce them. Internecine and
continual strife would be the normal condition of things. But
in the course of time, assuming that no ruling power is set up
as the arbiter and conservator of peace (and this assumpt ion is
not an extravagant one but closely analogous to the conditions
of International Law as between sovereign States), the self-
interest of individuals would recognise the advantage of a few
broad rules, founded on compromise and limiting the extreme
licence which had hitherto prevailed; rules, for example,
respecting traces, or the indiscriminate slaughter of women and
children, or the burning of temples, or the attitude of third
parties towards conflicts in which they were not immediately
concerned. No means of enforcing these rules would exist ;
the only influences making for compliance therewith would be
the conscience of each individual and the more potent motive
of fear of reprisals in kind for any breach of them. The only
ultimate means of redress would be self-help. Still, though a
" sanction " should be lacking, the rules adopted would supply
a standard of conduct, to which there would be a fairly
close approximation in practice. One might not be able
to call on any State authority to enforce one's rights but
they would nevertheless have an existence and recognition
the less real for being founded on an insecure foundation.

\v. r Such rights, based not on authority but on compromise,

enforced not by a law-giver but by each aggrieved individual

mnpared himself, find a close enough parallel in the War Rights which
are the subject of my book. 1 The relationship of the aimi
forces of one nation to the armed forces and population of
another independent nation is very like that of the individuals,
inter * the masterless men in the primitive community I
have tried to describe. Within their own boundaries, the
soldiers and civil inhabitants of each State have various rights
and obligations founded on the laws of the State and enforced

1 See Umittd 8tnUt Instruction* for Armu* in ike Field, paragraphs 40 and

There exist* no law or body of authoritative rales of action between hostile
armies, except that branch of the law of nature and nations which is called
the law and usage* of war on land.

All municipal law of the ground on which armies stand, or of the countries
to which they belong, is silent and of no effect between armies in the fiel.l.

i INTRODUCTION 3

uiU officials. Apart from war righto, they have no -

s and obligations toward* tho soldiers and inhabitant* of

ito. There is no common law comprising within

10 diverse unit* which are the instrument and

port of war. Primeval war, naked and unashamed, knows of

_:ht hut tin- right to kill. But just as the individual of a
unorganised community may be supposed to adopt
certain rules, based on mutual forbearance, to regulate t

iial wars, in like manner and for similar reasons modern

* have established a body of usages to regulate the conduct
of armies and populations in international wars. Some of these
usages have pride of lineage, and trace descent from classical

I ..r tin* age of chn.ilry ; others are born of tho develop-
ment of modern scientific war. Like tho customary rules of

primitive community, they have no sanction in the last
resort save self-help. War law is an imperfect law; for
whether law exists before the State, or whether without the
State there can be any law (which is, for my present purpose,
about as useful a matter for discussion as whether the egg or
ame first), there is no doubt but that the ultimate
power of the law within any State depends on the ability of
the State to enforce it, and that a law unsupported by the
sword of State is an imperfect law. 1 There is no international

.ual whirh will force a nation to observe the usages which
the general sense of nations has approved. "The law of
nations has not fleets nor armies of its own to make itself
respected." * Any nation can at any time throw war laws to
the winds. But no nation does. The logical supplement to
the golden rule which warns us that as we do, so shall we be

1 Sir F. Pollock says (J*ri*trwl<*ct, p. IS) that we are not called upon to

consider whether International Law is most akin to (1) national law, (.')

purely moral rules, or (3) thoee carton* and obtet ration* of an imperfectly

organbed iociety which hare not fully acquired the character of law, but are

on their way to become law. They have characteristics of each of theee three

catogoriw. but are, I think, moat akin to the third, to which they may nee-

be compared for the purpose of illustrating their essential nature.

Professor Holland describes International Law, which he nlsssas under the

rctive Uw of nation.," at " the vaniahing point of jariepradenee," tteoe

it lacks any arbiter of disputed questions save public opinion, beyond and

above the disputant parties themselves. (Jwuprwto*^ p. SS3 ff.).

* Lieutenant-General Den Beer Poriugael in tor** def Dna Jfowfcs, 1st

mber, 1901. p. 50.

i: 'J

4 WAR RIGHTS ON LAND CHAP.

done by, is the chief mti\v for the compliance of civilised
with the usages of war. Anotl . * is found in th<

conscience and sense of j -" the instinct of th<-

just and the unjust/' which, as Maeterlinck says, pervades all
humanity. "The grand word, Ought," is not necessarily ex-
punged from the vocabu lary of nations at war. Despi te i ts weak -
MM on the coercive side, International Law is a very great and
real restraining power which no nation can afford to disregard.
Good name is a valuable asset for a nation as for an individual.
War being but a rawing phase in a nation's life the fire in
which peace is consumed to be born anew of its own ashes a
nation should not, and does not, cast away its regard for its
reputation when it casts away its scabbard. War laws are often
broken are not municipal laws broken too ? but no modern
nation is bold enough or strong enough to disregard them
wholly. To do so would be to extend to every latitude in war
tune the doctrine of the old buccaneers that there was neither
God nor treaty within thirty degrees of the Line. 1
Uw a The International Law of war has had its detractors, who
have derided its authority and even questioned its existence.
The late Lord Salisbury said "it depended generally on the
prejudices of the writers of text-books " ; as if common law did
not depend on the prejudices of judges and equity on the
prejudices of chancellors. The French Admiral Aube spoke
in a signed review article of "that monstrous association of
words, the laws of war " : implying that war cannot admit of
any restraint, but must necessarily be an appeal to wholly
unbridled force. Such a position is merely unconsidered swash-
bucklerism. There is no nation which has not rendered homage
to the laws of war. Had such laws no existence and no
authority, ware would be, as between belligerents, sheer butchery,
massacre, annihilation, like the wars of the Children of Israel
long ago or the modern Afghans and Apaches ; and as between
belligerent* and neutrals, world-conflagrations involving all
nations sooner or later. War law is the only law which covers

>r aa example of what even a modern (nominally) civilised struggle can
be when neither party reoognues any war rights in the other, I recommend
Mr. Luraine Petrt'a D Ltbcrtador, which describes the war for freedom waged
by Boiirar and his HMO mostly Creoles, but with an intermixture of men of
port European blood against the Spanish troops in 8. America.

i INTRODUCTION 5

f heaven/' as a groat French statesman said,
all civiliaed nations with the benign a of it* humanity

and order. It needs no apologist for its i>TJtt*HCTt and u*
Can anything be more vitally real and beneficent than the
pow< has been able to abate even in a slight degree the

wrath and violence of war ? To say, as one writer does, that
laws of war make one think of the snakes of Ireland," 1
is to be epigrammatic at the expense of truth.

Indeed, history gives a full and complete denial to those who lu
question the reality and authority of war law. Every modern
war has seen its principles and rules recognised. There have,
stances of strained interpretations and
questionings Applicability to given circumstances of

certain of its rules, but such instances are only further evidences
ft recognr -ally binding system of war law.

No nation has deliberately gone about to override Inter-
national Law as a whole, Belligerent States may violate it
occasionally, but they do not challenge its existence and
authority: nith.-r. t hoy try to justify their actions by a reference
nciples of the particular law, conventional or customary,
i th< y are accused of infringing. And it cannot be that
violations of war law are not heard of by the world at large,
Wars, to-day, are fought under the eyes of foreign military
attack and Press correspondents, and the most stringent
censorship cannot the n>i*>rts of these neutral eye-

witnesses at length reaching the War Departments or news-
papers by which they are commissioned. AttaekA and corres-
pondents, especially the latter, do in fact go a long way towards
fulfilling the r6U which the Institute of International LAW (in
its session at Zurich, 1877) suggested that military attack*
should be assigned by International agreement, namely, the rtU
of a "jury of honour " who should report to neutral Governments
any infractions of war laws committed by the belligerents. 2 The
suggestion is an excellent one and is to be hoped that some
- conference may see fit to sanction it and thus grant the
official approval of the Cabinets to a practice which is already to
some extent carried out unofficially.

1 Frrtr. MMtmry M**tr* mmd OIIJMH, p. 2.
'S~M.de Martens, L Pmix * / OMVTV, pc W.

r> WAR RIGHTS ON LAND CHAP,

Induct*** The solf-intoivst , th-n. of nations and their regard I'm- ih<n
laffo? world reputation arc influences making for the observance of
obmv- the laws of war. A further inHumr.- i^ the recognitiun of the
warUw. obvious advantage of having a known body of rules denim-
with a subject of much doubt and difficulty ; in other words,
of having war usage standardised. Again, in most modem
States, the balance of political power between two or in<>r
parties furnishes another safeguard for the observance of war
law. Ministers are ultimately answerable in constitutional
States for the actions of the national troops, and if the " Big-
Endians " are in power, the " Little-Endians " will not be slow
to make political capital out of any lapse from correct int.-r-
national usage committed by the country's forces. Com-
pliance with war law is thus sometimes secured indirectly
through what is primarily a party move.

\ There is no complete code of war law. Several attempts
jL^JJIla have been made to draw up such a code but never with
complete success. In 1874 the representatives of the Euro] .. m
Powers met at Brussels to consider the question, and though
unanimity was reached on many points, many others were left

undecided and some were not discussed at all. The Brussels
project, containing the articles to which the delegates agi
was never ratified owing to the opposition of the British
Government 1 It has, however, had from the first a great
moral influence on the conduct of armies, embodying as it does
most authoritative opinion of tacticians, diplomatists, and
jurists on the laws and customs obligatory for belligerent States
The and their armies." * In 1 899, a further conference of repre-
sentatives, held at the Hague, reconsidered the Brussels project,
and the result of their labours was the completion of a Etglement
or series of regulations, which the Powers agreed to embody in
their respective Army regulations. This Rtglcmcnt is the
nearest approach to a complete code of war law. The fact
that it was approved as an annex to a Convention instead
of being made part of the Convention itself has militated
against its effect The Powers who sanctioned the ll>
maU are not bound by its terms, as they are by those of

fee M. de Mart**., La Paix et la Ouerrt, Chapter III

De Martens, p. 190. See Hall, IiUtmatwnal Law (Atlay's Edition),
p,K4)

i INTRODUCTION 7

the St Petersburg Declaration and the Geneva Convent
undertaking in to issue instructions to their troop*

lea of the Rtglement, and tome of the

Powers have interpreted the intention of thia undertaking very
looaely. There i> . true, any power given to the several

Cabinet* under the agreement to pick and choose from the

.sand to omit .r modify such ! ?is each Cab

deems to clash with national interests. 1 A proposal to this
effect was made at the Hague by the British military delegate
and withdrawn on general opposition being offered to it. But
<ion as to cot and the fact that the text of th-

nifnl is not binding, have been taken by some of
signatory Powers as a reason for doing precisely, in effect, what
i Ardagh proposed. "A Rigltmtni annexed to a
h J'!.>M M t ic treaty," says an eminent French jurist, " has always
t of the character of a simple ' act of execution ' whi< h
icting parties assume power to modify without touch-
ing the Convention itself." * It is for this reason that Germany
in \\-\- Htliri.-il manual of the laws of land war (KrUgsbrauch \m
Landkntge, Great General Stati 1 02) lays down that a

fade, to be recognised as a proper combatant body, must not
fulfil the conditions which were sanctioned at the Hague
he admission of such bodies to belligerent rights, but also
ulditional conditions for regulars, militi.i, ami \luiiteers.

may be a reasonable and proper r.-.jni:
certainly a departure from both the spirit and r of what

Germany pledged herself to at the Hague. The British
Government, too, appears to regard the Rigtcme*t as an ' act of
execution ' or rather, perhaps, as an ideal theoretical standard
to which belligerents, ought, if possible, to conform in war. In
e Pocket Book/' issued by the War Office and

intended as a li.in.lv 1 k ..f reference for officers on service, a

inary of the Hague regulations appears under the following
heading (p. 155):

These Regulation** are intended M general rales of conduct,
90 far a* military fuefttrifM* permit ; tkey Aotw MO* Uui for* of an
'-national Convention,

IM Blue Book, JfMrttfoiMoiu No. 1 (1808)" (which wtU be rafomd to M
" Hague 1 B. B. M ), p*gen 140, 142-S. De llariMM, p. 1(MX
* PiUet, Lu Lou mttmtttrndtla Owm, pi 451

8 WAR KIUITS ON LAND CHAP.

It in perhaps unfortunate that special notice should thus be
invited to the very elastic prerogative of th< n Cities of war
(the "ill-defined exception of military necessity/' to use Mr.
DM.: Is phrase), which is, of its very nature, very far

from being given to silence and self-effacement when it happens
to come into collision with international agreement^. In any
case, the heading of the summary is open to the serious
objection that it is incorrect to state generally that th lla-M,.
Regulations are subject to military necessities. Some of th<
rales are so subject for instance, those which lay d<\vn that
private property, or religious institutions, are to be respected.
But the most imp- -rativ.- military necessity could not justify
the use of poison or the torture (" inhuman treatment ") of a
prisoner of war, or assassination.

A second Conference was held at the Hague in 1907. At
this some of the Articles of the 1899 Rtglcmcnt were slightly
modified and an important Convention was drawn up, dealing
Nsith the war rights of neutrals. The Rlglement of 1899
had already a chapter on the subject of the internment of a
belligerent's troops in a neutral country. This chapter was re-
moved from the Rtglcmcnt, and, together with a number of fresh
provisions dealing with the rights and duties of neutral Powers,
obligations of neutral individuals, and the requisitioning of
;ral railway material, was made the subject of a distinct
"Convention respecting the Rights and Duties of Neutral
Powers and Persons in War on Land." It was also provided
that an indemnity should be paid for any breach of the
Rlglemcni a provision which will doubtless check the tendency
towards a loose construction of the undertaking as to the con-
fortuity .f instructions to the terms of the Rlglement as passed
by the delegates. The principle of monetary compensation,
which is not found in the St. Petersburg Declaration or Geneva
Convention, and in the Hague Regulations of 1899, was sanc-
tioned only for minor breaches of armistices and for the seizure
til way plant, etc., belonging to companies or private persons,
is bound to mak<* for th< observance of war law, not so mmli
on account of the material loss which a violation may entail as
because of the moral effect of the fact of violation being proved
and brought home to the offending State.

1NTRODI

j have the Conferences of Brussels and the Hague TIM

tipphl in th. final JtykmnU, an authoritative* text of the ~
laws of war, but the procto-ixrbal* of tho three Conferences C.
h a very valuable commentary on the text and throw n.

i point* on which no agreement was roachc*!

Protocol (pructo-ttrbal)" said Baron J..mim. the President of

Brussels Conference, " is tho living commentary on the

text and as nun -h law as the text itself!" l "The Protocols will,

be i \< nt ..' war," said the Russian Government in a despatch

relating to this Conference, "be consulted as evidence of a

great moral value." 8 It is frequently very instructive to

. nv th- <>i initial .Is aft of the Brussels Conference with the

mutually sanction* <! l,y the delegates and to watch

process of the manufacture of the raw material supplied by the

Russian Project into the finished product of the existing

Hague JUgUmeni. I shall make constant use of the Protocols

he Conferences in discussing war law under its various

headings. The Brussels debates are especially valuable, for one

finds in tin-in a fresher and more thorough and comprehensive

exan >f the problems of war law than the later debates

ply. The delegates at -h- Hague were able, by virtue of

th.tr predecessors' labours, to take much for granted, to assume

first principles, to improve and modify rather than to dissect and

analyse ; they had no need to attack the roots of each question,

to treat it ab mi/to, as the earlier delegates had. The Brussels

cols, much more than those of the later Conferences, deal

nents "t' the problems of war law, and therefore,

ugh the text to whi< h th.y area commentary differs in

some respects from the Rtglcment of 1907 the last word in

conventional war law they must always remain a veritable

lore-house of information for a student of the subject

Other points of war law are dealt with by the St. Petersburg other

Declaration of 1868 (renouncing the use of explosive

i 400 grammes in weight), the Geneva Con ven-

- of 1906 (for the amelioration of the condition of the

! M-k in armies in the ti.-M) ami thr ('mivnitionsof

- Blue Book " Mi**Uaum No. 1 , 1873 " (which I shall refer to in futurv
M " Brawls, R R"), p. 944.
* Blue Book - JfMcdliiMmu No. 3 (1875)."

io WAR RIGHTS ON LAND CHAP.

1907 as to the opening of hostilities and as to neutrality. The
(- .... nvrntimi -I I9(>() has n'placed the earlier ConTention
of 1864.

Many questions of war law re-main undecided by inter-
national agreement As to these, the delegates at the Hague
Conference of 1899 made the following important declara-
tion :

It has not been possible to agree forthwith on provisions
bracing all the circumstances which occur in practice.

On the other hand, it could not be intended by the High
Contracting Parties that the cases not provided for should, for
wejit of a written provision, be left to the arbitrary judgment of
the military Commanders.

Until a more complete code of the laws of war is issued, the
High Contracting Parties think it right to declare that in cases
not included in the Regulations adopted by them, populations and
belligerents remain under the protection and empire of the
principles of International Law, as they result from the usages
established between civilised nations, from the laws of humanity,
and the requirements of the public conscience.

They declare that it is in this sense especially that Articles I.
and II. of the Regulations adopted must be understood. 1

In order to discover what are the " principles of International
Law" to which the delegates refer in this passage, one must
have recourse to the Protocols mentioned above; to the
manuals of the laws and customs of war which many individual
Governments have issued to their troops 2 ; to the published
proceedings of the Institute of International Law, and especially
to the Manual of the Laws of War on Land which was drawn up

1 Hague 1 R R, p. 316.

American, In* ruction* for the Government of the Armie* of the United
Atofw m ffc FWd (1802) ; French, Mantul de Droit International a Fuage
*t0effv(l877); Russian Ukase of 1877 (*ee Holland, Studies in International
Lu*, p. 86, and de Martens, p. 216 ff) ; German General .Staff, Kreigsbrauch
im LavUaneiye (1902) ; British, Laws and Customs of War on Land, <M defined
ftylfa ffagme Convention of 1899 (Edited, Prof. T. E. Holland) (1904). The
editions of tne British Manual of Military Law, from the first edition, of 1884,
to taw fourth, of 1899, contain a valuable chapter by Lord Thring on the laws
and customs of war. The Manual is an ordinary publication of the Stationery

Boa, and has been on sale to the public since 1884. Dr. Lawrence is there-
in error whan ha aays : The corresponding British code (i.e. of war laws)
has Mi bean published, hut Sir Henry Maine was permitted to quote from it
largely in his International Law n (International Lav, .{.<! IMition, 1905,
p. J78, note).

INTRODUCTION . i

by that body at iu Oxford session in 1880; to the writings of
- an. I most of all, to the exam plea, precedents, and warn-
ings which iu- <1 t>\ th< i . il occurrences of modern
war. All those sources of information are doubly useful to a

>f war law; for where an International Conven

exists on any jH.int. they explain it. nlar^- n\>n n show its

bearing in practice, olothe it, as it were, in flesh and blood ; and

there is no Con -. t hey are evidence of the existence

of certain usages, which, be it remembered, rest upon the same

ion as conventional war law, that is, the conscience of each

1 nation. The whole domain of war law is so full of

uncertainties and complexities ne had to depend on

Conventions alone, one would tini. not only that there arc great

gaps in the subject, where settled rules have not been arrived

it that even on points which have been legislated
the practical interpretation is in many cases so doubtful and

i!t that one must have recourse for guidance to auth
ties other than the Conventions themselves.

It will be seen that I have used the last-named source the The

! i ' 'f i v!

events of history very freely for defining, explaining, and m *thod of
illustrating all the many questions presented by a study of tre * t -
modern war rights, whether depending on convention or on
usage. A few words are necessary in regard to the wan
whi.-h have furnished me with material for precedent or
warning. It may be thought that a general examination of
the wars since 1850, such as I have attempted, however useful
for guidance on problems which are still in the domain of
usage, cannot be of much utility as regards the problems which
have been settled by international agreement The first
Geneva Convention, of 1864, had not been promulgated when
.can War was fought, and when it was given to the
world the American Civil War was nearly over. The Hague
Conference of 1899, and even the Brussels Conference of 1874,
were held long after tin- Franco-German War. The Seven
Weeks' War is rich in instances of the war right relating to
us, but, since that war was i-u-M . the question has
threshed out and stereotyped at Brussels and the Hague.
According to this view, the only war which could be admitted
as supplying illustrations of the Hague RigUmcnt would be the

12 WAR RIGHTS ON LAND CHAP.

Rusfto-Japanetic War of 1904-5, for the Transvaal and On
Free Stale Governments were not parties to the diplomatic act
referred to. As the Hague Regulations contain much th
greater portion of conference-sett 1 -I \\.ir law, one would be
than debarred from offering the historical events of practically
all modern ware as a commentary on tin- war rights which they
do, an a matter of fact, illustrate. But there is no good ground
for taking such a view of the matter. The Hague Conference
lii not create any fresh principles of war law; it <>nl\ -auctioned
existing usage. " On its important points/' says Professor
Despagnct of Bordeaux University, " the Hague Ittglcmcnt only
specifies precisely the dispositions already admitted by all
lined nations without any dispute." 1 The Hague is
practically a reiteration of the Brussels Project, which " sought
to seek out whatever in International Law was capable of
being stated precisely, defined, rendered complete, and to
acquire therefor, by means of an exchange of declaration
between the Cabinets, a sanction which should be binding." 2
" Tho Conference," said the president at Brussels, " has no ot
end than to consecrate rules universally admitted." 8 The pre-
amble of the Hague Convention of 1899 expressly states that
the provisions of the Rlglemcnt were framed with the intention
of M defining and regulating the usages of war on land." There
was no cancelling of an old code and promulgation of a new one.
The aim (and the effect) of the Hague Conference, and of the
others in like manner, was to turn a war right depending on
usage into one depending on international agreement. To a
large degree, the Conference aimed at creating a " Society of
Mutual Assurance " against the abuse of force, by giving an
international authority to such restrictive rules as humane
Governments and commanders in the field have found desirable
and feasible in practice. The statesmen, soldiers, and jurists
who compiled the Rtglcmcnt took as their materials the accumu-

1 PranU Decptgnet, La 0*erre *ud*tfrieaine au point de vue dt Droit
imltrma/iomat (1902), p. 219.
Hairiin Gmrnmeot'ft dwpatch in Blue Book Mi*xtlaneou* No. 3(1

Klae Book IforettnuoiM No. 2 (1875), p. 4. See aUo De Martens, j.
who *te Uu* the Brunei* Conference "only consecrated uHages already

INTRODUCTION 13

Uted experience* of modern military history. They

the event* of war which are pertinent to the subject into the

RlgUment at it stands to-day, and the student of war right*

follow a like historical methud if the B^gUmnU is to be lor
liim something more than a formula or a cold abstraction,

ed from the reality of war. There is hardly an article of
the Hague Regulations which may not be matched by an
instance in |>n..r wars of strict compliance with its provisions,
and \\hnv iisa^,- IMS \ ;m .-l .-11 .m\ p., -nt. it j| ioftrOOtivt t"

trace the historical, practical reasons which led the Conference
to adopt one solution and reject the others.

Among the wars which I have examined for the purpose of The
my work is the American War of Secession, which was not

m international war. As war rights can only come into *d iu
w.-.-n tin- armies and populations of independent war ut
roign States, it would seem that this particular war is of
questionable valu< purpose, seeing that the soverei^r

<t tii. ('"iiNileracy was not recognised by the Washington
Government. Technically, the Secessionists were rebels, like
the Sepoys in the Indian Mutiny. But practically, they were
treated as belligerents, and both sides, throughout the struggle,
respected the principles of International Law. The Washington
Government could not do otherwise. The early stages of the
war went in favour of the Cotton and Border States and left a
host of Union prisoners of war in their hands, on whom
retaliation would have been provoked by a refusal to treat the
Southern armies as lawful belligerents. 1 The Secessionist
Government had no incentive to regard the Northern Govern-
ment as other than an independent community, a federal body
rates from whi.-h th< (\.nt.deracy had severed itself

An amusing indication of the general attitude of th<*
i nn this question of severance is the fact that New

The Supreme Court decided in the owe of the Amy Warwick thai the
at the smine time belligerents and traitor*, and subject to

the liabilities of both. In practice, however, they were treated as belligerents
throughout the struggle" (Lawrence, /lOenMfMM/ Low, p. 90S). The Con-
federate GoTemment did suooeeaf nllj we the threat of reprisals on Union
prisoners to deter the National Gorernment from treating the crew of the
fliiaiinu* privateer as pirates. See Draper, tfisfory of <JU American Civil
rr, V 111.,,. 49*.

i 4 WAR RIGHTS ON LAND CHAP.

k news was published in the Richmond newspapers under

h.M.im- ' F.'i- u'M Intelligence." Indeed, in main i, |,.
the Secession War is the most instructive of all wars to the
, ; -I--:.-, itfoeaj Law, Inal ai tlii> wur gave modern

ting many of its distinctive features the cavalry screen,
the me of rifle-pits and wire-entanglements, the employment
of mounted infantry, the attack by short advances tinder cover
o it gave belligerents the first written code of land war.
This was the very remarkable manual of Instructions for tlw
GovemtMHt of the Armies of the United States in the Field,
which was drawn up by Professor Lieber, on Mr. Lincoln's
initiative, and which is not only the first but the best book of
regulations on the subject ever issued by an individual nation
on its own initiative. Its principles and its philosophy are
sound, elevated, and humane. In a few special points its
detailed teachings have been modified by the subsequent action
of International Conferences or the influence of changing ideas
on usage, but, taken as a whole, it reads like an admirable
paraphrase of the existing Hague Reglement. Any student of
war law must find, as I have found over and over again, that
its teachings throw a flood of light on the dark places of
International Law. It passed through its ordeal by fire in the
grim struggle of 1861-5 and was not found wanting. Apart
from the devastation of Georgia and the Carolinas by Sherman
and of the Shenandoah Valley by Sheridan devastations
which were made militarily necessary by special circumstances,
just as was the devastation of the Transvaal in 1901-2 the
conduct of the Union forces, almost wholly composed of

MIIS with no previous training or discipline, compares more
than favourably with that of regular armies in European wars.
TW8ou Another war which I have used is the Anglo-Boer war of
1899-1902. The Britinh claim to suzerainty over the Transvaal
may seem to place this war outside the category of conflicts
between sovereign States. Whether one thinks with Professor
Despagnet that suzerainty depends on a treaty and that, when
this tie is snapped by the outbreak of war, the countries
concerned are in the position of independent States, 1 or whether
one regards the case as abnormal and one to be considered .n
Bftty, InUritalional Law in South Africa (1900), pp. 66-8.

. INTRODUCTION ij

iieritfl and the circumstances, the met remains that both
belligerents carried on the war with constant reference to the

iples of International Law. The Blue Books and State

rs issued on various point* which arose during the conflict
prove this mot abundantly. England recognised the Boers as

^erents, and if. wlul<- doing so, she maintained her right of

suzerainty to justify certain lines of action which would hardly

be proper in a war between completely independent States, her

hese points (to which I shall be very careful to

draw attention as being exceptional and without authority as a

precedent) is in by reason of its very divergence

admin, d by jurists and statesmen from the strict rule of

national usage. Generally speaking, the laws of war

were observed by both belligerents, and that is sufficient

reason for a careful study of the war by a stud.-nt of Inter-

other wars with \\hich I have dealt call for no special
t .r the few references I make to the Indian Mutiny
and the Boer War of 1881 are for the purpose of showing the
military raiaun &&re behind certain war rights, not to furnish generally.

nee on contentious questions of usage. The status of the
parties in these conflicts is therefore immaterial. I have not
thought it advisable (except in a very few cases) to go back to
the Napoleonic wars, rich though they are in illustrations of
war rights. To have done so would have swelled still fur;
an already large volume, and if the latter ware have not
acquired the perspective and light and shade in which history
shows up the right and wrong in men's actions, their modernity
makes them a more profitable theme for the study of existing
war rights. One thing I claim proudly, and it will seem a
matter for pride to those who have read as many text-books on
International Law as I have : there is no mention in my book,
except this, of the * Affair of the Caudim Forks."

following articles of the Hague Convention of 1907
respecting the laws and customs of war on land, to which the COHTO-
Rtylcmcni is an annex, may here be conveniently given : i907,Mto

ARTICLE I.

The Contracting Powers shall issue instructions to their
armed land foroee, which shall be in conformity with the

16 WAR RIGHTS ON LAND CHAP.

Regulations respecting the Laws and Customs of War on
Land, annexed to the present Convention.

ARTICLE II.

The provisions contained in the Regulations, referred to m
Article I. as well as in the present Convention, do not apply
except between Contracting Powers, and then only if all the
belligerents are parties to the Convention.

ARTICLE III.

A belligerent party which violates the provisions of the said
Regulations shall, if the case demands, be liable to pay com-
pensation. It shall be responsible for all acts committed by
persons forming part of its armed forces.

Other articles of the Convention refer to the ratification of
the Convention, to the adhesion to it of non-signatory Powers
to the date of its coming into force, and to its denunciation.
Article I. and Article II., with modifications, are reproductions
..! the Convention of 1899: Article III. is new. This last
Article, with its assertion of the responsibility of Governments
for the action of their agents the forces in the field and
its provision as to the payment of an indemnity, may perhaps
have the effect of saving Article I. from being a dead letter
so far as Great Britain is concerned. It may, that is to say,
remit in the Rtglement being studied in the British Army. At
war law present, it is not. It forms no part of the promotion exami-
*: j n our anny . there is an apparent exception in the

case of promotion to Lieutenant-Colonel in the Royal Army
Medical Corps, but that is due to the Rtglemcnt and the Geneva
Convention being contained in the same service manual, I'm-
with the Reglement itself doctors have no concern. .m<l th< v
are only examined in the portion of the manual which deals
with the Geneva Convention. Instructions have been issued,
it is true, to the armed land forces, but no one reads them.
No one would dream of reading them. I shall give what
I submit is a perfectly fair instance to show how little
is known of war law in the English Army. In the Journal
of the United Service Institution for May, 1909, will be
found a letter from an officer whose mind is evidently exer-
cised about the war right of " belligerent qualification," as
raised in the case of Mr. Brown, the dramatis persond in An

INTRODUCTION 17

Horn* who in summarily nhut on captures for using
a rifle to defend hi* home. He asks whet Kroum is not

tied to combatant rights seeing that the * Geneva Conven-
tion " (*u?) grants such rights to populations who rise on the
enemy's approach, without having had time to organise them-
selves in the usual way, and he points out that Mr. Broom
had not had time to "organise himself or anyone else."
(Mr. Brvien, I may say, was properly punishable with death :
though one may d..ubt whether even the War Department of
" Nearland " would have permitted a cavalry captain to condemn
an inhabitant to death without any form of trial) The officer
writes this letter belongs to one of the keenest regiments
in the Army Li-t yet apparently he had no one in his regiment
to st't In in right on this point a point which any officer might
have to deal with at any time in actual war. Many causes are at
t h< i general neglect of the study of war law. The

of officers is fairly well occupied, nowadays, in regimental
* and training work. They say, who know, that the British
y is a finer engine of war to-day than it has ever been. Most
gladly and i hankt'ull y I accept that statement ; yet I am entirely
and most sincerely convinced that one small, not unimportant,
^h neglected, part of the machinery needs oiling and atten-
\Var law has never been presented to officers in an
..-live form, as it might have been (I submit with <1

had insisted on the h human, and pr .

cal si r than on the legal and theoretical one. But ih-

ditli- t. and tin- n.T-s>ity fora careful study of

iot been brought limn.- to officers: they underestimate
i tance and complex ii : in saying this I am not

forgetting that a young officer wrote a book <>n tlu> subject
years ago. Indeed I think that fact supports my con-
ion. Professor Holland's admirable manual was already in
once, so that this book in part a transcript, in part a
paraphrase of the Rtglcmcnt and the Geneva Convention was
hardly necessary. It cannot have taken much more than three
weeks to write. There is nothing in it to show that any pro-
longed study or specialised knowledge went to the making of
it. It is clearly not the work of one who took the subject
seriously himself or thought others would take it seriously.

1 8 WAR RIGHTS ON LAND CHAP.

Indeed I cannot help thinking that tho book's raison d'ttr
simply thia that for an ambitious subaltern who wishes to bo
known vaguely as an author and, at the same t im< , not to be
troubled with undue inquiry into the claim on which his till*
rette, there can be no better subject than the International
Law of War. For it is a gium'-military subject in which n<>
one, in the army or out of it, is very deeply interested. which
everyone very contentedly takes on trust, m<l which may be
written about without one person in ten thousand being able
to tell whether the writing is adequate or not.

Yet, assuredly, this matter touches the honour of the nation
and the army. The very lightest claim that the Rtglement has
(I) Toil* * Attention that it is the accredited manual of the etiquette
onto* of war ought to insure that it is studied. But its claim is a
thousandfold stronger than this : it is the charter of war, the
statute right which armies carry, as it were, on their bayonets,
and which runs in every civilised land where hostilities are
waged If war is not simply unbridled force, if it is something
more than a glorified " rough and tumble," a savage mtlee which
knows no mercy or moderation, it is so because of the rules
which have their authoritative expression in the Articles of the
great Conventions. They are the measure by which war is
removed from barbarity. To observe them is not to blunt one's
sword ; no nation ever complied more strictly with war law
than Japan in her war with Russia, yet no nation ever fought
more sternly, more devotedly, more successfully. Mod-rn
fighting has become a disintegrated, isolated, straggling affair,
spread over a vast space of country and directed in mi a
multitude of practically independent centres; and any officer
may at any time be called upon to decide some question of the
war right of his own side or the enemy's in a particular case.
If he decides wrongly, he damages his country's cause, not only
in reputation but in pocket for there is the indemnity to be
id?red Thi oAotf ii regarded, <juit<- projKTly. as his
Government's agent, and the latter his principal and employer
will hardly favour a servant whose ignorance makes hi-

; -loyment doubly damaging and costly.

the And the orbit of war law, be it remembered, extends beyond
the armies in the field It affects the civilian inhabitants of

. INTRODUCTION 19

invaded or occupied countries too, and it affect* them more
i lately and potently than tho cany law of peace. It U a
law one may not trifle with, a law which smites with scorpions
and which uttera its injunctions and commands along levelled
barrels. With thin law every citizen of every country
a to make hiinxdf familiar. If ignorance of the law is no
excuse in peace, it is far less an excuse in war, when punish-
ment follows sharp and swift on any transgression, whatever its
/en who is wise ought to make it his business
to learn betimes the law which will go\< m him if or when the
enemy is at the gates. (And no land is entirely safeguarded
danger of invasion : history teaches that it i* crass
my coun link itself set permanently above the

tide-mark of war.) And in this extended orbit of the law of
war to non- warlike individuals, the professional soldier ought to
.1 further reason for studying the subject gravely and care-
fully : for he will bo the judge not a juror who may know
mg of the law and is merely an arbiter as to fact but

ill have the lives of men in his hand as completely
as the criminal judge of peace-time. It is futile to hope, of
course, that one will ever find in the judges of war law the
specialised knowledge, the trained and balanced judgment, the
mi nation in handling authorities and evidence, which one
expect* to find and does find in the judge of assize. The con-
ns of war and peace are too different for that. But there
is no reason absolutely none whatever that a good working
knowledge of war law should not be acquired during peace,
hose who will have to administer it in war. We do not
wait till hostilities break out to drill men, and drill is less hard
to master than war law. It cannot be right that there should
be any possibility left of life and death being adjudged to
free citizens by judges who are ignorant of the code they
:or.

c 2

CHAPTER II

THE COMMEN "I HnsTIU

Conventional Law of War, Hague Convention, 1907,
Articles I. to III.

ARTICLE I.

The Contracting Powers recognise that hostilities between
them must not commence without a previous and explicit
warning, In the form of either a declaration of war, giving
, or an ultimatum with a conditional declaration of

ARTICLE II.

The existence of a state of war must be notified to the
neutral Powers without delay, and shall not be held to affect
them until after the receipt of a notification, which may,
however, be given by telegraph. Nevertheless, neutral
may not rely on the absence of notification, if it be
beyond doubt that they were in fact aware of the
existence of a state of war.

ARTICLE III.
Article I. of the present Convention shall take effect in

of war between two or more of the Contracting Powers.
Article II. applies as between a belligerent Power which is
a party to the Convention and neutral Powers which are also
parties to the Convention.

A formal THE provision as to the opening of hostilities, given above,

tfeaBoi is contained in a separate Convention and does not form

*P>Lpart of the Hague Riglement. Therefore, although it marks

. . .' * change in practice, it is no exception to my general

remark that the effect of the Hague Rlglcment has been solely

to legalise existing usage. Many modern wars have

begun without either a declaration or an ultimatum amounting

to such, and one cannot deny that, in practice, a formal

.1 COMMENCEMENT OF HOSTII.I I ll-s 21

declaration has not been coatomary in modern time*. Theory

he subject ia divided. K inriaU have, aa a general

rule, taken tbo viow that no declaration ia necessary tha

ia a vain formality and that a blow may properly
be struck before duration or manifesto ia iasued. In

I 'riio Court caao of the Elisa Ann, Lord Stowcll laid it down

a declaration <>n

declaration of war waa not a mere challenge to be accepted or
refused at pleasure by the other. 1 j >\ed the existence of
actual hostilities on one side at least, and put th irty

also into a state of war, though he might, perhaps, think proper
to act on the defensive only." l Lord S to well's judgment does
the question as to whether a doclara

. t or ought not to be issued ; all that it decides is that war
may exist without a declaration, \vhi.-h is m< rely the evidence

state of fact But it is certainly true that English jurists
have mostly failed to confine the > laid down by the

great Chancellor to its proper and n.it u nil domain. They have
argued that, because a declaration is not necessary in order to
" legalise a war," it is therefore not necessary at all. According
h school of writers, whatever reasons there may
have once been for a solemn declaration of hostilities (the chief

; the practice of foreign h 1 the necessity of

recalling citizens who were serving in other armies to their
national standard), 2 the need has ceased to exist with the
modern improvements in the means of communication. " The

ire of diplomatic relations/' says a representative English
s the constant precursor of armed conflict. . . Unless

first blow falls like a bolt from the blue, in a period of

profound peace, without previous complaint or demand for

redress, there is nothing in it that savours of treachery." * The

us discussion which accompanied the commencement

of the Russo-Japanese War shows, however, that even when

prolonged diplomatic negotiations have taken place, the blow

the readier belligerent may be construed by the other

tt Oobbett, Ltadimg Otutt m Inttrvmtioaat L**, p. 102.
* F \V Sibley, ImUr*atio*nJ Law at

fit JfeMoVayMMM War, pp. 5S-4.
1 Uwrtooe, War and AVti/naMy in ikt Far But, pp. 28-9.

22 WAR RIGHTS ON LAND CM

M A treacherous attack; and tho very fact that a complaint <>f
treachery is possible, whether well founded or not <
Argument in favour of a declaration. The Continental ju
have been very strongly in fav< Kjclaration. One of th -i 1 1

hat, quite unjustly, ascribed the English doctrine to unworthy
motives. "England," says Professor Louis Le Fur of 0;n n,
" having almost a monopoly of the telegraphic cables of the world,
and possessing squadrons in every sea, finds in this practice [of
dispensing with a declaration] a considerable advantage. Sili-
con strike damaging blows at her enemy's commerce the
moment hostilities open, capturing ships and sailors before they
are even aware of the rupture of peaceful relations." 1 Tin-
European view is ably expressed by M. Bonfils, who says :

Acts done before the declaration have a doubtful character.
Are they real hostilities, or merely unauthorised attacks? A
State which has not been warned and which sees its froi.
attacked, would be authorised in regarding tho hostile soldiers
and sailors as merely bandits or pirates committing an act of
aggression, and in applying to them the national laws dealing
with brigands, instead of the laws of war. 2

It was the European view which was approved at the Ghent
session of the Institute of International Law in 1907, and received
official international sanction in the same year at the Hague,
View of when, indeed, it received the support of the British delegates. The
fljj^** 1 * Committee which examined the question at the Hague drew
up a very valuable and interesting report on the subject, in
which it expressed its concurrence with the view that a declara-
tion of war was desirable, both to settle the uncertainty existing
<n the point, and to remove a frequent cause of recriminations
between belligerents. It suggested that the declaration of war
should be a reasoned one (motivte), " in order that everyone in
the two countries which are at variance as well as in neutral
countries, should know what the war is about, and that it
might be possible to form a judgment on the conduct of the
adversaries. It would, of course, be visionary to suppose that
true cause of the war will always be indicated : but the

' la JtoM* <U Droit international public, July-August, 1898, p. 672. (In
future I shall refer to this Revue as R. D. L)
t RM.AI. Inumaiional Law, see. 1081.

.. COMMENCEMENT OF HOSIII ITIE8

1 the causes, the necessity of putting forward

causes which may have no l'..miUti"ii ,, r which may be

altogethn proportion with th.- very (act of war thin IN

I to draw the attention of neutral Powers and to enlighten

1 One may nee in these words, and in
M its. 1: irkable instance of the growth of

! nationalism ; for there is here a covert blow at Cacsarism,
an appeal h-m th< . \, ,-utivo of a nation to its people, its sane
democracy, its educated electors, who bold the public purse-
strings and without whose backing no nation could fight for a
day. It is a new thing in International Conventions to
recognise in ->t h.-rs than kings and generals the existence of a
conscience. Upon the question of delay between warning and Pronoeal
atUv was some discussion in committee. No " perio* ;

of grace" was provided for in ich proposal (which was'

that ultimately adopted). " The French delegation/' says the
rt of the Coin in. onsidered that the necessities of

vn war do not allow of the belligerent who wishes to take
the aggressive being forced to grant any delay beyond what is
absolutely indispensable to let his adversary know that force
will !> .in ployed against him." This view received th.-
support of the majority of the Committee and was approved by
the Conference. The minority (fourteen out of thirty-five)
voted for a Netherlands proposal which provided for a delay of
nty -four hours " between warning and attack, and
-iipport of which Colonel Michclson, one of the Russian
^ates, made a very able speech in which he pointed out that
two great advantages would accrue to the world from the
recognition of a necessary " period of grac ! he first place,
it would provide for a relaxation in the state of M armed
peace," for the question of peace establishments and war
establishments is closely bound up with the question of a delay
between warning and attack. Secondly, it would give friendly
and neutral Powers an opportunity to reconcile the contending
nation*

1 When the declaration of war it contained in an ultimatum it in not
expreealy required by the Convention to give the rea*on, but that u merely
because an ultimatum implies a demand for redrew or for the Mtirfaottoo of a
claim, and it wai unnecessary to provide pecafioally for MM

24 WAR KKiHTS ON LAND CHAP.

1 \< Th vmlirt of the Committee upon this proposal was as

follows:

The fixing of a time of grace did not appear reconcilable with
actual military exigencies ; the mere fact of h.i\ IMLC admitted tin-
necessity for a pre-notiftcn M itself a great iid\an.--. Our

may hope that the future will allow a still greater ad van . t<. )
made, bat it w better not to go too quickly. It i n<>t< \M.rtli\
that the ! I nt.-niaM.mal Law did ix.t think it possiM.-

to fix a period of delay, although, in such a matter as bU
Mnibly of jurists would naturally be less cautious than an
assembly of diplomatists, soldiers, and sailors.

As the Convention stands, hostilities may legitimately be
begun the moment the notification reaches the adversary. A
condition of perfect preparedness is assumed on the part of the
latter : it is taken for granted that he is ready to defend him-
self, like a duellist waiting for the word to take guard. 1

It is, of course, the aggressor who is bound to make the
formal declaration of war. Every nation has the right to
defend itself from attack. Continental jurists, while requiring
a declaration from the belligerent who takes offensive action,
admit that it is not required from the party repelling a hostile
enterprise. 1 Bluntschli adds that a defensive war may
necessarily have, for military reasons, to take the form <>f
offence. "From the point of view of law, the difference
between the offensive and defensive war lies, not in the fact of
being the first to cross the frontiers or invade the hostile
territory, but in the difference of the respective rights of the
parties." 8 Hence he would dispense with a declaration where
threatened belligerent forestalls his adversary in self-
defence. The doctrine is a dangerous one ; aggressors
usually able to satisfy themselves that they are acting on the
defensive. Bluntechli's view has no warranty in the Convention
f HK)7. The belligerent who strikes first, whether he is
really acting on the defensive and his aggression is merely a
tactical mode of self-protection, or not, is bound to give notice
as laid down in the first Article.

1 The report of the Committee is given in Blue Book Protocols of the Eleven
AtMry Meeting* of the Hague Conferenrt of 1907 (Cd. 4081, of 190*
' * BonfiU, op. cit., sec. 1037.

1 BlonUchli, Droit International Codtfti, sec. 521-4.

,i COMMENCEMEN1 Of HOSTIUTIKS 25

'II ation of DCMI ,ven which is required by the Notifies*

second Article generally takes the form of a manifesto. This
second Article is tho result of a modifier two proposals

ils unduly find which were held to be
inooiuuMt' tin- war right* of belligerent States. The

was a Belgian proposal which sin-

HUto of war niUMt he notified to neutral Power
k ii. .11. ^ lu.ii may be made by telegraph, will not produce
any effect as touching neutral* until forty eight hour* after iU

I Yenrh jurist, M. Louis Renault. summed up the objections
to this proposition in the caustic remark th.it "it was inad-
missible to allow neutrals 4s hours in which to violate the

itions of neutrality The other was a British proposal

\\hn-h ran :

A neutral State in only bound to take measure* to preserve its
neutrality after it has received a notificat lie commencement

of hostilities from ,.nr ,,f th<- In-Ili-'-n -nt v

following is the commentary of the Committee upon the
text finally adopted :

The view which has been adopted is thai it i impracticable to
fix any delay. The governing idea is a very simple one. A
State can only be held to its duties as a neutral when it is aware
of the existence of war which creates such duties. From the
moment it has been informed of the outbreak of war, no matter
by what means (provided there in no doubt of the fact), it cannot
do anything inconsif.ttnt with neutrality.

outbreak of war brings in its train many changes in the The out-
-tic relations of the various component units of the States JjJ^jf
concerned. First and foremost there is the great and complete
change in th. mutual relations of the units most concerned in
war the armed forces of the several States. From being, in
one another's eyes, merely uninteresting and rather absurd
foreigners talking an outlandish tongue, each sul<i< nlv becomes
an element of vital importance in the other's scheme of things
an whose sole function is to do the other element

grievous bodily harm and to count the deed to itself for
righteousness. But the effect of the outbreak of war is not

26 WAR RIGHTS ON LAND CHAP.

confined to tin- o.inli.it.-mts in .n-h country; .n the general
body of citijtcrw, if it does not mean for them such a din ci ;m<l
complete negation of the golden rule AS it docs for the arm- -I
forces, it entails many new obligations and restrictions.
Amicable relations come to an immediate end. The subjects of
the enemy State cease, to a large extent, to be men and
brothers. One may not trade with them, or contract \\hh
th in, or sue them or be sued by them, and these restrictions
apply equally to neutral subjects domiciled in one of the
belligerent countries. In the English Prize Court case of
Hoop and in the American case of The Rapid, it was laid down
as a maxim of universal law that all commercial intercourse is
M -n between the subjects of States at war, without On-
licence of their respective Governments. In the former case
Lord Stowell said :

Who can be insensible to the consequences' that might follow,
if every person in time of war had a right to carry on a commercial
intercourse with the enemy, and, under colour of that, had tin-
means of carrying on any other species of intercourse he mi^ht
think fill .... In the law of almost every country, the character
of alien enemy carries with it a disability to sue, or to sustain, in
the language of the civilians, a persona standi in judicio. A state
in which contracts cannot be enforced, cannot be a state of legal
intercourse, 1

In 1871, the Berlin banker, Herr Giiterbock, was sentenced
to imprisonment for subscribing to the French War Loan. 1 As
ssor Bonfils remarks "The continuance of commercial
relations between citizens would give the situation a doubtful
and equivocal character. They would contribute directly or
indirectly to the enemy's means of defence, increase or renew
his resources, facilitate the prolongation of the struggle and
render it therefore more disastrous and less humane." 2 And
thi French jurist's remarks are echoed by M. Geffck. n who
adds that to allow intercourse between the subjects of warring
States would put the actions of individuals and of their rulers

1 Boyd't Wheatoo'i International Law, sec. 309-310. In the case of
KcponU 9. Bowden, Judge Willo said : " A declaration of war imparts a
prohibition of commercial intercourse with the inhabitants of the enemy's
country, and men intorooorae, except with the licence of the Crown is illegal."
(F. K. Smith, International Law, p. 93.)

* Boofik, op. e*., we. 1060.

ii COMMKNCi Ml NT OF HOSTILITIES 27

1 In iii.Ml.-m wars the general interdiction of

iierce has usually been relaxed by the grant of " licences

special tv\ a* given in particular caw* h

11 belligerent's interests to allow his subjects and the

enemy's to carry on general trade under certain specified con-

ii a certain commodity, and in such cases the

net of * v l,y A liich he grants the privilege removes

il.-^.ility IV. .in th- Mibr|iiriit r,,ini,,.Tcial transac-
tions Dunn- ih<- Crimean War, Great Britian permitted
English subjects to trade with Russian ports which were not

hl.H-k.i'l. l. pr- \hl-.l th-- iu.T--h:iMli-- w.i> n-.t -.ntt;il..ui.i .it w.ir

and was carried b -ins; and Russia on her side

ullowtMi th.' importation of English goods. 1 There was mutual

advantage in the freedom of trade which was thus sanctioned

vo Powers. In the American Secession War a special

11 was made in the case of trade in cotton. The people

MI the Cotton States were naturally eager to dispose of t

whit -h made the wealth of the South and gave them

v by which they were able to carry on the war. With

the outbreak of hostilities and the blockading of the tide-water

is of the South, the price of the commodity rose in the
Northern States and in Kumpe, and the business instincts of

\Vashington administrators prompted them to sanction

liase (cheaply, because of the local glut) of the cotton which
the southern farmers had stored away when the markets were
closed. The policy of allowing freedom of trade in cotton was
certainly a good business policy, but it came very near " giving
aid and comfort " to the rebellion, as Sherman pointed out in a
vigorous protest. 1 After he had received the order from Wash-
ington to purchase cotton for gold, he wrote to Army Head-
quarters (September, 1862) "Trade in cotton is now free, but

1 else I endeavour so to control it that the enemy shall
receive no contraband goods, or any aid or comfort." * The rule
prohibiting commerce with enemy subjects is also relaxed in

ase of supplies which are required by an invading army
and which it tinds it convenient to purchase from the local

1 Quota), BonBU, /

Uwreaoe, ImUntatumal Laic. pp. 907-8 ; BoofiU, op. e*., MO. 1061.
Jftmoir*. Vol. I, pp. 966-7. Ibid. p. 275,

28 WAR K1GHTS ON LAND CHAP.

inhabitant* 1 Such transactions reqnin n<> a-t ,,i State to
legalise them, th- authority of an .mn\ <-nimiiandrr being
sufficient. Generally the mitigations of the broad ml* <( law
have been baaed on the self-interest of belli^ n nts and d<>
not amount to a counter-usage permitting commerce. I
authority is needed to prove that any commercial transaction
\\i\h an enemy subject is not bad in sc. The question wln-t her,
and, if so, to what extent, the rule prohibiting legal ivlati..ns
between enemy nationals is now affected by Article XXIII (h)
an addition made at the last Hague Conference will 1><
considered when I come to that article.

Ill f It is unnrfvssary, in such a book as mine, to examine the

effect which the outbreak of war has upon treaties previously
concluded between the belligerents and upon diplomatic
relations generally. These are questions of high politics, which
\v.iuld be dealt with by the civil administration. My aim is to
follow the operations of war, from the moment of the declara-
tion to the final peace, in the guise of one who might be called
upon to advise on questions of war law; in short, to fulfil ihn
functions which were assigned to the Japanese legal counsellors
who accompanied the armies in the field in the war with
Russia. I have therefore purposely confined myself to the
consideration of such questions only as would probably come
under the purview of such an adviser. The questions I deal
with are those which might arise (they have not all arisen in
any one war) and require to be answered on the spot, without
reference to the home Government. 2

The treatment of resident enemy nationals has undergone a
great change for the better in modern times. Ancient theory
re not m- and practice regarded them as enemies, individually, and
u .,' admitted the right to arrest and imprison them. The last
instance of this rigorous rule being put into force is Napoleon's
detention of British subjects who happened to be in France
when war broke out in 1803. 8 Present usage allows enemy
nationals to depart freely, even where they belong to the armed
forces of the other belligerent " A State," says Bonfils, " has

1 See Article L1I of the MgUmnU, infra, p. 381.

x At to the effect of war on treaties, see Hall, International Law, pp. 382-7.

BonfiU, op. c*. MC. 1062.

u COMMENCEMENT OF HOSTII.ITIKS 29

.in incontestable right to refuse to help its enemy's recruiting

from the point of view of practical utility the measure

taming future recruits] is condemned To detain subject*

of the enemy who wouhi otherwise be mustered into his army

is to court reciprocal treatment, and is, betides, to undertake a

close surveillance over the movement* of these men, who,

detained against their will, will be induced by feelings of

patriotism to seek every means of harming the country which

detains them I here is a usage," says Fillet, M in favour of

tig no obstacle in the way of enemy nationals who are

recalled to serve in their country's army." * This usage applies

ill) to men quitting the enemy's country upon the outbreak of

war. It does not hold in the case of the occupation of the

hostile territory. In such a case the invader suspends the

recruiting laws in force and makes it a penal offence f<r th.

inhabitants to quit the territory for the purpose of joining th< u

rial forces.* When the war of 1870-1 broke out, France

and Germany allowed freedom of departure of one another's

reservists, 4 and the same rule was followed in the Spanish-

rican 6 War and in the Russo-Japanese.

a Present usage," says Professor Le Fur, "does not admit of They are
expulsion tn mctm of enemy subjects resident in a^j^M 6 * 1
belligerent's territory, save when the needs of defence demand eaaw of
Hit h expulsion, any more than, in th<> convene case, it admits n<
the retention of those who wish to return to their own coun
i when they are to be incorporated in the army." T The
precedent set by the Confederate Government in 1861,

i Jered the banishment of all alien enemies, 8 has
followed in subsequent wars. France and Germany
" enemy subjects to continue to reside in t h.-ir respect:

during the war of 1870-1, but the former country
led by military exigencies to rescind the general privilege

t, U* Loit actmlU* fc la (foerre, p. 80.

BonfiU, op. cit. MO. 1053.

Vi<U la/m. p. 355. Boofila, op. c*. aws. 1053.

Nagao Ariga, La Own* ru^o-japona^ (M. FauohiUe'i French traaala.
i),p.37. (II. Ariga WM Legal CoooMUor on the staff of Marshal Qjama in
war of 1904 5. He i* now Pro/earn of International Law at Tok
I: 1 ugiwt, 189H, p. 677.

Draper. J/Mfory of it* American GMT Wmr. Voi II. p. I M

30 WAR RIGHTS ON LAND CHAP.

, i.u M hail and ili' l).-|urtm.-nt of the Seine wen concern^ 1,
at the end <f August, 1870. A ProcUm.-itinn
by General Trochu which enjoined "every person not \
naturalised Frenchman and belonging to one of the countries at
war with France " to depart within three days, under penalty
of arrest and trial in the event of disobedic-i i

The incident ia instructive as showing a usage in the
making; for, though there were 35,000 in Paris alone and
their expulsion was clearly justifiable as a precautionary
measure of defence, the general opinion in Europe was that
they were harshly treated, and a sum of 100 million francs was
claimed, as part of the War Indemnity, in respect of the losses
they sustained by being driven out. It shows, as Hall
observed, that public opinion "was already ripe for the
establishment of a distinct rule allowing such persons to
remain during good behaviour. 2 The usage has been
strengthened by the precedents set in the Russo-Turkish \Y.u
S77-8, the Chino-Japanese War of 1894, and the Russo-
Japanese War, in all of which enemy residents were sufferi'<l t<>
remain. 8 In the Gneco-Turkish War of 1897, Turkey ord
the expulsion of all Greeks residing in Ottoman trrriturv, lnt
the execution of the order was postponed from time to time,
;inl the war ended before the period of grace which was finally
fixed had expired. 4 A similar decree of expulsion was issued
in the Transvaal and Orange Free State in the Anglo-Boer
War, but, except at Johannesburg, it was not carried strictly
into effect. Johannesburg, with its preponderating Uitlami* r
population, was counted upon by the British military experts as
lik.-ly to require a commando of 5,000 Boers to keej
disaffected citizens in check. Most, however, of the Uitlainl-r>
r voluntarily left the town before the outbreak of the war
or were sent away under the expulsion decree; the remainder.
some of whom had been left by various firms to guard their
interests with the special sanction of the Government, while
others had evaded the order of expulsion, were summarily

Holier, Franco- Pruuian War, Vol. II. p. 13; Bonfils, op. cit. sec. J
PUlet ( . 80.

11. International Law, p. 392.
* See Fillet, op. cit. p. 81 ; Ariga, op. dfc j. :i7
4 R.D.L July -August, 1898, p. 677 ; Fillet, op. cit. p. S->.

ii COMMENCEMENT OF HOSTI1 1IIIS 31

'1 uinlor a new decree on April 90, 1900, after the
i"H in the Begbie powder actor \ v.hi--li watt attributed
to British agency. 1 Although th.- r,,n,|,. ti*h

residents in th.- explosion in jut. unsupported by evidence,
one may, on the whole, looking to the past record of
unesburg a hotbed of disaffection in the heart of the
Boer dominion* agree with Professor Dejpagnet in regarding
the Boer Governments action as "a measure rendered indis-
pensable by circumstance*." 2 Whatever right of continuing
residence may be accorded to enemy subject*, it must be
1 mate to considerations <> ceawty .*

modern usage of war forbids a belligerent to seise the TWr

of enemy subjects which happens to be within his
lore when war begins. "They have acquired it," says
Professor Fillet, " under tin- surety of the guarantee given to
international commerce and it would be unjust to despoil ti

u ware furnish but two instances of the apprupria-
M.-n by a belligerent of the property of resident enemy
nationals. The first is the confiscation of the property of alii -n

ic Confederate Congress in istil. Th. MI.M
brought nearly 2,000,000 dollars into the Richmond Trea>

it is questionable if the material gain was not dearly
purchased by the alienation an sympathy cause* 1

the act L.r-1 Ku^.-ll summed up the general opinion on the
matter in the following words:

Whatever may have been the abstract rule I*w of

Nations in former times, the instances of its application in the
manner contemplated in the act of the Confederate Congrats in
modern and more civilised times, are so rare and have been so
generally condemned that it may almost be said to have become
obsolete, 1

.T..H.I in-tan. , is the "commandeering" by the Transvaal
< >f gold belonging, in the main, to British share-
rs. Professor Despagnet presents the act as one within
i Nsful sovereignty of a belligerent Power "by reason of

.m4 //M/ory o/ tkt Boer War, Vol. II, p. 125 ; VoL IV, pp. 149-151
Dwptgnot, La (hum tud^tfncaim*, pp. 143, 22S.
K.-pv^u :. . -. i>. -AT

ai. l*ler*ali<mal L*w, p. Ml l',u>t, cp. fit p. &

Hall, /N/^rmi/Kmo/ L<tr. p. 439 : Dmpar, o }

32 WAR RIGHTS ON LAND CHAP.

supreme necessity," but it is impossible nob to see in it a simple
case of confiscation of enemy property which happened to be
within the seizing belligerent's borders. The only " supreme
necessity " in the case was the need of funds for carrying on t h<
war, and if such a need were held to justify the seizure, tin ml,
exempting enemy property would be a dead letter. 1 To say
that the usage of non-confiscation is not obligatory, and that
therefore the Boers and the Confederates were within their
strict rights in doing what they did, does not in the least
amount to a justification, for it is the essence of all usage that
it is not obligatory. The two instances in question stand out
in glaring contrast with the general practice of belligerents in
these later days. They are chiefly noteworthy as bringing into
clearer relief the process by which "contract" (that powerful
engine of civilisation) is driving in its wedge ever further and
further and cleaving war in twain. If war was not invented 1>\
the Troglodytes, the strange people who would not keep their
contracts and so perished utterly, it was at all events a thing
after their own hearts. The buccaneering spirit which is evoked
by war is inherently hostile to the divine right of contract
and it is a notable victory for the latter to have gained even a
precarious footing in war's domain. The great battle between
the two remains to be fought when contract and " military
necessity" meet, and some day that battle will be waged and
contract will win. There are plenty of indications, dim as yet
but legible to him who will read, that gradually and by difficult
advances, the very commercialism which aroused Tennyson's
scorn when it came forth as the antagonist of war ("Tln>
huckster put down war " . . .) will prevail in the end and drive

1 Tim** History, VoL III, p. 83 ; Deapagnet, op. cif. p. 142. The share-
bolder* of the mining companies came near suffering a still heavier loss about
tl>i time. Some of the Boer officials, incited, it seems, by certain of tl..-
" soldiers of fortune" who had flocked to the Transvaal, were all for blowing
in the shafU of the mine* and destroying the surface plants and machinery,
rep mulling a fixed capital of many millions of pounds. They were prevented
from carrying out their plans by the opposition of the more enlightened Boers,
and especially by the action of Louis Botha, who (I have been told by a Boer
gentleman who was one of a deputation which went to represent to him the
danger threatening the mines) threatened to withdraw his commandos from
the field and bring them to the Rand to guard the mines unless the policy of

See Time* Hi*ory t Vol. IV, p. 151.

.. COMMENCEMENT OF HOSTII 1IIKS 33

he market place and the spirit

of war cannot live tog. -n.'. It may bo that romance will

be lost with the pawing of war, and that some of the nm

i os will go too.and also the often valuable "idea of extra-legal

>. h Maeterlinck has made himself the eloquent

apologist in In praise of the Sword." But no considerations

is kind will avail to stem the process which has onnagnad
din-lling to civilisation's scrap-heap, and trial by battle,
vendettas, tribal and baronial war, and
embodiments of the " might is rig). ire quite

<>f place in a grey workaday world which has discarded
armour and side-arms for frock-coats and umbrella* It is not
the conscious working of any humanitarian or heroic ideal that

make war impossible, but the automatic development and
extension of certain forces which are now in existence, though
mighty possibilities are little foreseen. The world is
coming more and more to be governed by business men, who
are supplanting the aristocratic, warrior-bred class who have
ruled it in the past, and business men are not likely to be blind to
the prosaic truth that it is bad policy to kill people one might
sell things to. This truth is bound to become a dominan

1 -economy in the future. Every acknowledgment of the
claims of contract in war-time, every recognit i : var right

,-n as again- Belligerent, is a step

further in the development, hardly yet begun, which will end
in some system of universal peace . it umild )>,- i<lle to

try to sketch the precise nature and details. Very possibly the
exemption of enemy property from seizure, which I have been
peaking of, will be one of the earliest and most important
stages which the philosophic hist h< distant future will

oessary to note when he traces the decline and fall of
Mr,

CHAPTER III

THE QUALIFICATIONS OF BELLIGERENTS

Conventional law of war respecting the qualifications of Belligerents
Hague Reglement Articles I to III.

ARTICLE I.

The laws, rights, and duties of war apply not only to
armies, but also to militia and volunteer corps fulfilling the
following conditions :

1. To be commanded by a person responsible for his
subordinates.

2. To have a fixed distinctive emblem recognisable at a
distance.

3. To carry arms openly ; and

4. To conduct their operations in accordance with the
laws and customs of war.

In countries where militia or volunteer corps constitute
the army, or form part of it, they are included under the
denomination "army."

ARTICLE II.

The inhabitants of a territory which has not been occupied
who, on the approach of the enemy, spontaneously take up
arms to resist the invading troops without having had time
to organise themselves in accordance with Article I, shall
be regarded as belligerents if they carry arms openly and if
they respect the laws and customs of war.

ARTICLE III.

The armed forces of the belligerent parties may consist of
combatants and non-combatants. In the case of capture
by the enemy, both have a right to be treated as prisoners
of war.

THE first difficulty which meets one in the study of war law
ia also the greatest. It is the solution of the question who
has the right to fight in a war between civilised armies ? The

CH. in QUALIFICATIONS OF BELLIGERENTS 35

answer of the Hague Conference of 1899 and 1907 in given

1 1 is advisable to trace the steps which led up t
lu the firnt place it may be taken as an axiom of modem
war law that tho peaceful inhabitants of an invaded country,
whether they are theoretically " enemies " of the invading army ****S

>t, are in practice never treated as suck 1 Every modern M
war affords proof of the truth ..f this statement When Prince
Frederick Charles (the " Red Prince ") invaded Saxony in 1866
he issued a proclamation in which ho said :

at war with the people and country of Saxony, t>ut
only with iU Government, whi u inveterate hostility has

forced us to take up arms.*

In ,i similar strain ran the Proclamation issued at Saarbruck
he King of Prussia on llth August, 1870 :

i iake war against French soldiers, not against French citueens.
The latter consequently will continue to enjoy security for their
persons and property so long as they themselves shall not, by
hostile attempts against the German troops, deprive me of the right

th-in my

1 See Hall, International Law, pp. 97-74. He reject* the doctrine, which
originated with Rousseau, that " war is not a relation of man to man, but of
State to State." There is a great weight of authority against this view. See
Bonfils, op. c*. tea 1047. See also Sherman's Memoir*, p. 226, where he
ay. in a letter to General Halleck, dated 24th December, 1864, " Thw war
differ* from European wan in this particular ; we are not only'.fighting hostile
armies, but a hostile people, and must make old and young, rich and poor,
feel the hard hand of war, as well a* their organised armies. " Mr. H. G.
Welk, in A*tieipatiom t p. 186, puU the principle of differentiation which I
refer to in a very graphic way: "Alarge part of existing International Law
involves a curious implication, a distinction between the belligerent Govern-
ment and iu accredited agents in warfare and the general body of iU subject*.
There is a disposition to treat the belligerent Government, in spite of the
democratic status of many States, as not fully rent seuut ing its people, to
establish a sort of world-wule citizenship in the common mass outside the
official and military class. Protection of the non-combatant and his property
comes at lastin theory at least within a measurable distance of notice
boards : combatants are requested to kosp off the grass.' " The Preamble to
the Declaration of St. Petersburg, in laying down that " the only legitimate
object " of war is " to weaken the military forces of the enemy," has. in eflect,
given an authoritative International approval to the view that the inhabitants
of belligerent States are not, in practice, regarded as enemies of each other or
the hostile forces.

Hosier, Asm rscfa' War. p. 126.

1 CasetU's //Mtory of tkt War osfmca /You* amd Gsnwray, Voi I, p. 41 ;
MoriU Bosch. Bitmunkim <* Pra*co-G*rma War. VoL H, p. 190.

1. 'J

36 WAR RIGHTS ON LAND CHAP.

Lee's General Order No. 73, dated Chambersburg, Peim
sylvania, June 27, 1863, reminded the Confederate soldiers that
" the duties exacted of us by civilisation and Christianity are
not less obligatory in the country of the enemy than in our
own. ... It must be remembered that we make war only
OD armed men '

On entering West Virginia in May, 1861, McLellan said in an
address to his men :

I }>l.i- under the safeguard of your honour the persons and
property of the Virginians. I know you will respect their feelings
and their righto. 2

Lord Roberts' Proclamation of 31st May, 1900, guaranteed to
the Transvaal non-combatant population " personal safety and
freedom from molestation," on condition that they abstained In 'in
wanton damage to property. 8

General Butler's Proclamation, on entering the Transvaal,
began as follows :

The troops of Queen Victoria are now passing through the
Transvaal. Her Majesty does not make war on individuals, but
U, on the contrary, anxious to spare them as far as possible the
horrors of war.

The quarrel England has is with the Government, not with the
people, of the Transvaal. Provided they remain neutral, n<>
attempt will be made to interfere with persons living near the line
of march ; every possible protection will be given them, and any of
their property that it may be necessary to take will be paid for. 4

Marshal Oyama instructed his troops at the commencement
of the Chino-Japanese war of 1895 that " the armed forces are
alone to be regarded as the enemy, not individuals." 6

The Japanese Proclamation to the inhabitants of the island of
Saghalien, which was the only Russian territory invaded in the
war of 1904-5, contained these words :

To-day the Japanese army lands in this island. Its enemy is
the Russian army. As for the inhabitants who show no hostile

1 GmralJ. B. Gordon, Rtminitcenct* of the Civil War, p. 307.

* O. & McCleiUn, McCitUan'* Own Story, pp. 51-2.

1 Whit P*per, Proclamation* itnudbyF.-M. Lord Roberts in South Africa
(Od. 428, 1900), p. 7.

4 Whit* Paper, Proclamation* i*nud by F. -Af. Lord Robert* in South Africa
(Ot 426, 1900), p. 7. BonfiU, op. cit. sec. 1048, note.

111 OUALIFICATIONS OF BELLIGERENTS 37

entiment, not only will no harm befall them, bat, on the contrary,
they will be protected in penoo and property and allowed the free
of their religion. 1

separation of armies and peaceful inhabitant* into two

lasses is perhaps the greatest triumph of International

LAW. It* effect in mitigating the evila of war has

incalculable. One must road the history of ancient ware,

or savage wan of modern times such as Chaka's campaigns, by

ii lu made the Zulu name terrible throughout northern

Natal to appreciate' the immense gain to the world from the

n between combatants and non -combatant*. But if

populations have a war right as against armies, armies have as

t a war right as against them. They must not meddle
with fighting. The citizen must be a citizen and not a soldier.
Wellington told the inhabitants of southern France in 1814
that he would not allow them to play with impunity the part of
pea* /ens and of soldiers, and bade them go join the

ranks of ich armies if they wished to fight. 1 It may be

said broadly that there is no room in modern war for the
resistance of unorganised inhabitants. They have had tin -ir
chance of joining the armed forces of their country, and if they
have not done so, then they must loyally play their part as
r n whilr their duty to their country must remain
in abeyance ; with the invader comes the reign of war law, and
war law has a short shrift for the non-combatant who violates
its principles by taking up arms. "The civilian who kills

at being bound to do so, and thereby wipes out th<- Inn*

of demarcation (between soldier and inhabitant), cannot be

disarmed except by death. The condition of a prisoner of war

does not exist for him : he must be annihilated in the interests

' Though the sparing of a peaceful popular

Ariga, op. <*. p i

See an admirable paper. On Ik* Jbfaftoiu brfwMi em Immtog Army
amd <A InkabilanU, etc. by H. R. Droop, in the Papers of the Juridical
Society. VoL III, pp. 712-3. See alao the Proclamation of lit April, 1814,
quoted by Sir K. Creaey, AYr* Platform of I*/,mati<mat La*, p. 480.

Moriu Buach, op. <*., VoL II, p. 207. Profeaw Holland remark*

>* m InttnatKmai Law, p. 73) thai then are two reaaon* for not allow
ing the population of an invaded country to take part ia the war : (1) goet ilia
warfare haa an inevitable tendency to develop into cruelty ; (2) if a military

38 WAR RIGHTS ON LAND CHAP.

is a fairly modern growth in war usage, the refusal of combatant
right* to non-military people is almost as old as history : it is
mentioned in the Dt Officii*} The idea may be traced from the
existence of a peculiar warrior caste in ancient times, through
feudalism, with its men-at-arms, jealous of encroachment on
their specialised pursuit, to the modern principle of the division
of labour, developing a trade-unionism in fighting which would
exclude all but professional or semi-professional forces tV-.m
interference in war. "It is manifest/' says Kipling's Umr
-h, Sikh of the Khalsa, trooper of the Qurgaon Rissala, type
and spokesman of a breed of fighters, " it is manifest that he
who fights should be hung if he fights with a gun in one
hand and a purwana [a permit given to non-combatants for
t h>ir protection] in the other." There is a whole chapter of
war law its history and its principle epitomised in his words.
To-day the refusal of belligerent rights to unorganised
populations has a justification which it lacked in ancient times
and those who claim for every citizen the right to take arms at
hi-* pleasure against an invader, are really striking at the roots
of all clean and civilised war.

The aflair The name of the little French town of Bazeilles, south of
Sedan on the road to Montm6dy, will always be associated with
the war law regarding resistance by unorganised populations.
There has been much discussion and, no doubt, much false
witness as to what happened there on the 1st September, 1870.
The German official History of the War states that the
inhabitants took an active part in the struggle which raged in
and about the village, and that they spared neither the
wounded nor the stretcher-bearers, so that " the Bavarians
found themselves eventually compelled to cut down all inhabi-
tants found with arms in their hands. 2 Whether, as
Germans alleged, the inhabitants burnt the helpless Bavarian
wounded alive, pouring hot oil over them before carrying them
into the blazing houses, which had been lighted by the German
shells; or whether the Bavarians bayonetted old men and
women in their beds and threw infants into the burning
flnmauinW protect* the inhabitant* he roust be assured that they do not cut
off his stragglers or fire on his detachments.

8ee Boyd's Wheaton, International Law (2nd edition), p. 428.
German official HiAory (English translation), Part I, Vol. II, p. 316.

111 gUALIMi \TIONS OF BELLIGERENTS 39

-M ; l there can bo no doubt of the accuracy of two slrts
.... nt, namely, that the village folk resisted the Bavarian*
arm* in hand, and that the Bavarians exacted a heavy
vengeance in consequence. The town was made fuel of fire
reduced to the condition of Pompeii, says Sir Harry Hoarier
and the bodies of the dead were left to burn where they
lay. General I 'hi I Sheridan saw the black ruin* and smelt
t the burning flesh next day. 1 The Daily New*
correspondent relates that he saw the charred corpses of the
women and the tender littl.- ones a sight I dream of to this
day, and wake in a cold sweat of horror/'* To point the
moral and make it clear that the destruction was not merely
the unoonsidered act of a maddened soldiery, a German Proclama-
the 29th September spoke of M the ****** executed
against the village in virtue of the law of war." * It is not too
much to say that the incident sent a thrill of horror through
Europe. But extreme as the punishment was, the inhabitants
had umii'ukcdly broken the law of war in joining in the street
fight, and the Bavarians had a clear war right to deal summarily
with those taken red-handed in action. Ten years before, a
well-informed writer in Blackwood't Magazine* pointed out
that attacks by the inhabitants of an invaded country directed
against the hostile troops would recoil with terrible effect upon
their own heads. " Men, women and children sacrificed, the
innocent as well as the guilty, houses burned and property
plundered and devastated are all considered legitimate
r acts of aggression by an unorganised popula-
\Vh<ii one of Sheridan's officers was murdered, in*
October, 1864, with the connivance of the inhabitants of the riaf
Shenandoah Valley, an invaded territory, he gave orders for all
houses within an area of five miles to be burned' In the

See Hotter, Franco- Tr^tian War, Vol. I. pp. 429-31 ; Cn-cll's Jfctory,
VoL I, pp. 90-4, 164; VoL U, pp. 061-2; Baecb't OHMTV*, Vol
pp. 168-70.

rkljui'aP<rMM/irMOtrfl,Vol.II t pp.411-li. Bbntrck tpoke to him
'hoM burning Frenchmen ug I
/Jatfy .VM War Cbrrapowlriicc, p. 190.

CMwir tfufory, VoL I, p. 154. VoL 88, p. 612 (I860).

8hricUn' Mcmo*r*, Vol II, pp. 50-2. When few boom hftd been
burnt, SberidM ordemi tbe derMtaiing work to be topped, tml be cerried
wmy ail ibe able-bodied

40 WAR RIGHTS ON LAND CHAP.

Ruaso-Turkish War of 1877, when the Russians cap tun-. I K-ki-
Zagra in Thessaly, shots were fired upon them from certain
houses. General Oourko ordered the inhabitants of MH h houses
to be hanged at their doors. 1 In the same war the headman of
th<- village of Ousova was executed because the inhabitants
took part in an action. 2 In the South African War, all houses
fr<in which shots were fired were destroyed by the English
troops. 1 The Parliamentary Paper, "Return of Buildings
burnt in each month from June, 1900, to January, 1901, " * sh< >\\ ^
th.it about forty-five houses in the Orange Free State ami
l-<> in the Transvaal were destroyed during this period
because the British troops were " sniped " therefrom. 6

tory affords ample evidence of the universality of an
invader's war right to punish popular resistance with a heavy
hand. The lesson which the Bavarians wrote in blood and

at Bazeilles was unique only because of its dramatic and
terrible completeness.

Great An invader, then, has a clear war right to refuse belligerent

JJii V I >r ' Stages to the ordinary inhabitants of the country through
^ which he passes. Has he a similar right as against a population

wmc h has risen in arms before his arrival, and, if he has not,
can he impose conditions on such a population before h<
acknowledges their status as combatants ? The Hague
Rlglcment, which is silent as to popular resistance of the kind
which I have been discussing, grants belligerent privileges
und<T certain conditions in such a case as that last mentioned.
The whole question was discussed at great length at Brussels ;
th<- Conference was indeed wrecked on the rock of this very
difficulty. The fact is that on this question there are clashing
interests which make a solution enormously difficult. The
great Powers who have adopted universal service would confine
belligerent rights to properly organised armies, whether

Kpaurhin, Operation* of General Qourktfs Advance Guard in 1877
(Harelock's translation, 1900), p. 160.

Count Von Pfiel's Experience* of a Pruuian Officer in the Russian Service,
1877-* (Colonel Bowdler*s tranalation), pp. 180-1.

Baty, op. r*. p. 87. 4 White Paper, Cd. 624.

* I am leaving oat of account house* destroyed for " harbouring Boers " or
for being used as a stronghold." The numbers given are those of the case*
in which fifing on our troops is expressly mentioned as the reason for

in QUALIFICATIONS OB BELLIGERENTS 41

standing in peace time, or supplemented by reservists on
mobilisation. The nations who have not established conscription
regard such a view as fatal to the cause of national defence.
The Hague solution is a compromise, which Germany, despite
its pledges in the Convention, will not even now accept as a
correct statement of the International Uw on the point. 1
Before I come to the Brussels discussion, I ahull try to show,
as briefly as possible, the historical evenU which gave the
question its great interest for the delegates. The events I
refer to are those connected with the French Francs-tireurs of
They are still instructive, though the matter has lost
most of its importance for the great European nations who
embody in their territorial reserve all able-bodied citizens of
fighting age not included in the rolls of the army, army reserve,
^anised national guard. A study of them enables one to
understand how civil populations, rising in what is termed a
fate en mots*, have come to be admitted under certain con-
ns to belligerent privileges, in the teeth of the opposition
>( the great military Powers. In France, the Franc-tireur is
dead, but the question which he begot is still alive and of vital

rtance for England, America, and other nations.
The levee en mam, or resistance by unorganised populations Tb birth
in large bodies, is as old as history, but its previous incarnations ^J^,
may be disregarded, for it was born an- w in modern times on qnintfan
2nd September, 1870. On that day MacMahon's troops, jl*t
disheartened by the hopeless succession of marches and counter- * MMe -
marches of the preceding weeks, baffled in every attempt to
break through the ring of steel and fire which crept through the
woods to encircle them in Sedan, hopelessly beaten in every
department of warfare except personal courage, paid the price
of thrir rulciV incptitiulf and criminal folly, and surrendered to
Prussian King or passed into Belgium to be disarmed, to
the number of nearly 100,000. At a blow an army was wiped
off the French army-list. Another army, Bazain's nearly
twice as strong was already shut up in Metz and lost to the
French cause. France had armies still, but her right hand was
led at Mete and Sedan. It was the loss of these two
led to the formation, throughout the con

WAR RIGHTS ON LAND

CHAP.

NAtKHl.ll

<iuani

,. MM

Franc*-

.r- ur .

> v ri".

.....

treat

the famous bodies of the Francs-tireurs and National Guards of
the Second Levy. Even without the two great initial disasters
of the war, such bodies would have sprung up in all probability,
but it was the necessity fora great national -tVort t<> stem th.
advance of the German hordes which produced the universal
uprising of citizen-armies of this kind. As to the National
Guards of the Second Levy, who were the less important body
of the two, they may be dismissed in a few words. They were
men of under forty, who had bought freedom from service in
the regular army, and were not sufficiently efficient to be
formed into the battalions of the First Levy. They wore no
uniform and kept their arms (which were supplied by the
State) concealed in woods and thickets, whence they assumed
th. m to lie in ambush for the Germans. 1 I shall give just one
example of how they were treated by the invaders. When
Gisors was captured in October, 1870, after being defended by
the National Guards of the Second Levy, the Prussians refused
to treat the latter as prisoners of war and shot five whom they
had captured. 2 Generally speaking, what I may say about the
Francs-tireurs may be held to apply equally to the less
numerous and less important body also.

As to the Francs-tireurs, they were of two kinds. Some were
authorised by Government and wore uniforms for instance,
the companies of volunteer Engineers, to operate on the
German communications, 3 and the mysterious company of the
Gers, consisting of 50 picked men, in a black uniform, with
skull and cross-bone facings, who never spoke ; 4 others fought
rely on their own initiative and for the most part were
distinguishable from the French peasants only by a badge which
was invisible at a distance and easily removable. 6 The distinc-
tion between the two kinds of Francs-tireurs has often been
overlooked by those who have written to the question of tin -il-
legitimacy.

It cannot be seriously questioned that those Francs-tin
who made themselves indistinguishable from the peaceable

1 The Franco-German War, 1870-1, by Generals and Other Officer* who !<,}
pcurtinit. Translated and edited by General Sir J. 1. M HUM. -(1'jwj, ,,. 546.
* GMwU's //Mtory, VoL I, p. 393.
Hosier, Franco- Pruuian War, VoL II, p. 90.

op. at. VoL n, p. 149.

Droop, op. cti. p. 705.

in QUALIFICATIONS OF BELLIGERENTS 43

population cither by removing their distinctive badge, or, M
some did, by changing into civilian garb alter coin acts

of aggression, 1 ware not entitled to belligerent right*. No
army commander will suffer his troops to be menaced by man
who < -I .inn now the privileges of combatant* now those of the
peaceful inhabitants. But the Germans, judging all the
Francft-tireuro by the offenders, adopted an unduly severe

ude towards nuch bodies generally. They declared by
Proclamation that th<>y would regard as soldiers only those who

vore a uniform with irremovable marks and recognisable at
gun-shot distance, and (2) carried papers showing that they
formed part of the French army. 1 All persons who fought
without fulfilling the above conditions were liable to ten years'
in aggravated cases, to death : and every case
in v. hi.-h a Franc- tireur shot a soldier was regarded as an
" aggravated * one.* The terms of the Proclamation were no
idle threat "A great number of Franca-tireure were shot after
capture, and the towns and villages suspected of com pi
with them were fined millions of francs." 4 At Ablis, between
Paris and Tours, the inhabitant* and a band of Francs-tireur*
attacked some German troops who were quartered there ; for

See Schiebert, Fnmco-Gtrma* War (Ferricr'i translation), p. 156;
Franco-derma* War, p. 646; Bunch, BUmartk, Vol. I, p. 196 ;
/Mtory. VoL II, p. 180 ("In the knapsack of each Franc tirew
found a complete rait of plain clothes"); German Official S/Mfory,
Vol. l.i it Even regular soldiers have been known to change into
garb to escape the fate ol belligerents. The Greek soldier, who were
Volo when it was occupied by the Turks in 1897 changed their uniforms for
ril dress; but tlun (ireek soldiers, like a certain Minor Prophet, are
capable of anything." (See Bigham, With the Twrkuk Army m Tfesn/y,
. VM

H. Sutherland Edwards, Tkt Gtrmami m Franc*, p. 152. The following
roclamation was posted outside Mett: "The Commandant-in Chief of the
d German Army again makes it known that each individual who does not
elong to the regular French army or Garde Mobile found bearing arms,
nder the name of Franc tireur or other designation, will be considered as a
raitor and hanged or shot at the place where he is taken without farther
onsideration. W -G. T. Robinson, Tke AefcvyW o/lfete (1874), p. l.
1 Kdwarda, op. cit . p. l&i

Martens, p. 979. He adds that one ft

out the execution of twenty-five Franca- tireur* was so uveroosK

task that he expired immediately after performing hie <l

the Franos-tireurs were punished by hanging. Casaell's history, VoL I.p. ttO;

44 WAR RIGHTS ON LAND CHAP.

this the town, and also a neighbouring village fV..m which the
Francs- tireurs had come, u r- burnt to the gn.uml next day.
This was but one of mi mix -rless instances. 1 A fine of a
million francs was imposed on any Department in which Francs-
n rears were encountered. 1 The uniformed and authorised
Francs- tireurs were subjected to the same stern rules as th -ir
blouse-clad, unauthorised fellows. Twenty-two men of the
company of the Gere were captured and ordered to be shot, but
th.-ir gallant bearing when paraded for execution raised tin-
enemy's admiration and they were spared a tribute to tin ir
personal courage, not an acknowledgment of their rights as
combatants,*

Coo The independent, roving warfare which the Francs- tin-m-s

waged was doubly harmful to the Germans. In the first place,

it endangered the lines of communications on which the hug
invading armies depended for their ammunition and supplies.
In the second, it hampered the Uhlan scouts. The latter were
the eyes and ears of the German armies ; riding ahead of the
main columns in small bodies, they felt the way for the slowly
advancing masses behind and also created a valuable moral
effect on the country by making the invaders appear ubiquit<>u>.
Many a district far from the path of the German columns was
awed into quietude by the daring confidence of a few of these
arrogant horsemen. The Francs- tireurs played an important
part in checking the raids of these "tentacular" Uhlana
When every tree and thicket might conceal a watchful
shooter, waiting with finger on trigger, the duty of the German
scouts became one of great danger and difficulty. 4 The very
severity with which the Francs-tireurs were treated is a tribute
to their effectiveness as fighters. One of the two conditions
which the German authorities imposed on them, the first, that
ihey should be distinguishable from the ordinary population i
clearly a reasonable one. 6 The other, which required an

nnm individual authorisation (appcl) in each case, is more doubtful.

*' :< In the Secession War, Sherman, whose views on every subject

1 Houer. Frwtro- Pnunan War, Vol. II, p. 77
Hotier, op. c*/. VoL II |

1 GMMlft ffi*ory, \ ,25. Ihid. p. 525.

Ac to the requirement that the distinctive badge should be recogim
goo-abol range, tee tyra, p. 57.

II!

QUALIFICATIONS OF BELLIGERENTS 45

.;.* nature are Mane and illuminating, made it a condition

precedent to the grant of combatant privileges to bodies of thus

i -cached from a main body, they must be of

sufficient strength, with wt 'lent from some army

commander, to do some mill tar, ' In other words,

intiftV*i upon an order being carried by the leader.

This requirement i- mily a reasonable precaution against

bandr iiut to ask, as the German* did, for an individual 7^ ot | >er

for each member of a body whose chief can <* *-

produce a written order from an army commander, and who are

ively dressed and known to act under a general

of the hostile Government, is to go beyond

reasonable requirement*. " It is doubtful/' says a German jurist,

ich a demand can be insisted upon. Some authority from

the commanders under whom these troops act, some uniform.

and the obm-nvi-.n of the laws of war, that is all that is

necessary, bn nt t<> entitle them to soldiers' rights." 1

Russian jurist, Professor de Martens, remarks as regards

reatment meted out to the Francs-tireure that " the public

m of the neutral States of Europe has found this conduct

!" the German military authorities too cruel" 8

the German methods were severe, they were at least Thai

The flying columns which brought sudden retribution
A onl and fire for any assistance given to that caput lujnnum,
the free-fighter, and even for failure to warn the invaders of
the presence of bodies of Francs-tireure, bred terror through-
out the country districts of France. The people were cowed
refusing their countrymen food and shelter. "In self-
nee," wrote the Tours correspondent of the Daily At** at
the time, " the Francs- tireurs are obliged to put illegal pressure
on those people whose patriotism is entirely regulated by a
care of jwkets. If they did not, what with the

disorganisation of the military commissariat and finance

1 Bowman and Irwin, Sktrman ami Hit Campaign (New York, 1866).
p.4.

Oeffcken rar Haflfer, quoted BonfiU, op. c*. wo. 1001.

1 La Paix ti la Gmrr* p. 374. On the Franca- tireura generally, ate Hall.
/M/CTMa/towo/ Law pt>w &22 S. TIM Oannan wmtranMOt in the naUar naa
ban ooodamnod by a majority of the manban of tha InatiUta of International
Law, at the Hague wanton of 1875 (Hall, o/> n>. p. 990, note).

46 WAR RIGHTS ON LAND CHAP.

departments, they would be left to die of fatigue and huni;
And Mr. Sut h. Hand Edwards says: "Towards the close of the
war, food and drink were often refused them [the Francs- tireurs],
the peasants having learned to look upon them as dangerous
guests, whose visits, if the Prussians suddenly arrived, meant
destruction for the houses in which they were being enter-
i.tinrd.' Recruiting for the irregular corps was stopped.
When the greatest of irregular fighters, Garibaldi, stricken \\ith
years and hardship, borne in a carriage (for he was too ill to
ride), came to bring his sword and his unrivalled knowledge of
guerilla warfare to the service of the Republic, he found a
universal apathy in south-eastern France which no appeal to
patriotism could dispel. He and his red-coats came in vain.
The people cheered them, but their sympathy stopped at
cheering. What happened at Beaune is typical of the general
terror which the fear of German reprisals had inspired. One of
Garibaldi's lieutenants, Colonel Teinturier, was sent to put
Beaune in a state of defence, as could easily have been done,
but the inhabitants begged him to abandon the town and leave
them to their fate. The schooling of the Prussians' flying
columns had killed even patriotism. 8

In nag* Before I come to the Brussels Conference, I must mention

l* rat J "J one case in which the strict war right regarding resistance I > y

rarii non-military citizens is waived under a general usage. This is

relaxed. tne cage Q f ft j^gy^ 8 i e ge or bombardment of a fortified town.

A commander who has forced a garrison to capitulate, does not

usually punish the inhabitants for joining in the defence, though

he is not bound by any Convention to show such leniency.

Indeed, as will appear later, 4 the civil inhabitants of a

beleaguered town are now given certain privileges, such as

tication of a bombardment (except in a surprise attack), and

in some cases permission to leave the fortress ; and it is also

usual for humane commanders to avoid deliberately shelling

the residential parts of a bombarded town. 5 In return for these

1 Caesell's /frtory, Vol. I, p. 386.

RdwanU, op. cti. p. 278. See also Cornell's ffidory, VoL I, p. 221.

Cassell't History, Vol. I, p. 486. * Vide infra, p. 171.

The firat privilege is founded on Convention (Hague, Article 26), the other
two are merely usage which has not become so general as to be universally

ill

QUALIFICATIONS OF BELLIGERENTS 47

special privileges, the inhabitant* ought in equity to abstain
part in the defence. But many another siege
besides that of Saragosaa has been prolonged through the
mingling of citiiens with soldiers in the trenches or on the
bastions, and a magnanimous victor is usually disposed to let
the general Hut-render serve as an act of indemnity and oblivion
for such irregular resistance. 1 It was so at the last siege of

Arthur. Professor Ariga says, " We captured many work-
men who participated in the defence of the forts and we

in." * At Kara the white- turbaned townsmen
helped the Turkish Troops under Colonel Williams, the English
commandant, and in the repulse of the great Russian assault of
29th September, 1855, 101 of these townspeople fell in battle.

li.-n Williams capitulated to Mouravieff, the latter granted
full protection to all the inhabitants without exception.* In
Osnuin P.i-h;i '> li.-r-.u- ,1,-trnr,- ,,t |'l-\ 11:1111 IsTT. th.- inh.il.ii.int-
of the town and district were armed and fought in the trenches
ncurringany punishment from the Russian commander
after Osman's capitulation 4

is instructive to compare the Hague rules as to the The
qualification of belligerents with the original Russian project
he Brussels Conference. The latter was as follows :

() The rights of belligerent* ahall not only be enjoyed by the

army, but also by the militia and volunteers in the following cases :

'. having at their head a person responsible for his sub-

ites, they are at the same time subject to orders horn

headquarters ; J If they wear some distinctive badge, recognisable

at a distance; 3. If they carry arms openly; and 4. If, in their

operations they conform to the laws, customs, and procedure of

war. Armed bands not complying with the above-mentioned

tions shall not possess the rights of belligerents; they shall

not be considered as regular enemies, and in case of capture shall

be proceeded against judicially.

(6) The armed forces of belligerent States are composed of
combatants and non-combatants. The first take an active and

S. Ridey, TkeLavtf War (1W7X P- 117, hold, that " the inhabitant*
of fortified town, ara so okwilj atsodatod with the gmrrwon that they *
considered to have loot their non-oonbaUnt chaimctor."

Ariga, op. <*. p. 90.

NoUn, H or Again* RUM^. VoL II. pp. fltt,
4 Voo Pfeil*. Arjttrimctt, p. 64.

48 WAR RIGHTS ON LAND CHAP.

direct part in warlike operations ; the second, though forming part
of the army, belong to different branches of the military orgui
tion ; such are those ministering to n-1. .mts, the medial

and control departments, the administration of justice, or those
who may be attached to the army. In case of capture by tin-
enemy, non-combatants shall enjoy equally with the first, the
right* of prisoners of war; doctors, the auxiliary person m- 1
of the ambulances, and clergymen enjoy, moreover, the rights of
neutrality.

(c) The inhabitants of a district not already occupied by tin-
enemy, who shall take up arms in the defence of their country,
ought to be regarded as belligerents, and if captured should be
considered as prisoners of war.

(d) Individuals belonging to the populations of a country in
which the enemy's power is already established, who shall rise in
arms against them, maybe handed over to justice, and are nt
regarded as prisoners of war.

() Individuals who at one time take part independently in the
operations of war, and at another return to their pacific occupat i
not fulfilling generally the conditions of paragraphs (a) and (6), do
not enjoy the rights of belligerents, and are amenable, in case of
capture, to military justice. 1

The foregoing five Articles are now, in consequence of
modifications and suppressions, represented by Articles I, II,
and III of the Hague Riglement.

The delegates at Brussels were divided into two camps- one
representing the interests of great armies, the other those of
England, Spain, and the lesser European States. I shall give
the main arguments on each side in the very words used at the
Conference. The first extract is a quotation from War in its
Relations to International Law, by M. Rolin-Jacquemyns, and
was adopted by the President, Baron Jomini, in terms as
expressing his opinion exactly. The other extracts are from
the speeches of the German and Russian delegates.

(I) The "What is to be desired is that in future free populations should
view* of have sufficient firmness and forethought to acquire a strong
2t^y* military organisation, based upon the equal participation of all in
the defence of their country. This is for them, not only a
national, but a humane duty ; for the more the war is conducted
on both sides by regular and disciplined troops, the less will
humanity suffer. There is no doubt room for the most noble

1 For (a) and (6), see Brunei* B. B. p. 102 ; for (c), (d), and (e), do.

IN QUALIFICATIONS OF BELLIGERENTS 49

feeling and the molt heroic conduct elsewhere than under a

iM-l it iiiunt be admitted that amongst those unfortunau-

peasant* who were H!I. f the law* of war, many were

y of nothing more than having obeyed an instinctive and

almost irresistible sentiment of local patriotUin. It nmt, however,

be admitted, on the other hand, ihm this kind of rmistano*,

uvasion, muni inevitably lead on the one side to marauding
and iU wont excesses, and on the other to -evens
.....

The following are the respective right*, duties, and interest* of
the attacking State and of the State attacked in connection with

<t* * uttUM." The party attacked has the incontestable

defence without any restriction whatever. This is a

acred right which our Government has never had any idea of

restraining in any manner whatsoever. . . . But co-existing with

right, is the duty of the party attacked to act in conformity
with the laws and usages of war, so as to prevent the struggle
becoming savage and barbarous. I will add that the real interest
of the party attacked demands that his defence should be organised,
as mu.-li f.'t the sake of internal security, as to render his own
defence effective, and also with the view of being able to require
the aggressor himself to act in conformity with the laws and
uages of war. The duty of the aggressor is to respect national
defence as long as that defence is in conformity with the laws of
war, and it is his interest that such defence be regulated in order
that he may avoid having recourse to severe measures, which the
violation of the laws and usages of war would inevitably compel

to take. If, however, the defenders fail in their duty, the
aggressor acquires from this very fact the right to release himself
from observing the laws and customs of war in MI. h proportion as
b required for his own safety. 1 .In j-i ,:...;'. it lias been
unanimously laid down and recognised by all the member* of the
Committee that the patriotic feeling which impel* all the able-
bodied men of a nation to take up arms in defence of the
national territory if invaded, is not only an imprescriptible riijlit.
but also a sacred duty. On the other hand, it has been admitt.il
this patriotic enthusiasm were left to iUelf, without
direction, without organisation, without roles, without precautions,
it would cause very serious inconvenience, as much from the point
of view of the public security of the country itself, as from that

R a p. 948.

/Wei. p 300. See in ibis connection Da iiartans, p. 881, who
out that the history of the Paris Commune ooght to remind vary
for %U time of this (met, that it ia assisr to dfctrilmta snas than to

SBSSl

WAR RIGHTS ON LAND CHAP

of the efficiency of the defence, and of the character of extreme
violence which a straggle under such conditions would inevitably
aniline. 1 .... Unorganised forces, without a superior command
ing officer, without direction, without rules, led on only by a
patriotic impulse, could not observe the laws and customs of war
of which they are ignorant.* .... There are two kinds of
patriotism, that which acts under regulation and that which does
not Which is preferable for defence? Evidently that wliirli
acts under regulation. 8 . . . Both a Uvte en masse and a levS? in a
ii^trict must be organised in the same manner as laid down in
Article (a) [I of Hague] for the case of other combatants. 4

The The opposite view found its chief supporters in the representa-
tives of Spain, Belgium, Holland, and Switzerland the last
three being, curiously enough, perhaps the only European
countries in which there has been no instance of a levte. en masse
during the Christian era. 6 I shall give extracts from the
speeches made by these delegates also.

When every nation has organised its forces for a regular war,
when on all sides men are ready to march at the sound of the
first cannon shot, numerical force will never be on the side of the
secondary States. It is therefore in their interest especially that
it is necessary to preserve intact that powerful lever called
patriotism, that feeling which makes heroes, and to which all the
States here represented owe those pages of their history of which
they are most proud. 6 . . . Baron Lambermont would contemplate
with regret the chances of its being said that the Conference has
been more careful with regard to the material than with regard to
the moral side of the question; that it was too exclusively
occupied with the means of insuring the tranquillity or the security
of populations who would be led to look upon the proposed Con-
vention as only an insurance contract against the evils of war.
As it has already several times been pointed out by the delegate
of teelgium, and as it was only yesterday stated by the President,
the defence of a country is not only the right, but also the <lut y
of a population. Events take place during war which will
continue to take place, and which must be accepted. But the
question before them is that of converting them into laws, into
positive and International rules. If citizens are to be sacrificed
for having attempted to defend their country at the peril of their
lives, they need not find inscribed on the post at the foot of which

1 Brands B. B p. 267. f Ibid. p. 265.

Ibid. p. 204. Ibid. p. 263.

De Martens, p. 377 (from Brialmont'a L'Angletcrre et let petit* titati).
BruMwu B. D. p. 200.

MI yUALII RATIONS OF BELLIGERENTS 51

are about to be shot the Article of Treaty signed by their
Govern in

are facu * .-...ul.l lie bettor not to reguUt*

be not agreed M to the tenor of a provision regulating the
of taking op arms in an occupied territory. 1 .... The
proposal would amount to a decree of moral disarmament
in advance.

ho smaller Powers towards the question of the
disqualifies inhabitants of an occupied

is well expressed in a remark made by the Net
delegate at the first Hague Conference. M Our count
said, " is of such small extent that it might be surprised and
almost entirely in two days, our army being hurled
on Antwerp and unable to resist Could we, in view of
a serious situation, relieve our citizens in any way of their

by seeming (at least) to dissuade tl.
' ontributing to the resistance ?"*

n-Milt of the discussion was that the final sentence of the
proposed Article (a), and the proposed Articles (d) and (e) were
oppressed

h delegate raised another point, that of a man
< his house against the plunderers and stragglers of an
army 1 - man's is legitimate, he could not bedefoooeof

treated as a non-belligerent" He proposed the following text
ot the point :

TV individual captured bearing arms in defence of his country,
and who has acted in conformity with the laws and customs of
war, shall be considered as a belligerent, and be treated as a
prisoner of war.*

No agreement could be reached on this point The Belgian
delegate pointed out that " if individuals are not mentioned in
any clause, it must not be argued a conirario that they are
beyond the pale of the law ; the special case of individuals
:<g separately in anon-occupied country, will remain, with
many others, in the unwritten law/' 4 and summing up the
results of the whole discussion on belligerent qualifications, he

a R p. 264. Hague 1 a a p. 6&

1 BruMcU H. B. p. Oft. Ibid. p. 96ft.

}. J

52 WAR RIGHTS ON LAND CHAP.

remarked that two cases had not been legislated for and \\--n-
lea to UK- unwritten law of nations:

(1) The case of a citizen, who, acting singly and in an
unoccupied part of the country, should commit hostile acts,
in- r instance, to impede the advance of the enem \

(2) The case of a population taking up arms to resist a
host i ! army in an occupied territory. 1

(l) That As to the first of these two cases, it is very doubtful if
iJjjJT" combatant rights would be granted to an individual inhabitant
of an unoccupied country who bore arms against an invading
army : as, for instance, Mr. Brown in An Englishman's Home*

i uni- it fa f or matted action, not for individual action, that the
Hague Conference has secured belligerent privileges in such
cases. As a French jurist observes, for a levee en masse in an
unoccupied territory, "the character of belligerents results
In >iu the resistance of a respectable number/' 8 Sherman re-
quired proof from irregulars that they were authorised
combatants 4 and the Germans insisted still more strongly on
this point in the case of the French Francs-tireurs. So far as
organised bodies of troops are concerned, the latter power has
now receded from its position of 1870-1, but it still insists on
the necessity for such proof in the case of individuals : witness
the following extract from the official manual :

From the military point of view, there is no great objection to
waiving the demand for an authority from the Government, when
a question of organised units ; but, where individual enemies
are concerned, it is impossible to forgo the requirement of
proof that they belong to an organised body, to entitle them to
treatment as belligerents and not as bandits. 6

One finds the same view emerging in the South African War.
The British authorities refused to treat snipers, or individuals
who carried on hostilities without belonging to any commando,
as proper combatants. They ordered them either to desist
from sniping or to go regularly on commando, and burnt their
farms down if they disobeyed, or, when they could catch them,
imprisoned or deported them. 8 One can hardly question a com-

1 Brawls B. B. p. 294. * Vide, supra, p. 16.

s BoofiU, op. tit. MC. 1097. 4 ,, p. 45.

ft Kritgibruwh im Landkrieye, p. 6. infra, p. 62.

111 QUALIFICATIONS OF BELLIGERENTS 53

m*nder's right to treat sue 1 1 individual fighters an illegitimate
combatants, in the absence of proof to the contrary. No
invader will suffer the " peaceable " inhabitant to indulge in
some amateur hedgerow fighting m hi- spare moments, and

it would be

to disintegrate and to forbid its leader ever to detach one or
two men for a special service to blow up a bridge, perhaps, or
to carry despatches, or to signal to other bodies military

iicies appear to j * merit of some proof r

-ti'*h i tls are not inhabitants meddling improperly with

hostilities. The question of qualification would ordinarily arise
illy on the capture of the suspected persons, and if they c<ui<i
produce some authority, duly attested, showing that they

iged to a Uvfa en mtuse, which levto was recognised by
capturing belligerent, the la' ild hardly refuse t).

combatant rights without rendering his recognition of the
v belong to illusory.

The second case is more open to doubt as to the manner in <2)
which any separate Government would regard it. From what n ing in
has been said in th- . .-uli.-r part of the present chapter, it"
follows that the claim of an unrestricted right of resistance on tone*,
the part of the ordinary inhabitants of an occupied country can-
not be admitted unless the separation of combatants and non-
combatants is to be abandoned ; and it is greatly to the advan-
tage of the world at large that this separation should be main-
tained. Inhabitants who rise in an occupied territory have no
rights under international agreement Conventional war law
deals with them, as it deals with spies, on the broad principle (a
iple not unknown to humanity in other spheres of action)
he who tries and fail* is entitled to no consideration. As
n war law stands, it would be the most desperate and
n of expedients for a population to take arms against an
occupying army of Germans, Russians, or Austrian*. Baron
Jomini said at Brussels :

A population will not attempt to rise unless it believes itself to
be in a position to drive out the enemy ; if it succeed* in thin

the occupation ceases. If, however, it IMS overrate- 1
strength, it will suffer the harsh consequence* of such rising,
reprisals to which the inhabitants render themselves liable will

54 WAR RIGHTS ON LAND CHAP.

teach thorn that they are doing no service to their country by
ait<-mptin- to throw off a yoke from which they cannot escape. 1

Briiiih As a counterblast to the opinion here expressed, Sir John
. Ardagh, first technical delegate of Great Britain to the Hague
Conference of 1899, proposed to supplement Articles I and 1 1
of the Plglcmrnt by the following provision :

Nothing in this chapter is to be considered as tending to
modify or suppress the right which a population of an invaded
country possesses of fulfilling its duty of offering the most enei
national resistance to the invaders by every means in its power. 2

The German military delegate at the Hague refused point-blank
to agree to this proposal. " I cannot," he said, " take one single
further step in following those who proclaim an absolute liberty
of defence." The British proposal was withdrawn, but its
intention was met, to some degree, by the Declaration which
was prefixed to the Rtglement, and which commends cases not
legislated for, and especially those connected with Articles I
and II, to the safeguard and government of the principles of
International Law (see p. 9 and 10, above). The treatment
accorded to a popular levde in an occupied country will therefore
depend on the interpretation of the general principles of war
law on the point ; and this will vary, no doubt, according to the
views of the nation interpreting them, as indicated in the very
diverse opinions expressed on behalf of Great Britain, Germany,
Belgium, etc., at Brussels and the Hague.

The ooo- It cannot be pretended that the two great International
lawofwar Co * 61 " 60068 nave left the question of belligerent qualification in
a very satisfactory state. The very important question of risings
in an occupied territory has not been legislated for at all, and as
regards unoccupied districts, two Articles have been approved
which are to some extent mutually destructive. The one
Article I is designed to meet the views of the great
Continental Powers who have adopted universal service and
who look askance at all unorganised resistance. The other-
Article II is the tribute of the Conferences to the divine
right of national defence. One may almost say that the dele-
gates endeavoured to reconcile the elements of sheer, undiluted

B. B. p. 266. * Hague 1 B. B. p. 199.

111 QUALIFICATIONS OF BM.l.K.I-Kl \TS 55

militarism and sheer, un.lilut.-d patriotism (if one may to call
1 1..- view which champions spontaneous, unorganised, national
resistance), and that the auluti..n In- n .1 resulted in a socoess-
i-ii hemical blend. Instead of drafting a single Article which

1 satisfy the two com' rests, the delegates have

almtuit nhirked their task a task of very great difficult
must be admitted and have tried to satisfy both, separately
a way that will hanlly . in practice, be found to please either. The
German General Start fticial manual, boldly refuses to

effect to Article II. It admits that weak nations can The
never be deprived of the right to defend their soil by
resorting to the ta*0 en nuuw the call of the nation to*few
arms; and it admit* furth. -r that the Hague RigUment
has, in terms, secured belligerent privileges for such fotet
rvi | uiring them to fulfil the conditions demanded
1 volunteers; but it goes on to
affirm, in words which are undoubtedly weighty and which

1 be weightier still if the German delegates had not agreed

to Art II at the Hague, that to demand the fulfilment of

these conditions of a Irvtt en masse is in no wise to hinder the

ii from taking arms, but only to oblige it to do so in

unity with accepted rules. The official jurist quotes and
endorses the view of Lueder that the demand for subordination
to responsible chiefs, for a military organisation, and for diet

marks, cannot be given up without engendering a strife of
individual against individual which would be a far worse calamity
than anything likely to result from the restriction of combatant

leges. 1 Professor Ariga, too, speaking out of his experience of
a great modern war, holds i cle II seems to destroy An

I, and asks, " ought not this Article (II) to be suppressed as it
always gives rise to discussion ? " * To this it is unlikely that
the smaller Powers and England will agree, but there does not
appear to be any insuperable difficulty involved in requiring
massed Urifs to be commanded by some responsibl ven

it th<- condition as to distinctive marks is waived. Indeed, the
new provision as to the payment of an indemnity seems to
make it essential that the to* shall be subordinate to a leader

pp. 7-8.
Ariga, op. c*. pp. 85-7.

$ 6 WAR RIGHTS ON LAND CHAP.

who in responsible tor its actions. It is idle to suppose that
the question is settled. Th< n> must be stum-thing amiss \vith
a solution which one great Power finds impracticable in war
and whi.-h .mother flatly refuses to accept. Passive resistance
and the demand for repeal are evidences of unsuccessful legis-
lation. The question must b thnshed out again: it handled
\Mth courage and in a reasonable spirit of compromise, it
8oguxl appears quite capable of being satisfactorily legislated for. Th<
points which have to be provided for seem to be, roughly, the
following:

To be entitled to belligerent rights, troops must fulfil the
following conditions :

(1) They must present some guarantee that they are civilised
troops, not bandits ; therefore they must

(a) in actual practice, observe the laws of war, and

(6) be commanded by a responsible chief, who shall be

answerable for their conduct.

> Their status as active enemies (as distinct from the peaceable
inhabitants) must be quite apparent ; therefore they must
(a) carry arms openly ;

(6) have a uniform or a distinctive, external, irremovable
mark to indicate their character. But this last condition
may be waived in the case of the population of an un-
occupied district which rises on the enemy's approach,
provided that the other conditions specified above are
complied with. Detached individuals or small bodies of
such a levte en masse must be prepared to prove their
permanent belligerent character either by external dis-
tinguishing marks or by satisfactory documentary evidence
that they act under the orders of the commander of the

I make no suggestion, it will be seen, as regards risings in an
occupied district, and such levees would therefore not be entitled
to combatant rights, under conventional war law, unless they
complied with the conditions (1) (a) and (b) and (2) (a) and the
first sentence of (2) (b).

A few remarks are necessary as to the wording of the three
The four Hague Articles.

conditions

of Article Article I. The four conditions must be united, to secure
recognition of belligerent status. 1

1 Brussels B. B. p. 262.

111 OUAI.IHCATIONS OF BM.I.h .KKENTS 57

The " distinctive emblem " does not mean a uniform. The Th* 4fe.
delegates of Norway and Sweden had pointed out that the
Norwegian Landsturm did not wear a full uniform. But the
sign must be fixed externally, so as not to be assumed or

concealed at will. 1

At the Hague Conference of 1907, Germany proposed that
of tho distinctive emblem should bo provided for,
but tho proposal was defeated in committee. rsqoired.

At what distance should the sign bo recognisable ? The
German los demanded in 1870 that the French irregulars

should be distinguishable at rifle range. This, says an eminent ahle at.
English jurist, is M to ask not only for a complete* uniform but
for a conspicuous one." * When rifles are sighted to 2,000 yards
and over, the German requirement is clearly unreasonable. If
the sign is recognisable at the distance at which the naked eye
can distinguish the form and colour of a person's dress,
all reasonable requirements appear to be met* At the com-
mencement of the Russo-Japanese War, the Russian Govern-
ment addressed a Note to Tokio, stating that Russia had approved
t he formation of certain free corps composed of Russian subjects
lie seat of war, and that these corps would wear no uniform
but only a distinctive sign on the cap or sleeve. Japan
replied :

The Japanese Government cannot consider as belligerents the
corpc mentioned in the Russian Note, unless they can be
by the naked eye from A* ordinary people or fulfil

the conditions required for militia or volunteers by the Hague

"Volunteers" is intended to cover "free corps" (U* corps Voha.

Article II. The word "spontaneously indicates a concession
. "This is demanding less than if an order of

1 Brussels R B. pp. 262-3, 966. Hall, Imltmatiomal La*, p. 523.

4 Ariga, op. nt. pp. 86-4. (It was not, of course, a question here of a
Its* en fwissf, for Japan was not in vading Russian territory.) Kren when a
complete uniform is worn, there is always the probability of mistaking tho
nationality of individual officer* or men. The P~- * snsnrthnss mistrfmlr
the English officers, in their gray coats, for Russians in the Crimean War.
(Kinglake's Otmeo, VoL V, p. 379.) Brussels R R, p. 9HL

58 WAR RIGHTS ON LAND CHAP.

the Qovrrnnx nt were required, which might often not reach
tho volunteers" [i.e. ktv

So dw The word " territory " was used instead of locality because
th- lattor might imply that, in a territory containing various
towns and villages ("localities"), each separate locality HUM
abstain from action till actually threatened. This would
render the principle of a levet en masse illusory. 2

Panto" Article III. The word "parties " was adopted in prefer

to " States," as including such non-State belligerents as the
" Sunderbund," the Secessionists, etc. 8

The word The non-combatants dealt with in this article form an
jJJJJ^. integral part of an army. The word " non-combatant " is u

nu"uwd in two different senses in war law. (1) It is used of the non-
military inhabitants of a country which is the seat of war, wh>
take no part in the conflict, and who, if they feel the effect of
the backwash of the war, only do so because of the ample
sea-room which belligerents require. (2) It is used, as in this
Article, of the troops, commissioned and enlisted, forming part of
th<> regular, militia, or volunteer organisation whose function is
ancillary to that of the fighting men and who do not them-
selves oppose the enemy arms in hand. The troops of th<
commissariat and intendance, of the veterinary service, of the
pay and accounting department, orderlies, clerks, bandsmen,
ibatants in the sense of Article III. So, too, are the
medical personnel and army chaplains, who, however, are further
protected by the Geneva Convention. At Brussels it was
proposed that a clause be inserted stating that non-combatants
of this kind " are exposed to the same vicissitudes and dangers
of war as the corps to which they are attached, but that they
can only be engaged in an isolated combat in consequence of a
mistake and that they have the right to defend themselves."
The proposal was not pressed, the committee having agreed
that this clause was " understood." 4 The non-combatants
referred to cannot, of course, claim any preferential treatment if
they abandon their proper duties and take an active part in
hostilities. " All these persons have not the right to use force ;
they are not combatants strictly speaking.' 1 6

1 Bnmeb B. B. p. 293. * Ibid. p. 294. * Ibid. p. 259. 4 Ibid. p. 258.
* Bontilft, op. cit. sec. 1099. Aa to military non-combatants generally, see
Fillet, op. cii. pp. 47-8.

111 (JUALIFICATIONS OF BELLIGERENTS 59

A modern instance of * kvto * m*m is found in the Boer Miern
forces who fought in the war of 18991901 Although ^

le II of the RigUmtnt refers only to resistance to an The
invading army and its extension to the oate of a ba* who act on
the aggressive and carry the war into the enemy's country (as
the Boer il. th<> Kn^liah Government did not

take up the position tha opponents lacked belligerent

status Although the Transvaal and Free State Government*
were not parties to the diplomatic act of the Hague, its
principles were adhered to by both belligerents during the
war. The Boer forces did not fulfil all the conditions of
Article I of the RigltmtiU, and therefore, for the purpose of
classification, they would seem to come under Article II rather
than Article 1

llusso-Japanese War, Professor Ariga relates that the
Japanese took advantage of Article II of the Hague to
organise a levy at Niou-tsia-toun, a town in the rear of the
Japanese army of Manchuria, against which General Mistchenko legiii.
made a raid in February, 1905, through neutral territory. The
individuals who were mustered to defend the town wore no

xtive sign and only carried pistols, which could not be
considered arms "carried openly." As the Hague condition
that a farif * matte must carry arms openly was not then in
force (being added at the Conference of 1907), Professor Ariga
considers that the requirements of Article II were fulfilled and
that the men were legitimate combatants. 1 This case is

1 Ttu Timt* //irforion of (Ac War (Vol. II, p. 274, note) is of opinion that
the BritUh Government should have stated at the ontaet that it would refuse
to treat ununifonned commando* of the Boen aa belligerent* on BritUh toil.
"A declaration that all armed man made prieonera on British territory, and
Mi wearing tome permanent and

them aa belonging to the Republican forces, would be treated aa bandiuand
be liable to be thot without ceremony, would have had an excellent effect and
might have delayed or possibly h

while it would have been in perfect conformity with the Hague
the Laws and Customs of War (Articles I and II). " It is here assumed that a
Its* en mow must watt within its own border*, and cannot retain its com-
batant utu if it acts on the offensive, though to do so may be ite only
possible effective mode of defence. This assumption is at least open to
argument, and one shudders to think of the retaliations which might hare
ensued had the Britbh Government acted upon it.
iga, op. e& pp. 83-4.

60 WAR RIGHTS ON LAND CHAP.

particularly instructive as showing the application to the
inhabitants in the rear of an army of a provision which was
discussed and sanctioned in connection with the defence of an
otherwise undefended territory by its massed citizens. Tin
analogy is clear and Professor Ariga's ruling seems sound. 1
UM other An instance of an illegitimate Uvte en masse occurred in
Saghalicn in the same war. When the island was occupied by
the Japanese in July, 1904, the town of Vladimirovka W.MS
(I* -fended by volunteers who had no commander, no unifm-m,
and could not be distinguished from the ordinary inhabitants
with whom they were mingled. They were annl with hunt-
ing rifles, pistols, lances, and hatchets. About 150 or hi"
u* iv taken prisoners by the Japanese, and of these 120
condemned to death by court-martial. They were not
belligerents conforming to Article I of the Hague, and Art irl-
II gives combatant status only to men who "respect the
customs and laws of war." These Saghalien volunteers were
Russian convicts who could not have any acquaintance with
the laws of war, and Professor Ariga holds that they were
rightly condemned on this ground. At the court-martial an
additional reason for condemning them was advanced, namely,
that Article II only refers to ordinary inhabitants taking up
arms to defend their homes and country, and cannot refer to
such a case as the defence of a convict island by the convicts
thereon. 8

With the grounds for condemnation given in Professor
Ariga's book I cannot entirely agree. Human character is
complex, and even a convict may be a patriotic citizen, eager
to defend the soil of the land whose laws he has brok< n. lie
i* no more necessarily ignorant of the laws and customs of war
t h.m the chance citizen who takes arms in a levee en masse.
H.-wever, in this particular Saghalien case, the facts that the
Volunteers were undistinguishable from the peaceable popula-
tion, either because they wore no distinctive marks or because
they had removed such as they had, and took no steps to
separate themselves into a denned, though not necessarily
uniformed or organised, band, seem to me to have been

1 Ariga, op. fit. p. 89. I Lid. pp. 86, 87.

in QUALIFICATIONS OK HI 1 .1 .H ,1 KKNTS 61

sufficient warranty for the drastic measures adopted. An
invader must know who are bin active foes and who are non-
eombatanta, and it IB only to a body of men whose combatant
character ia dear and unmistakable that he can, with due
regard to bin own interests, allow belligerent right* under the
second article of the RlgUment.

There in a good deal of misconception as to the position

national Law. In the Tkrte Yearn' War,

tiaan d. \\ is at pains to show that his was not a

Da but a legitimate warfare. 1 The fact is, of course,
that it wan nothing but guerilla war, and was perfectly l .
mat*- lla war is but one of the many methods of making

war. It is a war of " fighting and running away," of pin-pricks

id of sabre-cuts. It is M a system of surprise marches, of
attacking the enemy's weak points, of cutt .- railways, of

seizing their isolated garrisons, and of skilfully avoiding capt
by rapid flight from pursuing columns.* Guerilla fighters make

nerny's communications, convoys, stragglers, the chief
<! ih.-ir attacks. But, provided always they act on
behalf of a recognised belligerent Government, and comply
generally with the Hague conditions for belligerency, t:
cannot bo considered unlawful combatants by reason of their
im th<xl> ..t war. You will si-arch the Hague RtgltnuiU in
says General den Beer Portugael, the eminent Dutch
soldier and authority on International Law, " for any disposition
l war by small bodies of troops, or guerilla war." * In
the Secession War, the Confederate leaders, Wheeler (who
lived to command the United States cavalry in Cuba), Forrest,
Morgan, and Mosby, carried on this form of warfare independ-
ent 1\ ..f th. regular operations of the main Southern armies,
and the Washington G<>\ t showed no disposition to

treat them as unlawful belligerents. When, however, upon th.-
surrender of Lee's and J. E. Johnston's armies and the collapse

Confederacy, certain of the Confederate commanders
were thought to be contemplating a continued resistance on

lla lines, the Federal authorities refused to regard such

Arw IW.' War, p. 382.

* Tim. History, Vol. IV. ,,. 300, on Do Weft Uclic..
' Rtwm cfo D*X Ifowitt, 1st November, 19UI. p. 49.

62 WAR RIGHTS ON LAND CHAP.

guerilla bands as possessing belligerent status. On 17th May,
1865, Grant wrote to Sh. nd.-m :

It Kirlty Smith [a Confederate general] holds out, without even
an ostensible Government to receive orders from or to report to, IM
and his men are not entitled to the consideration due to an
acknowledged belligerent. Theirs is the condition of outlaws, 1 1 ia k i i\#
war against the Government having an existence over the territory
where war is now being waged. 1

One of the phases of guerilla war is the employment of isolated
individuals or small bodies of marksmen to delay the enemy's
movements by means of a desultory " sniping " from cover. In
the Cuban Campaign of 1898 the American troops suffered
much loss in consequence of Spanish guerillas of this kind. \vh
posted themselves in trees and fired therefrom upon any parties
of the enemy who exposed themselves. They were accused of
firing on the doctors, litter-bearers and wounded, and some
were said to have donned American uniform, but it is doubtful
if such breaches of the laws of war could be proved against
them. It may be, as the very impartial American histnri .m.
Mr. Titherington, observes, that the adoption of this form of
fighting was " a blemish upon Spanish chivalry," since it " adds
to the horrors of war but could never win a battle or change
the course of a campaign." 2 But it is capable of being justified
on the ground that it may delay an advance and affect the
moral of an opposing army, and it is not forbidden by the
existing laws of war.

,. r ,' ri An instructive ruling was issued in this connection by the

British authorities during the South African War; after
declaring that " marauding " is an offence punishable by death,
it defines marauding as follows :

Marauding consists of acts of hostility committed by persons not
belonging to an organised body authorised by a recognised Govern-
ment'

In the Paper* relating to Martial Law in South Africa one may

1 Sberidan'i Memoir*, VoL II, p. 208.

Titherington, History of the Spanish- American War, p. 243. See
Roonevelt, The Rough Rider*, p. 172; J. B. Atkins, The War in Cuba,

QuoUd Blue Book, Paper* on Martial Law, South Afna (CM. 981),

111

QUALIFICATIONS OI HI I I IGERENTS 63

find a reoor . o Boers being sentenced, at Harrismith,

Orange I y, to two years' imprisonment with hard

Labour, for "committing an act of hostility as a maraud*

op* when not on commando." Shortly

before this (October, 1900), no fewer than sixteen Boers were

sentenced to various terms of imprisonmi n each case)

" commit t mi? an act of hostility he at the same time not being

a person belonging to any commando or organised military

body authorised by any recognised Government, nor under any

military orders of any officers of any Government." The

sentences in these latter cases were commuted to deportation

as prisoners of war. 1 In many cases, snipers were punished by

ng their farms burnt down. One finds, for instance, in the

Return of buildings burnt between June, 1900, and January,

1901, that the farm of a certain burgher was destroyed because

14 his men never offered organised resistance, but sniped scouts

tin- hills." also the farms of two other men who "were

warned that if they did not either join a recognised commando

uses would be burnt " ; and six others were

irly punished for not heeding a warning to cease sniping. 2

t" the British military authorities in these cases

was justified by the special circumstances of the war. The

i'atant Boers could n<t be distinguished from those who

had taken the oath of neutrality or had not borne arms at all ;

nctive feature of the authorised Boer forces was the

coherent commando, and the men who carried on an isolated

guerilla or sniping war could not complain if th.-\ were assumed

to be unauthorised combatants. They fought at their own risk

in more senses than one. To prevent " maraud was

necessary for the British troops to treat all snipers as

marauder- m t h<> absence of proof to the contrary which could

thm. in the event of the snipers being

captured. Hut th.- Kn^lish Government went too far when it

proscribed all guerilla fighting, as it did later on. Both

1 Quoted Blue Book, Pap** on Martial Law, Soutk Africa (Cd. 961).
p. 901.

* K<i*r* of Building* Bmml ,<a<-A monlkfrom /KM, 1900, to January. 1901
3M). See ftk*? CVmtqponrf tnft, ate. ftafuwa tkr (\immamftt m Cbitf,

Sm/A 4/rva, awf lA fiber Qommmmdu*, as to Imtruttiitm / proprriy (Cd.

64 WAR RIGHTS ON LAND CHAP.

h Republics had been annexed in 1900, but neither was conquered
until nearly two years later. Their Governments were still in
existence, and if they had no settled abode but issued their
orders from a railway carriage, a northern village, or a farm-
Afrkm. house in the safety of a mountain fastness, they were still
a factor in the political situation and their authority was
recognised by the leaders in the field. Mr. Gibson Bowlei
pointed out in the House of Commons that Ring David himself
was once a " perambulating Government." It cannot be said
that, in the latter half of the year 1901, the Boer armies had
been overcome in the same manner as the Confederate armies
in 1865. But Lord's Kitchener's Proclamation of 7th August,
1901, took up the position, which was strongly supported by
Mr. Chamberlain at home, that combatants in small bodies, who
were not able to repel the invader, but only to harass him, \vnv
not proper belligerents ; and on this ground pronounced sentence
of banishment against all leaders who should not have sur-
rendered by 15th September of the same year. 1 The opinion of
continental jurists condemned this Proclamation, which was
moreover denounced in the House of Commons by so eminent
an authority as Sir William Harcourt. In a letter to Tlie
Times, Sir William quoted from a despatch of the Duke of
Wellington, dated August, 1809 :

The guerillas should be employed on the enemy's communicat ,
. . . They should avoid general actions, but should take advantage
f the strong posts in their country to defend themselves and harass
the enemy. 2

1 Proclamations from- 1900-1902, Pretoria, 1902, pp. 154-5 ; Do Wet, o;
p. 82 ; Time History, Vol. V, p. 322.

1 rimw, 8th November, 1901. The Spanish guerillas in the Peninsula are
the stock " shocking example "the " Helot in his cups "for those who
condemn guerilla warfare without reservation. They were undoubtedly
guilty of many excesses. "Theirs was a war of extermination. N-
those courtesies which render modern warfare endurable were granted to
their opponents ; the deadliest hostility was unmitigated by success, and
when vanquished, expecting no quarter from the French, they never thought
of extending it to those who unfortunately became their prisoners " (Maxwell's
Wellington, Vol. II, p. 149, from Southey). The French retaliated by
atrocities on their part. Home of the guerillas who were captured in the
mountains of Guadarama were nailed to the trees and left there to expire
lowly of hanger and thirst. To the same trees, before a week had elapsed,
a similar number of French soldiers were affixed by the guerillas (p. I ."*!).

IN QUALIFICATIONS OF BELLIGERENTS 65

In tl.- .n.l the Proclamation became a dead letter, the

sentence of banishment never being executed 1 Ii forma,

fore, no precedent for action in future wan and, in any

eaae, even if the threat had been acted upon, one would have to

regard the case, juridically, as one of those referred to in my

h< peculiar political status of the

.! tin- war was held, rightly .. wrongly, to affect

its status as a belligerent Power also, and to suspend for certain

Another case in which the question of belligerency may arise

of troops of a non-European race, or JJJU'
ast of a race of b i \iliation to the Ix-lligerentH, in a civilised

sod war. To employ savage troops is clearly improper, for U

The guerillas in Spain were more akin to a Jevfc ea moat than to guerilla
fighter* in the proper eena, i.e., regular oombaUnU who carry on " la petite
guerre/' like the Confederate guerilla* in the fleoenion war, or the Spanish
guerillas in Cuba.

> 8ee Despagnet. La O*erre md^a/ricai**, PP- 347, 330.

See Timu //iWory, Vol. IV, p. 486.

Some writers would confine the term guerilla war to a war which is

nod by the more desperate element* of a hottile army after the defeat

sad capture of their main forces, the occupation of their territory, and the

til of their Government ; in other words, such a continued resistance as

Grant refers to in the letter quoted in the text. But thisis merely illtgitimmtt

guerilla war, and there is a legitimate kind too, (See Oppenheim,

//emolMMo/ Law (1006), Vol. II, p. 67.) The various kinds of guerillas or

partisans are well distinguished in the American In*rne*ioiu, paragraphs 81,

,85:-

1 'artisans are soldiers armed and wearing the uniform of their army,
hat belonging to a corps which acts detached from the main body for the
purpose of making inroads into the territory occupied by the enemy. If
captured, they are entitled to all the privileges of the prisoner of war.

80. Men, or squads of men, who commit hostilities, whether by fighting, or
making inroads for destruction or plunder, or by raids of any kind, without
commission, without being part and portion of the organised hostile army,
sad without sharing continuously in the war, but who do so with intermit
'ret m us to their homes and avocations, or with the MiH assumption of
the semblance of peaceful pnrsuiu, divesting themselves of the character or
appearance of soldiers such men or squads of men, are not public enemies,
and thereforr, if captured, are not entitled to the privileges of prisoners of
war. but shall be treated summarily as highway robbers or pirates.

85. \Vr rebels are persons within an occupied territory who rise in arms
against the occupying or conquering army, or against the authorities
established by the same. If captured, they may suffer death, whether they

own, but expelled. Government or not.

66 WAR RIGHTS ON LAND en

they are of their nature predisposed to fail in the fourth com litimi
of Article I of the Rlglcw> t. and officers cannot be ubiquitous.
M is an unedifying and unforgettable page in military
history which deals with the scalpingH and t<rt urines >i th<
Red Indian allies of the English, French, and Continental
armies in the American wars of tin- iMh c.-ntury. To-day,
however, the Colonial indigenous troops of the European Powers
are, for the most part, as highly disr,i|linrd and trained as anv
troops can be. Against such troops there is no law. Tli<
black man who has b< n drilled white " is under no disability
as a fighter in the eyes of International Law. There is nothing,
save perhaps policy, to forbid Great Britain employing In -r
Sikh or Gourkha regiments, or France employing her Algerian
troops, against another European Power. The French Turcos
of 1870-1 were accused of cruelty by the Germans, as they
had been by the Austrians in 1859, but the truth <f tin-
accusations is very doubtful. 1 The Special Correspondent of
the Daily News says that all those he saw in Paris in 1^7<>
were "as mild in demeanour and in visage as orthodox
curates." 2 Perhaps their "full Day-and-Martin colour" 8 was
sufficient to condemn them in advance in Prussian eyes as
capable of any atrocity. Individual cases of irregular conduct
are alleged against even highly disciplined white troops in
every war, and often with good reason : it is the general
behaviour of troops which should be considered before they are
condemned. But even where the conduct of troops of an
inferior race is unimpeachable, their employment may be a
mistake as a matter of policy. Perhaps it was so in the case of
the Turcos in 1859 and 1870 ; it was certainly so in the case of
the negroes in the Secession War. The southern States
appealed to arms on what was practically the issue of Home
Rule ; the Federal authorities, holding that the Union was
and inseparable, sent the flower of the north to recover the
seceded territory. The great drain of men from the l' d ial
States, and the change in the character of the war which
wrought by Lincoln's Emancipation Proclamation t

1 See De Martens, op. </. p. 356 ; R.D.I. 1898, p. 753.

Daily New War Correspondence, p. 101.

1 Memories and Hudie* of War and Peace, by Archibald Forbes, p. 91.

... oi \UHCATIONS oi- HI LUG1 KKNTS 67

i'-li transformed a war of repression i
together led to the general employment of pi^jg
black soltliiTH 1- n commander* 1 In t),. 1,-ht of^k

10 wisdom of thin policy, pan though it wan of a noble -

oonc. j fern* very open to question. The Unionist* War -

but little military advantage from the black troops, and
were so deeply enraged and embittered by the

ugaituit them of th.-ir former slaves that the
acquired a character of cruelty and malignancy whi-h
had lacked before. 'I'd- Kirlmi,,n.l Government declined to
regard the negroes as lawful belligerents, No mercy was shown

i i>\ tin Confederates in the field* The terrible affair of Tbeafiair

shows how the Confederate troops, humane and
mas towards foes whom they regarded as equals, could
throw aside chivalry and humanity when dealing with the
despised negroes I'll low, a station on the Mississippi,

was garrisoned by coloured and white troops. The Secessionist
General, Forrest, appeared before the fort in April, 1864, and
having sent in an unavailing summons to surrender stormed
[the place. The scene which followed surpasses, for sheer
horn- i t he history of war. The sack of Magdeburg

in 1631 by " the fiery Pappenheim " yielded a richer harvest of
laughter, but Fort Pillow can boast of an ingenuity of cruelty
ami <i. vilish vengeance which places it all by itself in the list of
stonnings, and one has to remind oneself that the events took
place less than fifty years ago and were the work of civilised
troops in a civilised land. \\ h. n the fort was carried the
garrison fled and sought refuge in the houses, whence they
were dragged and slain without mercy and without distinction.
"lack soldiers were slain " because they were niggers," th<
whites " because they were fighting with niggers."

rmpcr, op. <-./., Vol. II, p. 167. When the
an.: tersborg on 30th July, 1864, by exploding an

Oder n.< of the redoobu, negro troop* were selected to lead the
through the breach. TV failed and the blacks retreated into the

crater formed by the explosion. There they were shot down bj the Federal
okiiers themselves, to save them from the worse fate which wooJd have bt-

them had they been captured by the Secessionist troops.
Jfiapumc ( Battles and Leaders "). Vol. .14. No. 5, j.

i _>

68 WAR RIGHTS ON LAND CHAP.

The Committee of Congress on the Conduct of the War appointed
a sub-committee to go to such places as they might deem necessary,
and take testimony in relation to the Fort Pillow massacre. Tin Mi-
report presents facts in connection with this massacre of the deepest
atrocity. Men were not only shot in cold blood and drowned, hut.
were even crucified, buried alive, nailed to the floors of houses, which
were then set on fire. " No cruelty," says thiH committee, " whirl i
the most fiendish malignity could devise was omitted l.y th.--,-
murderers ! " From three to four hundred men are known to have
been killed at Fort Pillow, of whom at least three hundred \\.-n-
murdered in cold blood after the fort was in possession of tin-
rebels, and our men had thrown down their arms and ceased to <>il< r
resistance. 1

The individual instances of inhuman cruelty which this sub-
committee established are beyond belief. A white officer, .J..lm
C. Akerstrom, second Lieutenant, Company A, 13th Tennessee
Cavalry, was nailed through his hands and feet to the side of a
house, which was then set on fire. 2 Some black sergeants were
similarly nailed through the hands to logs, which were then set
on fire. 8 Evidence was given by eye-witnesses, who had seen
the dead body next day, that a black soldier was nailed through
his clothes and cartridge box to the floor and that, when found,
his face bore witness in its distortion to the agony of his death. 4
A coloured private of the 6th U.S. Heavy Artillery testified
that he saw one man buried alive and that this unfortunate
moved several times after the earth was thrown over him.
" No event of the Civil War," says Dr. Draper, " was in a moral
point of view more detrimental to the Confederacy than this
murder of the garrison at Fort Pillow. Christianity every wh n-
was shocked." 6 "It is hoped," said Forrest in his d. -patch
relating to the affair, " that these facts will demonstrate to the
northern people that negro soldiers cannot cope with south-
erners/' 6 and General Stephen Lee, Forrest's superior command < i .
tried to justify his lieutenant's action by saying " You had a
servile race armed against their masters and in a country which
had been desolated by almost unprecedented outrages." 7 It is
said that Forrest gave orders to stop the firing and ].< ih.tj

1 Draper, op. r,V V,,l III. ,,. 216. -I. p. 216.

* Ibid. p. 216. * Ibid. ,,. -JIT. Ibid. p. -2 is.

Grant, Memoirs, p. 417. : i'ra, < , , j.. 216.

m or AMI (CATIONS OF BELLIGERENTS 69

.(..I his control in the confusion of the atta
But nothing can relieve a general of recpon tr atrocities

committal by bin command. It w a reproach to the Confeder-
ate War Department that Forrest wan not tent before a court-
martial. Likr the murder of tho ho I pleas Delhi princes by

'Hodson of Hodson's Horse in th. Mutiny days, the
affair of Fort Pillow will always be a stain on tho memory of a
brave and skilful officer, of which no military achievement,

jh it were so illustrious a service as the covering of the
retreat from Nashvill. , <> ight to be able to clear him in the
eyes of the historian. It was bad war and bad humanity, through
;m<l through. But its interest, tr my purpose, Is that it shows
how the intervention in a civilised war of troops which one
belligerent considers uncivilised may demoralise the conflict

the Russo-Turkish War of 1877-8, the methods of the fc-hi
Bashi-Bajouks and the Circassians on the Turkish side and of

Cossacks on the Russian side, gave rise to mutual protests.
The former appear to have been ill-disciplined and more intent
on plunder than on legitimate fighting. 1 Indeed the value to
any cause of a body of troops like the Circassians, who, upon
one of thrir number being punished for sheep-stealing and
iimni.-r in 1877, deserted en nuuw, is so dubious as to make
t h.-ir employment inadvisable on grounds of military expediency.*
As regards the Cossacks, Professor de Martens, while admitting
"that they have an evil reputation in Western Europe, points
.-in that " they are just as much subject to the bonds of military
discipline as any other regiment in the Russian Arnn
However this may be, the peculiar nature of Cossack warfare,
whirh is that of guerilla bands rather than of regular cavalry.
would seem to give them both scope and temptation for pillage
and even cruelty, of which troops of this kind, hardly yet fully
ci M lined, would not be slow to take advantage.

1 Sherman, Memoir*, VoL II, p. 12. He adds that " at that time there is
no doubt the fading of the southern people was fearfully savage in this very
point of our making soldier* out of their late slave., and Forreat may have
bared the feeling " (p. 13).

* Ue Marten., op. rii. p. 3M ff. As to the conduct of Co .sinks and
Bashi Bajouk. in this war, see Boyd Wheaton's Imtvttatiomml Law, sec.

!>,- Mu-.-n . p, :i:,7

70 WAR RIGHTS ON LAND CHAP.

BUck The United States Government employed whole regiments of

JJJJJ? n negro troops against Spain in the war of 1 898. 1 " These bin.
8pW^ says Professor Le Fur of Caen Univ. r-it \. in the Revue de Droit
\v ,'. n International, " were American citizens, and they respected the
laws of war; consequently Spain could not make any complaint
nu this subject." 1 More open to blame was the acceptance of
th- aid of the Cuban insurgents, who sometimes "horritini their
American allies by shooting prisoners and looting a captured
town (Arroyo Blanco)." 8 The nature of the war the freeing
of Cuba from Spanish misrule rendered the recognition and
employment of Gomez and his levies by the American com-
manders a matter of necessity, which the latter must frequently
have regretted.

.\n-i... In the Anglo-Boer War, both belligerents endeavoured fr

JdSnraf : political reasons to make the struggle a " white man's war."

''] I 'n fortunately a succession of circumstances led to the gradual,

' if perhaps unconscious, modification of this initial policy. The

native Indian forces, who would have been admirably adapted

to the veld and mountain warfare of the earlier stages of the

war, were never used against the Boers. But even as early as

the battle of Colenso, Kaffir drivers were employed with

artillery and ammunition wagons, 4 and from the first constant

DM was made of the services of Kaffir spies. 6 At Mafi-kin^ ;m<l

elsewhere, natives joined in repelling Boer attacks by which

they thought themselves threatened, but which were really

directed against the English forces. 6 The British command' is

it is only just to add, did their best to discountenance the hdp

of such allies. On the other hand, the Boers, knowing from

1 The Cavalry Divisions in Cuba, under Major-General Joseph Wheeler,
comprised two coloured regiments the 9th and 10th Regular Cavalry.
(Roosevelt, The Rough Riders, p. 73.)

R.D.I. 1898, p. 753.

Titherington, op. rit. p. 150. See Fillet, op. cit. p. 98 ; and R.D.I.
September-October, 1898, pp. 754-5.

4 Colonel Long's guns were driven by native drivers, who bolted the
moment the Boers opened fire and thus contributed to the loss of the guns
subsequently. (Tim** Hittory, Vol. II, p. 442.)

Time* Hteory, Vol. II, p. 139. The writer of this volume of tli

says the British used no natives for fighting purposes, which is fl.itly
contradicted by the writer of Vol. V, pp. 249-50.

7Vm HvAory, Vol. II, pp. 140, 298, arid Vol. IV, p. 204 ; Uespagnet,
op. til. pp. 122-3.

m QUALIFICATIONS OF BELLIGERENTS 71

,-\|H-n.-n.-,- th- v.ii.i- .-iii.i MM ing* --1 Mfa

i wore employing Kaffirs as combat-

odopted method* of reprwal agaiiwt all suspected native* ;

and theno methods often amounted to nothing but oold-blooded

In consequence, the natives employed by the British

were given arm* for the purpose of self-defence, and it

was but a short step from thin stage to their employment for

aggressive military purposes,

11 A* time went on, mott columns came to be accompanied by
parties of armed native scouts, who did most valuable service.

uM be an abuse of terms to describe these soouU ss non-
combatants. Nor were night-watchmen on block-house lines (for
thin was another instance) any lean truly combatants than the
: i hi* block house. ... The only justification was
sheer military necessity and this was the answer given to the pro-
tests of the Boer leaders."*

So much a matter of course did the employment of coloured
forces become that Lord Mi-thum had a whole coloured squadron
of Cape Boys and Bastards with him when he marched agni

I A Roy in February, 1902, before the action of Twee-
bosch.'

In th< war with Russia, Japan employed as volunteer corpHChon-

Munch mds of Chunchuses, who inhabit the ^jS^^d

mou - districts of that country and live in a

Stateof iml. |>-!i.i. ii.- Chin.-*- Kinpin-. M Nmakawa, in

of the Russo-Japanese War (quoted by Professor Ariga)
endorses the Russian protest against the employment of
:r rmployiiK'nt," he says, "was a disgrace for
mese nation, seeing that the Chunchuses are barbarians,
mis, and pillagers." Professor Ariga disagrees and holds

Jftrfory, VoL V, pp. 251, 437, 450, for

J.y th- 1^>- I.H

* Tim,* History, VoL V, pp. 249-*). Mr. Brodriok, Secretary of Slate for
War, UUd in the HOQM of Common., 7th March, 1902-" It ha DMO
neoaMary when native* are employed aa watchmen between the blook-howM
and on the line of railways to prevent accident* and for other porpoeee lor
which they have been employed, to arm them for their own protection. In
my opinion. Lord Kitchener wa* perfectly justified in carrying out that
oonne." (Wyman't Army ***. Seerion I90S, Vol. I. p. 1185.)

' rm //./ry. Vol. V, p. 502. The writer emya, "Their [.e., coloared
troop*] employment for war in the Trancvaal wan a mistake." See aUo
Deafagnet, op. cil. pp. 122-3 ; Bonfib, efi.dc.eeo. 1070.

72 WAR RIGHTS ON LAND CH. ...

that the Chunchuscs were proper combatants under Ani !< I,
the Hague. " There are," he says, "ditV. nut kinds of Chum -h
and Japan did not employ such as were robbers an<l criminals.
Km t her, a belligerent is forbidden not to m i tin - -r vices

of volunteers of neutral nationality^ .siu^i as th- rhum-husrs
were." 1 With such a difference of opinj^ii betwckm two writers
of expert and local knowledge, it is very-difficult o decide which
is right. It is clear, however, from Professor Ariga's own state-
ments,* that even the better kind of Chunchuses are given to
robbing, not indeed the local population, but the Chinese
functionaries who came to collect the taxes of their district,
and the worst kind, who are admittedly all but savages, might
very probably find their way into the bands of volunteers
who assisted the Japanese. If there is any doubt as to the
l>r< -priety of employing forces of this kind in a civilised war, the
better rule is to refrain. The military advantage obtained
from their assistance is usually insignificant, and complaints of
violations of war law are bound to arise.

The coming of the " airship of war " will doubtless produce
a fresh set of questions relating to belligerent qualifications. It
is practically impossible to foresee, at present, what rules will
be found necessary to regulate fighting in the new element.
Most probably, maritime war law will be followed ratln-r than
terrestrial. Belligerent status will depend rather on tin-
commission of the fighting engine, and its colours, than on the
uniform, etc., of its crew. M. Paul Fauchille, who has given a
special study to the subject writes as follows :

In order to establish the difference between public and private
aerostats, and between neutral and belligerent, it will be advisable
for the balloon to carry at a fixed spot in its envelope the national
colours, in the form of an " air standard/' the appearance of which
shall be different for each nation and which shall be recognisable
at a great distance and notified beforehand to the Powers. 3

1 Ariga, op. cit. pp. 270-1. Ibid. p. 288.

See BonfiU, op. cit. sec 1440.

OHAPTEB iv

III.1TIE8 MEANS OP 1NJUHIN-. 1 HE ENEMY 1

ComciUwnal law of war: Hague RigUmtnt,
Articles XX II to XXIV:

ARTICLE XXII.

The right of belligerents to adopt means of injuring the
enemy IB not unlimited.

ARTICLE XXIII.

In addition to the prohibitions provided by special
Conventions, it is especially forbidden

() To employ poison or poisoned weapons ;

To kill or wound treacherously individuals belonging
to the hostile nation or army ;

To kill or wound an enemy who, having laid down
his arms, or having no longer means of defence, has
surrendered at discretion ;
('/) To declare that no quarter will be given ;

To employ arms, projectiles, or material calculated
to cause unnecessary suffering ;

i To make improper use of a flag of truce, of the
national flag, or of the military inaignio. and uniform of

1 It will be noticed that I have departed from the order of the Hague
JUgUmeni in the arrangement of my subject. Articles IV to XX of the
RtjemtHt deal with Prisoners of War . -fers to the Geneva

Convention; Article* \\ VIII deal with Means of Injuring the

Enemy, Sieges, and Bombardments ; Article* \ \ XI with Spies ;

\\\11 \\\l\ with Truces; Article XXXV with Capitulations;

\\\\ I k \l.l wHI \" ': : krtfelM Xl.ll t - I.VI With

Military Occupation. It appears to me a better plan to treat Hostilities, etc.,

fore Prisoners of War (Article* IV t., XX) : then to

take Military Occu,- ! \\.\\ I.VI , and finally the Geneva

taovrnti.u, Arti.-l.. \\I fWOoAVl '; | j |nj " Ml ife^M ol
h wan drawn up at the Hague in 1907, and which is not part
is dealt with last of alL

74 WAR RIGHTS ON LAND CHAP.

the enemy, as well as the distinctive badges of the
Geneva Convention ;

(:/) To destroy or seize the enemy's property, unless
such destruction or seizure be imperatively demanded
by the necessities of war ;

(h) To declare abolished, suspended, or inadmissible in
a court of law the rights and actions of the nationals of
the hostile party.

A belligerent is likewise forbidden to compel the nationals
of the hostile party to take part in the operations of war
directed against their own country, even if they were in the
belligerent's service before the commencement of the war.

ARTICLE XXIV.

Ruses of war and the employment of measures necessary
for obtaining information about the enemy and the country
are considered permissible.

Preamble to the Declaration of St. Petersburg, and Declara-
tion itself:

Considering that the progress of civilisation should have
the effect of alleviating as much as possible the calamities of
war;

That the only legitimate object which States should
endeavour to accomplish during war is to weaken the
military forces of the enemy ;

That for this purpose it is sufficient to disable the greatest
possible number of men ;

That this object should be exceeded by the employment ot
arms which uselessly aggravate the sufferings of disabled
men, or render their death inevitable ;

That the employment of such arms would therefore be
contrary to the laws of humanity.

The contracting parties engage mutually to renounce in
case of war among themselves the employment by their
military or naval troops of any projectile of a weight
lees than 4OO grammes (about 134 ounces), which is either
explosive or charged with fulminating or inflammable
substances.

OTHER points of war law relating to the instruments of
warfare are dealt with in the Declarations given on pages 79,
101, and 102.

Theobject The terms of the Declaration of St. Petersburg and Arti'-N-s

XXII XXIV of the Rtylcmcnl are an authoritive refutation of

old saw that "All is fair in (love and) war," and also

iv Ml ANS OF INJURING THE ENEMY 75

! the contention that everything is permissible which will
i in luce an enemy to *ue fur peace. 1 The civilised world
hat signed and sealed ita approval of two grtii plea

the first, that the sole end of war is the overcoming

be military forces of the enemy; the second, that
the means which may he adopted to ser> end, certain

ipply. These laws touch the craftsman in
war at two separate point* of contn< regulate, in the

t at once of some ancient guild and of the motst enlightened
and modern humanity, both his conduct in his craft and
tools which he may employ. In other words, they hear both
upon the methods and upon the engines of warfare V
latter pmt I shall deal first. The general principle of war law
is this that no engine of war may be used whi< h i- t if one
may use the term) tuperervgatory in ita effect. The prim -ipk
results from a compromise of humanitarian and military
interests, the latter for war is war being the more pow*
interest of the tw<> The military commander, intent on victory,
seeks to employ such instruments as will best achieve the end
of war the disabling of the greatest possible number <>f the
enemy. Death, agony, mutilation these he would a\<i<l
could : they are not en in themselves, for the modern mil.
leader arrogates no such divine call to exterminate and mutilate
as old-world leaders especially under theocracies used to
aKsunl conception that one has a M fiery gospel
writ in burnished rows of steel " to preach, is happily banished
modern war. Hence commanders are quite ready to
admit the claims of humanity to the extent of forgoing th<-
use of any engine of war whose military effect is disproportioned
to the suffering it entails. The explosive bullet. for instance,
achieves nothing beyn 1 the mutilation of the person it strikes;

military effect the turning < : \e soldiers into

casualties is no greater than that of an ordinary bullet would

Killing, of course, is not forbidden by war law; neither

custom nor convention prohibits the ritU-man from aiming at

h^ en.-ni\'s heart and bruin ; such a prohibition would not be

practical politics. But the function t the Hinall-arm being to

disable the individual, war law docs prohibit the use of any

Se ShorkUn, Jfonoirs Vol. I, pp. 487-*.

76 WAR RIGHTS ON LAND CHAP.

which causes an incurable and agonising wound, and
simply aggravates suffering without furth< mi^ the end of war.
function f th- |>i<'f<> of ordnance, on the other h.-ind, is to
radiate destruction around its point of impact, and therefore
military effectiveness demands a latitude in the employment f
such engines which it forgoes in the case of the rifle or pistol.
It is really by its fruits that the engine of war is judged. Th<
test of the lawfulness of any weapon or projectile is practically
the answer one can give to the question What is its " bag" ?
Does it disable so many of the enemy that the military end
thus gained condones the suffering it causes ?

At first sight, it strikes one that the use of certain modern
engines of warfare must be irreconcilable with the sentiments
of the international agreements quoted above. History has
seen a diabolical ingenuity displayed in the perfecting of guns
and explosives until the ripe civilisation of the 19th century
witnessed the climax of the process in the invention of that
portable inferno, the submarine mine, and that embodied
horror, the shrapnel shell. The advance in the science of des-
truction has not gone without protest. Wise men and prophets
have set their faces against the movement, but in vain. The
Chevalier Bayard thanked God on his death-bed that he had
never granted quarter to musketeers were not sword and lance
and cross-bow the weapons for knights? 1 Pope Innori-nt III
tried without avail to have the use of projectiles forbidden in
war.* Conflans would not allow his seamen to fire shells. 8

The Prohibition of certain warlike instruments cannot
but seem the veriest sentimental cynicism when one remembers
what happened at 203 Metre Hill at Port Arthur in 1904.
4 Tho mountain," says an eye-witness:

"The mountain after its capture would have been an ideal spot for
a Peace Conference. There have probably never been so many
dead crowded into so small a space since the French stormed the
great redoubt of Borodino . . . There were practically no bodies
intact ; the hillside was carpeted with odd limbs, shells, pieces of
flesh, and the shapeless trunks of what had once been human

1 Sir H. 8. Maine, International Law, p. 139; Fairer, Military Manners
and Ciutonu, p. 5.

* BoofiU, op. cU. nee. 1069 ; Fillet, op. ctt. p. 88.
3 Holland, Studie* in International Law, p. 65.

MEANS OF INJURING THE ENEMY 77

beingH, intermingled with pieces of shell*, broken rifles, twisted
bayonet*, grenadea, and masses of rock loosed from the surface by

"The corpses," my* Sir Lin Hamilton, another eye-witness,
" appear to be the ground it* I* difficult indeed to see

T of dt- . procesH ! tin- sons hss

unproved on the age in win. f t everything wss permissible save
tii. i;-- ..t iii.Mni.it I..HM. To-day, a commander has an acknow-
ledged war i . use any weapon or explosive which, how-

and ghatitly its effects, is capable of putting <<

.i ti..ii meJi a mmbsf of th an m\ u ko justiQ UM in id rial

unit I - certain that the employment

capable of destroying an army at a blow would

mate under the actual principles of the law of war. It

may, however, be surmised that an m\. ntion of this kind would

itably n*u!t m the modification of the laws of war on this

Fillet p. 87. Mr Kills Anhmead Bartlett (op. fit. pp. 185-41)

rallies a curious incident, of interest in this connection, which, however, is
not mentioned in Professor Ariga's book and which I therefore give with all
reserve. He says that in one of the August Attacks on the forU round Port
Arthur, an entire line of infantry, assaulting one of the positions, fell side by
tide in death, yet no injuries could be found on their bodies. The Japanese
Staff explained the phenomenon by stating that it was due to a live electric
wire which the Russians stretched across the front of the position attacked,
and which instantly killed those touching it. The existence of such a wire
was disbelieved at the tine, bat Mr. Ashmead-Bartlett subsequently obtained
confirmation of the fact.

>u my way home to England [He says] I travelled on the same ship with
a Russian naval lieutenant, who was Prince Umtomsky's chief staff officer
on the ftrcsvid. We often talked over the siege, and one day he inquired of
me if any Japanese bad ever been killed by the electric wire. I repeated to
him th trillion attaching to its use. He then told me in detail all the facts
connected with it. he himself having been the chief electrician in the fortress,
and having obtained permission to make the experiment. The wire was
placed among the ordinary wire entanglement*, so that it could not be dis-
covered. The current was sufficiently strong to destroy anyone V^Hifag it.
.eutenant was never certain if it was successful, but eye witnesses had
told him they had seen a whole line of Japanese soldiers go down, in one of
the early attacks, by coming in contact with the wire. Naturally iu ui
was short lived, because the wire was speedily destroyed by shell fire or cut
with the entanglements,"

In the //Mfory of tkt fttasWopSMSM Wmr t issued by the Kinkodo

78 WAR RIGHTS ON LAND CHAP.

The use of chain -hot. iv,l-h,,i >h,,t. pounded glass, etc., is
"* *" sometimes cited as an illegitimate nu-thnd .!' wjirfiuv. 1 Tin-
last-named was specifically banned by the original draft for the
Brussels Conference. But the changes that, him- taken place
in ariillrry mat. -rial, and especially th<- rifling of cannon, hau-
lered such projectiles ijuit.- <>!< .lay. ami the <pir>ti>n

of their legitimacy is largely an academic <.m. It may iml'.-<l
happen, as it did more than once in the Crimea and at Port
Arthur, 2 that improvised and unusual weapons of attack <>r
defence stones, for instance, or poles are employed by troops,
whose ammunition is exhausted or who cannot use th< ir ntl< s
Contro- or swords from their cramped situation at the moment. The
daring the U8e ^ 8ucn w*? 0118 was tne subject of an interesting corres-
CHmean pondence between General Canrobert, the French Commander,
and General Osten-Sacken, the commandant at Sebastopol, in
January, 1855. The former, who was evidently of the mind of
Lucius OTrigger that you should kill your man " <K < ntly
and like a Christian/' complained that the hooked poles which
the Russians occasionally used, though not forbidden by war
law, were " certainly not the arms of courtesy." The Russian
General replied that his men were instructed to make the
enemy prisoners, if possible, in preference to killing them, and that
it was for this reason that they used the weapons in question.
Explosive Explosive bullets were used by the Confederates at Vicksburg
bullet*. m 1863 . jt was thought that they would burst over the enemy's
trenches and, exploding, have the effect of shell fire in disabling
a good many men. Grant says :

I do not remember a single case where a man was injured by a
piece of one of these shells. When they hit and the ball exploded,

Publishing Co., of Tokio (Kegan Paul, London, 1904-5), I tin.l the following
official statement bearing on this incident, under the date August 20, 1904 :

In front of the Pan-lung-shang Fort and of the North Fort of Tun^r
kuan-shan there were wire entanglements charged with electricity, and beyond
this was an endless field of ordinary wire entanglements. The Right and
Central Columns endeavoured to destroy these obstacles " (p. 794).

No mention is made of any such wholesale destruction of an assaulting line
as is mentioned by Mr. Kllis Ashmead-Bartlett.

1 E.g. by Bluntschli, DroU International CodiJU, sec. 558. See Bonfils,
op. cit. sec. 006. Professor Westlake (International Law, Pt. II, p. 76)
would admit red-hot shot for use against ships or fortifications, not against
but there is no likelihood of a civilised army using it to-day.

8 Kinglake, Otmea, VoL VI, pp. 210, 516.

iv MEANS OF INJURING THE ENEMY 79

the wound was terrible. In thme cane*. a aolid ball would liave
UNO in barbarmu, baoMuo they produce increased

In the mine year .-nun military authorities devised an

ii\v bullet for ua6 against ammunition wagoot and hard

uoes generally, and a few yean later tin- Inll.-t was so

tied as to explode on contact with a soft substance. A

bull. would have been a deadly, it inhuman.

instrument of war in th. h.u,.U ..!' any nation, and the Russian

s, unwilling to use the bullet themselves, or to allow

to secure the advantage invention,

suggested that its use should be prohibited by international

agreement among the Powers. This was carried into effect by

the Declaration of St. Petersburg, 1 and since 1868 no civilised

army has used explosive bullet*. Expanding bullets are quite Expand

most famous type of the latter is the
it iluin-dum bullet, which was designed for use against
fanatical savages, such as Afridis and Fuzzi-Wiuories, whose
rushes the small calibre Lee-EnnVM bullet was found inadequ
to check. The question of the adtnissibility of dum-<lum
bullets was discussed at length at the first Hague Conference ;
it was denounced by the representatives of all the Powers
except those of Great Britain and the United States.* With
vo last-named Powers as sole dissentients, the following
Declaration was adopted, with special reference to the dum-
bullets:

The contracting parties agree to abstain from the use of Hague
bullets which expand or flatten easily in the human body, Dadm-
such as bullets with a hard envelope which does not entirely {JSLt^
cover the core, or is pierced with incisions. 4

This agreement was renewed at the Hague Conference of 1907,
at which Great Britian and the United States n<>titii th. -ir
adhesion to it. 5 I vilised n therefore now bound

at Britain was not a party to the Declaration of 1899

1 jrmor, p. 316.

* The United State* and Spain are not adherent* of the St.
Declaration, but neither of than State* uacd explosive bolleU in the
UM

> Hague 1 R a pp. 6S, 64, 80. * Ibid. p. 340. /Wd. p. 14.

8o WAR RIGHTS ON LAND CHAP.

Expand relating to expanding bullets but >)i* did not employ MI. h
ammunition against the Boers. At the beginning of th. \\.u-.

the South all the dum-dum ammunition was recalled from Smith Africa, 1
\\" ir ' ami though this was officially stated to be due to the bad
manufacture of such bullets as had been issued rendering tin MI
unfit for actual use, 2 it is not unlikely that the opinions ex-
pressed by the Hague delegates had as much to <!<> with the
withdrawal as the reason given. As a matter of fact l.ih
belligerents complained of the use of < \pmding bul
Sonu- individual instances may have occurred, and the fact that
a British soldier committed suicide with a dum-dum Imlli-t is
evidence that the instructions for withdrawal may have ln-.-n
evaded in some cases. 4 It is clear too that the Boers occasion-
ally made use of expanding bullets. In the Parliamentary
Papers relating to Martial Law in South Africa, there is a
record of Boers being found guilty by military courts of carry-
ing expanding cartridges and soft-nosed bullets in the Transvaal,
Orange River Colony, and Cape Colony. 6 An American war
correspondent who served with the Boer forces relates that they
occasionally cut off the points of their Mauser cartridges, thus
making them expansive. 6 And a German eye-witness who
visited the Boer laager after the Paardeberg surrender, saw a
number of Mauser cartridges with the points of the bull*
off, as well as sporting ammunition which had been cut into
mushroom shape. 7 But it is quite certain that such practices
were not countenanced by the responsible commanders and that
any use of expanding bullets on either side was quite un-
authorised 8

1 Despagnet, op. cit. pp. 111-12.

Blue Book, Report of the War Commission (Cd. 1789), 1903.

1 Despagnet, op. cit. pp. 1 11-12. Revue des Deux Monde*, 1st March, 1900,
p. 44. Hansard, Parliamentary Debate*, 4th series, Vol. I . X X V II , p. Ml .',.
Hall, International Law, p. 406.

4 Private Slight, 12th Lancers, committed suicide with a dum-dum bullet
in South Africa. Wyman's Army Debate*, Session 1902, VoL II, p. 658.

Parliamentary Papers Relatiwj to the Administration of Martial Law in
South Africa (Cd. 981), 1 '.>-', pp. 126, 174, 202.

Howard C. Hillegas, With the Boer Forces, p. 308.

T German Official Account of the War in South Africa (Colonel Water's
translation), VoL I, p. -'!_'.

The fact that Lord Roberts protested against the employment of expand-
ing bullets by the Boers is a good indication of the morally binding force of

MEANS OF INJURING THE ENEMY 8,

Both Japan and Rimsia were parties to the Hague Declam- in UM

on the subject of expanding bu! l<t.>. In the war between 8
these Poweii, the former complained of a viola the Deo- War.

laratiun. hut an explanation similar to that given for the
Anglo-Boer War could doubtless be given. 1 Japan herself
seem* to have been at fault at the beginning of the war in
allowing her officers to carry pistol ammunition of an expand-
ing nature. When the*&ct came to light, <> War Office

issued in armies in the field for the destruction

of all such alum unit ion.*

Explosive hand grenades, which were freely used in the
j Russo-Japanese War, 1 as they were in the Crimea, 4 and Seces-
sion* Wars, are not hold to come under the prohibition of

si ve bullets. Nor is there anything ill<^itinmu- in the Mines.

lose of torpedoes in land war. The Russians launched such

engines from the hills around Port Arthur and no objection

was raised by the Japanese to this mode of defence.* In the

[Secession War, the Confederates made frequent use of land

I mines or " torpedoes, " as they were then called, and though

thr.sr rMtfillr.s \\rlV lint IV-;in 1. '<! hythr Fr< l-Tll ', .|Mln:iM< I T<

as forbidden by war usage, a disposition was shown to rest:
tin ir employment within imrmw limit*. Th- t'nion Generals

t appear to have shared the old sea-dog Farragut's con-

uous iM'litViTence to such new-fangled engines of war,

huh he expressed once and for all in his famous " Damn the

\Vhen Sheridan had won the battle of Yellow

m, where the gallant Jeb Stuart fell, and was pressing on

ids Richmond, he found torpedoes planted along the road ;

<iered the prisoners whom he had with him to seek them
out and remove them a duty which could be imposed on

eraational Declaration relating to war usage, as effecting even a

>kodo Coy's op. c*. p. 805,
Ariga, op. c*. pp. 845-7.

iga. op. ni. pp. 361-2. UM Russians at the battle of Liac-Yang
optwnber, 1901) used hand-granadea, UM da of orange., which blow
men', bodies to piece*. " (Sir Ian Hamilton, op. r./. Vol. II. p. 114).
Ounead-BartleU (op. <. p. 2S5) eay theee haod-granadat " asphyxiated
their fames UIOM who ware not torn to pieces by their explosion."

A H KuieeU, OTWMO, P .

Grant, Memoir*, p. 884, Ariga. op. t p. 964.

82 WAR RIGHTS ON LAND CHM .

prisoners of war only as retaliation ir a violation of war law by
the enemy. 1 H. W. Slocum, who commanded Sherman's right
division in the" March to the Sea," relates that torpedoes were
found planted outside Savannah, in a narrow road leading from
the ferry to the South Carolina side of the Savannah river, and
that several of his men were killed or wounded by treading <>n
them. He says:

Planting torpedoes for the defence of a position is legitimate
warfare, but our soldiers regarded the act of placing them in a
highway where no contest was anticipated as something akin to
poisoning a stream of water. It is not recognised as fair and
legitimate warfare. If that section of South Carolina suffered more
severely than any other, it was due to the blundering of people \vh<>
were more zealous than wise. 2

It is difficult to see how torpedoes can be assimilated to poism.
The latter is specifically forbidden by the laws of war, both
conventonial and customary, while torpedoes are not ; and if they
may be used against an assaulting enemy, there is no fair
ground for prohibiting the use of them in the rear of a
retreating army, to delay the enemy's advance. McClellan ami
Sherman, sounder guides on questions of war law than Sheridan
and Slocum, both lay down that the planting of torpedoes in
the route of an advancing army is a legitimate method <>f war.
Both, however, condemned the practice of laying mines in an
occupied territory which had been definitely abandoned by the
enemy and in which they could, in any case, hardly be planted
without the help or connivance of the inhabitants. 8 When the
Turkish army was about to occupy Larissa in 1897, it is said
that its commander, Edhem Pasha, was warned that a bridge
leading into the city had been mined by the Greeks before
their retreat, and that, owing to this warning, the occupying
troops were able to take steps to escape destruction. M.
Politis condemns the act as " at once barbarous and treacherous,"

1 Sheridan, Memoirs, VoL I, pp. 380-1.

Century Magazine (" Battles and Leaders"), Vol. XXXIV, p. 931.

1 McClelland Own Story, pp. 328-7 ; Bowman and Irwin, Sherman av>i
Campaign, pp. 236-6; Sherman, Memoirs, Vol. II, p. 194 The eminent
jurist, Pradier-Fodere, and other writers regard the use of mines as legitimate
in all circumstances. See a paper by M. Nicolas Politis, in /?. D. I. September-
October, 1897, p. 686.

iv MKANS OF INJURING I HI ENEMY 83

oo the KI lt l*n** had boon evacuated by the Greek*

the evening before, and the Turku had the right to count upon
the security ..i the route which led into the unresisting cr
But the mining of a bridge in such circumstance* may be a
necessary step to secure the unmolested retreat of the army
h is evacuating the territory, and just as much a measure
of self-defence as the fighting of a rear-guard action. The
object of the act is in consonance with the proper end of war.
To plant mines in a place to which there is a vague probability
that the enemy's army may come, but to which non-combatante
have complete access meanwhile, is almost as barbarous as to
fire shells upon a concourse of peaceful inhabitants on the
chance that there may be a > two among

question of mines is of much less importance in land than in
naval war ; but it would be no loss of time and words if it were
ri some consideration at a future Hague Conference, with a
view to the laying down of some definite principles on the
subject, as has been done in the case of submarine mines.

Art III of the RigUinent speaks of " special conven- Special

tions " prohibiting the use of certain arms or methods of war.

Surh OCOTentlOai an- th.-

8t Petersburg Declaration ;

Hague Declaration prohibiting tho use of projectiles whose sole

object is the diffusion of asphyxiating gases ;
Hague Declaration prohibiting the use of expanding ballets ;
Hague Declaration prohibiting tho discharge of projectiles and

explosives from balloons.

shall deal with the first and third Hague Declarations
itly. The last-named is, it will be seen, neither perpetual
-really binding, but as between its signatories and for
[K?riod for which it runs, it is such a "special convent!
as is referred to here.

An interesting case bearing on Article XXIII (a) arose Tbeoseof

during the Secession War. When Peraberton capitulated to

Grant at Vicksburg 1863, Joseph Johnston, who had

been watching the siege in the hope of being able to help

bcrton, fell back towards the town of Jackson, closely

> ued by Sherman. In ntn.itm^ he caused cattle, hogs,

> R.D.I. tor.

84 WAR RIGHTS ON LAND CHAP.

and sheep to be <ln\ -n into the |> water and there

down so that we had to haul their dead and stinking carcases
out to use the water." 1 Does an act such as John-ton's
amount to poisoning? The answer would seem to be no;
provided it is made quite apparent what has been done.
Cutting off an enemy's water supply is an allowable act of wa
very usual method of bringing pressure on a besieged town is
to turn a stream supplying it. Johnston's act elicited no
complaint at the time, and in a book which is used as a text-
book in the American army to-day, it is expressly nu-nt mn< -<1
as a permissible method of delaying an enemy's pursuit. 2 A
lawful operation of war may lead indirectly to the poisoning of
the enemy's troops, but it is not the less lawful on that account.
A case in point is De Wet's brilliant exploit at Sannah's Post
of 29th March, 1900, by which he cut off the Bloemfontein
water-works and thereby forced the garrison of that town to
rely on the tainted wells. 8 The epidemic of typhoid which re-
sulted was perhaps due in part to another cause, which may be
MI* ntioned here as showing the limitations of Article XXII I, i ).
When Cronje was hemmed in by Lord Kitchener's troops
at Paardeberg in February of the same year, many of his horses
were killed by the British shells. The carcases could not be
buried, and to have left them to putrefy in the narrow circuit
of the laager would almost certainly have caused an outbreak
of enteric among the Boers themselves. They were therefore
sent floating down the Orange River, on which the British
soldiers depended for their water supply. 4 Cronje's action was
warranted by necessity and it is impossible to regard it as
amounting to a deliberate poisoning of the stream.

1 Sherman, Memoir*, Vol. I, p. 331. When the Boers were retreating north-
wards from Kimberley in 1900, they rendered the few wells they left behind
in their retreat unserviceable, and in consequence the English troops sur
great louses of cavalry horses (German Official History of the Boer War, Vol. I,
p. 159).

The Service of Security and Information. By Colonel A. L Wagner,
A.A.G., U.S. Army, p. 174. See on this point Fairer, Military Manners and
Ciulonu, p. 29. He says it is a working rule of war that " you may not
poison your enemy's drinking water, but you may infect it with dead bodies
or otherwise, because that is only equivalent to turning the stream."

1 Times History t Vol. IV, p. 14.

4 Maurice, Official Hitory, Vol. II, p. 164.

v MKANS OF INJURING THE ENEMY 85

The Franco-Prussian War furnishes a grotesque incident
interest in this connection. A corps of female
warrior*, Mty led "The Amaaona of the Seine," was formed in
Paris in October, 1870; they made their existence f* It in the
Commune, though they did not actually take the field against
t IK IVuatiana. At a public meeting it was seriously suggested
h,- women should carry on one of their fingers an india-
rubber thimble, at the end of which was to be a small tube
containing prussic acid. The enemy was assumed to be so
obliging as to come within touching distance, no doubt out of
gallantry, and was thereupon to be pricked with the poisoned
tube. The absurd scheme was fortunately soon laughed out of
existence. 1 It is safe to say that no civilised Power would
its troops to use poison to-day. During the Anglo-Boer
War, it was freely stated in the English Press that the Boers
had rifled the gold-milling plants ..t' th< Rand for cyanide to
poison the Natal wells and streams. 1 There seems to have
been as little ground for this rumour as for a somewhat similar
report of the early stages of the 1904-5 war, which represented
the Russians as having poisoned the spring at Dalny. 1 Poison
was used by the Japanese in this war, but only for the purpose
of destroying the Russian military dogs, and special instructions
were issued by the Tokio War Office to prevent its causing
harm to men or animal-. 1

At the Brussels Conference one of the delegates proposed The
the following words should be added to Article XXIII (a)

14 or substances of a nature to develop contagious diseases in the disease*,
occupied country. w

The President pointed out that invading armies had the
greatest interest in taking every possible precaution to prevent

1 Cassell's //Mfory. Y..I I. ,.p. 344-5.

Stuart. rifhtrtM o/ If or, p. 78.

k.i.. <>> //.Wory, p. 387. The Vice-Admiral commanding 3rd
Japanese Squadron reported, June 6, 19O4 : "The enemy is said to have
poisoned all the spring* which furnUh drinking water. The matter i* under
investigation." Later he reported : Regarding the alleged poisoning el the
well* by the Russians, the Chinese who furnished the news has absconded,
and it is surmised that his object was to prevent the Japanese (torn utilising
the water - (p. 390).

H-a, op. c*. pp. 95-. 'BrasBslsB.Rp.2fti.

86 WAR RIGHTS ON LAND CHAP.

their own soldiers being infected with contagious diseases. The
delegate who proposed the addition declared himself satisfied
with this interpretation of the Article and dropped his
proposal 1

Trench. The word " Treachery " 2 in Article XXIII (b) seems hardly
applicable to an enemy's act, and one of the Brussels delegates
proposed to substitute " perfidy " for it. The original word was,
however, retained, as being the equivalent of the German
Mcuchdmord ("murder by treachery "). 8 There may quite as
well be treachery under the laws of war, as under municipal
law.

China appears to be the solitary civilised nation which has
countenanced the methods of the assassin in modern war. In
her war with Japan, Sung, Imperial Commissioner, is stat.<i
to have posted notices in Northern Manchuria, offering 10,000
taels for the decapitation of three Japanese generals. 4 Other
wars furnish instances of assassination or attempted assassina-
tion, but in no case can the practice be proved to have been
authorised by the Government or its commanders in the field. 6

1 Brussels B. B. pp. 310-11.

9 The American Instructions (paragraph 148) lay down that " the law of
war does not allow proclaiming either an individual belonging to the hostile
army, or a citizen, or a subject of the hostile Government, an outlaw, who
may be slain without trial by any captor, any more than the law of peace
allows such international outlawry." Bluntschli (sec. 562) states that
ilised nations regard as barbarous the putting of a price on an enemy's
head."

Brussels B. B. p. 284.

4 Holland, Studies in International Law, p. 116.

8 I find a disconcerting instance of the resort to such methods in the Afghan
War of 1841. Sir William Macnaghten was in difficulties at Cabul at this
. and to help himself out had recourse to tortuous intrigues, which
in< luded the employment of one Mohun Lai as a hired organiser of assassina-
tion. Lieutenant John Conolly, Macnaghten's kinsman and confidential
representative with Shah Soojah, wrote to Mohun Lai, 5th November, 1 M I :
"I promise 10,000 rupees for the head of each rebel chief." On Nth
November he wrote : " There is a man called Hadji Ali who might be induced
by a bribe to try and bring in the heads of one or two of the Mufsids.
Endeavour to let him know that 10,000 rupees will be given for each head, or

: I ."..i "i :;.j,.. ." TV. . '(.:: -]; <\ & - ' ; | >: < :; - rip;iim-1 ;i IK ". ;m<l

the blood-money was claimed but refused by Mohun Lai because the heads
had not been brought in. In extant letters it is on record that Macnaghten
disapproved of assassination, but that is only precisely what one would expect
to find on record in extant letters. (Archibald Forbes, The Afghan Wars,
pp. 90-1.)

iv MEANS OF INJURING THE ENEMY 87

The assassination of Lincoln was the act of a single fanatic and

waa aa deeply regrets! in th. South as in the North. Indeed,

>ved an unrelieved diaaater to the beaten Sacasiioniata, for

-l.i.,,l the sane and benignant rale of the great President

10 repressive method* of Andrew Johnson. General 1'.
Butler's government of the city of New Orleans in 1862 was so
nithloasly severe that in South Carolina a reward of 10,000
dollars ia said to have been offered for his iSMssinition * ;

: - hmond government did not approve of the step, which
waa characteristic of the people of South Carolina the irres-
ponsible spoilt chilt the Confederacy. In the Franco-Gcr-
iM. in War, a French paper, the Combat, proposed to collect
subscription* for a presentation rifle to be given to the man
who should remove tig of Prussia by assassination.*

Another French journal published a photograph of Bismarck,

ily a very bad one, with a recommendation that he should
be assassinated.* However criminal the publication of such
matters as this may be, it can hardly be prevented by the most
vigilant bureaucracy, and no Government can be held respon-
sible for the unauthorised act of an itxliviilual fanat

Treachery must be clearly distinguished from " dashes made Difference
at a ruler or commander by an individual or a little band of j^^S^T '
iii<li\i<luala who come as open enemies," 4 The latter do**** ***
no wrong under the laws of war. An army order issued to the <NM
British Army in South Africa on 13th December, 1900, and* tuck -
quoted in the earlier Blue Book on Martial Law, pointed out that
treachery " must not be confounded with surprises, stratagems,
or ambushes, which are allowable." It is the essence of
treachery that the offender assumes a false character by which
he deceives his enemy and thereby is able to effect a hostile act
lu.-h, had he come under his true colours, he could not have
He takes advantage of his enemy's reliance on his
honour. It is treachery when a man throws up his hands in
token of surrender and then seizes his rifle again and shoots

trusting enemy. Three Boers were sentenced to death and

r*per, op. rft. VoL II, p. SI5.
* BUM*, AMMU**, VoL 1. pi SM.
Ibid. Vl. II. P mi.
4 Lawrence, /ulemolMMa/ La*, p. 437.

88 WAR RIGHTS ON LAND CHAP.

shot for perpetrating such an act as this on 26th Octoh. r I : >< >
at Fr.'l'iikstad, Transvaal ' Ain.th.-r I'.", -,- \ v ,-us sentenced to be
hangtMi for treachery ; on 25th Septrml.. r, 1!K)1, h , with two
other Boers, approached a block-house under a flag of truce and
asked that he might see an officer, and when an officer of the
South African Constabulary went out to meet them and speak
to them, shot him in full view of the block-house. 2 Th-< m
clear cases of treachery, for the victim was in each case
disarmed by his enemy's assumption of a non-hostile character,
and then, when not on his guard, shot down by the man he had
trusted. There is no room in civilised war for this " stab-in-the
back" style of fighting. A surprise attack is a very difft n m
thing. When a body of Federal cavalrymen made a sudden
descent on " Hickory Hill " farm, in which the young Con-
federate General, W. F. H. Lee (son of the great commander,
R. E. Lee), was convalescing from a wound, and carried him off
as a prisoner of war to Fortress Munroe, they were guilty of no
treachery under the laws of war. It was a fair and open raid.
But the attempt to kidnap Lord Roberts during the South
African War was clearly treacherous. It was organised by a
paroled officer of the Transvaal Artillery, who wag arrested
disguised in a British uniform ; he was sentenced to death by a
Military Court and shot in Pretoria gaol, 24th August, 1900. 3
Treachery is most often associated with the misuse of the whit.-
flag, and I shall deal with the subject later in connection with
the question of the grant of quarter and of flags of truce. 4
The war Article XXIII, as proposed at Brussels, contained the
toVving following modification of the present subheads (c) and (d) :

As a rule the hostile parties have no right to declare that they
will not give quarter ; such an extreme measure is only admissible
as a reprisal for previous acts of cruelty, or as an unavoidable step
to prevent their own destruction. Armies that do not give quarter
have no right to claim it for themselves. 5

1 Paper* Relating to Martial Law in South Africa (Cd. 781), 1902, p. 12J

* Papers Relating to Martial Law in South Africa (Continuation) (Cd. 1423),
1903, p. 80; Wyman's Army Debate*, Session 1902, Vol. II, p. 1051.

8 Papers Relating to Martial Law in South Africa (Cd. 981), p. 122. See
International Law, 09 Interpreted during the Ru^o- Japanese War. By I . K.
Smith, M.P., and N. W. Sibley (1906), p. 88.

4 See pp. 92 and 224-5.

Bruela B. B. pp. 164-5.

iv MKANS OF INJURING THE ENEMY 89

lo question of reprisal* wa* left andeoided at
(as it Htill mimum), mxl th* provision a* to tho refusal of

tor in cane* of extreme necessity wan also omitted from the
i.-ct. The right of a commander to refune quarter in
Much <-i mi instances is admitted in the America* Instructions
00) and gibrauck tm Lamlkriigt (p. 16),

\\hirh .uirhoriaos the destruction of priaonera "in os*
unjH r.itive necessity, when there in no other means of keep
them and th.-n- presence constitutes a danger to the very

'once of the captors." And this view of the General Staff
hacked by the weightier authority of Bluntnchli. 1 The

d Manual, like the French and German official manuals, is
silent >n the point One can hardly say, with M. Paul
Cnrpenti< i i). 176, French translation of the Krugtbrauch tm

Ikriegt) that in one case only can the ytion-con tract
established between the captor and the prisoner at the mon
of cnpimv. und. r which the latter's life is assured, be violated

he execution of the primmer : namely, when he plots or
actually attempts to escape. For usage and theory allow
reprisals to be inflicted upon prisoners of war. But there is no

>t that not only practice but all the weight of mod* rn
expert opinion .ir. in th.- scale against Bluntschli's view.* As
Hull remarks, " the evil of increasing the strength of the enemy
is less than that of violating the dictates of humanity," 1 and
modern practice has endorsed this view, in that it has seen no

Karate slaughter of men outside of " chaud medley." The
Boer commandants have had the honour of setting a high
example of practiev in this matter. Except in the early stages
found it impossible to retain their prisoners,
yet th. v invariably released those whom they captured and
usually at once. 4 The same was done by the British troops on

/M* ImlentatuMat Codi/f<, Article 580.
* SM Fillet, op. r,/., pp. 149-51 ; BonfiU, op, <*. MO. 1190.

,11. /nfeniafMMM/ Lair, p. 997.

De Wet truly remark* (TTkrw JW' War, p. 281, : WhiUt erery
prwooer which the Rngluh captured meant one man Ian fora*, the thoeeaiwU
of pruooera we took from the English were no loei to them at all, for in meet
CMet it WM only a few hour, before they could fight again. All that was
required waa that a rifle should be ready in the camp on a prioer' return.
ud be waa prepared for eerTioeoMeanra." See alao Tim* ff**y, V.

90 WAR RIGHTS ON LAND CHAP.

a smaller scale in the Crimea : the 17th Lancers captured many
prisoners in the pursuit after the Battle of the Alma, but
being unable to bring them in, allowed them to go. 1 Tin-
circumstances of the Indian Mutiny were quite exceptinn.il
from both a juridical and a practical view-point. The Sepoys
were traitors, and for the insignificant British forces to have
encumbered themselves with prisoners, requiring the const. -mi
surveillance of large escorts, would have been sheer quixotic
madness. Consequently, practically no quarter was given to
rebels throughout the campaign. 2 Much has been written <i
the ruthless vengeance of the white troops and of their method
of blowing the Sepoys from the mouth of cannon (a method they
learnt from their opponents), and it may be that the general
refusal of quarter was impolitic at the moment, as embittering
the insurgents and rendering them desperate when a milder
treatment might have led to an earlier surrender 3 ; but no
one, of whatever nationality, who has read the tale of the
Mutiny with its accumulated horrors, can affirm that the
refusal of quarter was incapable of being justified, whether it is
regarded as a retaliation for barbarous outrages, as a pun Mi -
ment for a treacherous mutiny, or as a sad but inevitable
necessity of savage warfare. 4 England, said the Autocrat
(surely the humanest, sanest of men) to his fellow-breakfa:-
took down the map of India and wrote Delhi Dele, and the
civilised world said Amen; and Delhi, in its misdeeds, its
punishment, and the verdict of humanity thereon, stands as a
type of the India of the Mutiny. Abnormal cases call for

1 KingUke, Crimea, Vol. Ill, pp. 286-7.

See Sir John Kaye, History of the Sepoy War, Vol. Ill, p. 555 ; Kaye and
Malleson, Hilary of the Indian Mutiny, Vol. IV, p.

See Sir Evelyn Wood, From Midshipman to Field- Martha!, Y..1 I, ,,. 161 ;
Kaye, Sepoy War, Vol. Ill, p. 596.

4 For the impossibility of giving quarter in savage warfare, sec Winston
Churchill, The River War, Vol. II, pp. 195-7, who relates that very many
Dervishes had to be killed after the battle of Omdnrman because they
endangered those coming to bring help to them ; others were put out of their
misery, being terribly wounded, and others, finally, were despatched umlrr
the erroneous view that *' the fewer the prisoners, the greater would he the
satisfaction of the commanders," and that the refusal of quarter wouM
tribute to the fuller " avenging of Gordon." Colonel F. Rhodes, who edited
Mr. Churchill's book, but who was not present after Omdurman, combats the
statement as to these last-named Dervishes.

iv Ml ANS 01 INJURING THE ENEMY 91

abnormal measures. The protection of the laws of war is for
men who keep these laws, not for men who break every law,
human and divine.

h official manual of Lou* and OuiUm* of War, The
Professor Holland remarks that

i ay be a question up to what moment acts of violence may ^J
he continued without disentitling the doer to be ultimately admitted ,
he benefit or under this clause (i.

One might raise the objection to this statement that it seems
to imply the existence of a war right of refusing quarter in the
case of a very brave and obstinate resistance ; but it un-
doubtedly contains a very real truth, abundantly proved in
modern wars, namely, that it is often impracticable to grant
quarter to troops who resist to the last moment No war right
f killing is recognised in such circumstances; it is simply the
necessity of war which justifies the refusal of quarter. It
must often happen that in the storming of a trench, when men's
blood is aboil and all is turmoil and confusion, many are cut
down or bayoneted who wish to surrender but who cannot be
separated from those who continue to resist When a whole

ichful of men show unmistakable signs of surrender, then
well-disciplined troops will always grant them quarter, even at
the eleventh hour. In the heavy Bghting t'.-r the Tugela
II -ht> in February, 1900, the men of the South Lancashire
Krtfim.-Mt tat -in \.iMij.l.- >f .h-i-ij.Im. <1 r.-n-.-mit in >u--h

> i instances which deserves the highest praise. They had
lost their Colonel (McCarthy O'Leary), their nerves were highly
strung by two days' fighting, and the Boers surrendered only
at the last moment

Under these circumstances onlookers were greatly impressed by
the discipline shown in the fact that when the surrender took
place the officers were able at once to stay the bayonets. The
arms were sloped and the ranks reformed. Forty prisoners wore
taken. 1

1 Holland, we^CfetoSMe/lfar, p.*

Maurice, QficM JK4ory. Voi. D, p. 517. Sir O. Whits, in his dsspateh
relating to the WlsmislssgU seUon, states that in the final etage of the Bank
attack, the Been remained lying down and firing at our men UU they came
within twenty yards, sad then quietly asked quarter, which was invariably
granted. Tim<* tfwtory. Vol. il. ,.

92 WAR RIGHTS ON LAND CHAP.

But very often the storming of a trench is accompanied,
necessarily, by very different scenes. Where some of tin
defenders of a line of rifle-pits or earthworks continue to resist
(and usually a few will resist), their comrades must suti'.-r I'm-
their bravery or obstinacy. A party in a trench must all
render, genuinely and unmistakably, for a regiment, squadron,
company or squad of men is not like a ship, which, when it
"hath its bellyful of fighting," hauls down its colours and is
clearly out of the fight. There is no such homogeneity in a
The white unit in land war. 1 "A white flag," says Professor Holland in

Many Ma M

token of the British manual, " can protect only the force by which it is

imrren- hoisted," and then only if every individual member of that
force ceases to resist. At Spion-Kop, some of the British troops
in an advanced trench on the mountain held up handker-
chiefs in token of surrender, and the Boers came forward to
take them prisoners ; they were fired upon by the other British
soldiers, and some of them and also some of the prisoners were
shot. Presidents Kruger and Steyn protested against this
" abuse of the white flag," but the protest cannot be upheld. 2
For the particular men who put up the signal of surrender to
have fired on their captors would have been treachery, 1m t

1 See Westlake, International Law, Pi. II (War), p. 75. " The admitted
case in which it (quarter) is not practicable is that which occurs during the
continuance of fighting, when the achievement of victory would be hindered
and even endangered by stopping to give quarter instead of cutting down the
enemy and rushing on, not to mention that during the fighting it is often
impracticable so to secure prisoners as to prevent their return to the combat.
Hence it is especially difficult to avoid ruthless slaughter in the storm of a
place or of a position."

* Times History, VoL III, p. 268. In a very sensible note the writer says
that much nonsense has been talked about " white flag incidents," and much
unnecessary outcry raised against the Boers on account of such incidents.
" There can be only one valid rule, and that is for both sides to disregard all
signals of surrender in a battle, except an authorised white flag from a senior
officer." See also Despagnet, op. cit. pp. 117-18. As an instance of troops
firing on their own comrades to prevent them surrendering, an incident of the
battle of Spoteylvania (11 May, 1864) may be cited. Some of the hard-pressed
Confederates who held the " Bloody Angle" held up signals of surrender, and
when these were recognised by the Federals, sprang upon the breastworks
with the intention of giving themselves up. Their comrades in the rear
" poured a volley into them, killing and wounding all but a few, who dropped
with the real and crawled in under our pieces [Federal], while we instantly
began firing." Century Magazine ("Battles and Leaders "), VoL XXXIV,
p. 306.

iv MEANS OF INJURING THE ENEMY 93

i comrades were n<i U.uml by their nation; the surrender
was not authorised and the main bud \ -h troops on

nil were perfectly entitled to disregard it and to fire both
on th -ir own men who surrendered and on the enemy disarming
1 1 i the aafeMt nil.- tor a commander to pay no need to
a white Hag which in hoisted, in the midst of an action, by a
t.-\\ men ^h.. t'-nn j..u: -( .1 nor OQMfcimblfl i- N "fn--h itf]
resists. A some* incident occurred at Dri< :

Orange Free State, on 10th March, 1900, where tome of a body
of Boers raised a white flag which the rest disregarded. Lord
Roberto made the usual complaint, but the action of the Boers
appears to have been as justifiable in this case as was thu
th. r,nti>h in the former one. 1 Most complaints on the sub-
ject of white flags will be I. mini, wm-n investigated, to be <lu<-
to a misconception of the war righto of the subject

The practical impossibility of reconciling military effective-
ness and humanitarian requirements in the capture of a posit
led so chivalrous a commander as Skobelev to discourage th<
taking of prisoners in such circumstances. Count V>:
who fought on th,. Russian side in 1877-8, says : ?!

There were dreadful sight* to be aeen on Skobelev'a battlefields,
iiis men, well knowing that their general did not like
primmer* to be made daring an action, plied the bayonet with
good-will.*

ber wh< kiit-w " the White General " intimately points out

ins great deeds were done with very small numbers and

it was sheer necessity which caused the wholesale bayonet-

t rapt 1 1 red trench fu Is of men. 8 " There are circumstances,"

Skobelev himself, " under which it is impossible to make

prisoners when your force is small and prisoners might prove

dangeroti is a sad necessity which forces us to shoot

th< in.* Tin-re is evidence that the same difficulty about grant- Difficulty

was experienced in the last siege of Port Arthur. ^^[J
lil lf eye-witness relates that when the forte around the

//wtory, Vol. Ill, pp.
Count VonPfoil,

Uwtchenko (RngUdi translation by B. A. R Hodftite, 1884), p. 16ft.

/ .OM

94 WAR RIGHTS ON LAND CHAP.

city were stormed, quarter was IK ith. r ask d nor given. At tin-
capture of the Nort h Ki ikwausan Fort on 18th December, 1904,
" a single prisoner was taken the usual one, who was always
preserved after each attack to give information as to the con-
dition of Port Arthur. '
UraHy Another case in which the giving of quarter is often im-
possible is that of the pursuit of a beaten enemy. Commanders
may sometimes refrain from punishing a flying and disorganised
to give foe. Grant "had not the heart" to turn his artillery on the
quarter. Confederates flying from Petersburg. 2 General Nicholas Smit
stopped his men firing on the British troops evacuating Majuba
in 1881 it was "not buck shooting," he said. 8 But the stern
rule of war is that a flying foe may be pounded with cannon
and " shells have not eyes," as Bismarck once remarked or cut
up pitilessly by charging cavalry, who, if they are to do tln-ir
work properly, must often slay individual fugitives who wish
to surrender. The Boers complained of the pitilessness of the
charge of the 5th Dragoon Guards and 5th Lancers after tin-
battle of Talana, but what happened on this occasion was no
more than happens in every cavalry pursuit. 4 There cannot
be much discrimination in leaping swords. One need not
approve the deliberate butchery of every individual fugitive
which marked the pursuit of the Black Brunswickers after
Waterloo, in recognising that the rdle of cavalry in completing
a victory must usually preclude the possibility of giving
quarter. 6

1 E. Ashmead-Bartlett, Port Arthur, p. 356. Professor Ariga makes no
mention of this general refusal of quarter to the garrisons of the forts, but
his silence in such a connection does not disprove the fact. In The Campaign
with Knropatkin, Douglas Story says (p. 251), " The white flag has not been
seen on the plains of Manchuria. Quarter, in the ordinary sense, has neither
been asked nor given."

* Grant, Memoir*, p. 609.

* Jonbert appears to have similarly issued orders against firing on the
IJritish troops in their withdrawal from Spion-Kop in the last Anglo-Boer
War. "This anti-military humanity of the Boer generals prevented Spion-
Kop being another Auaterlitz," says Professor Despagnet, op. cit., p. 104.

4 Time* ffutory, VoL II, p. 191.

* It is open to men who wish to surrender to separate themselves from the
mass of fugitives and hoist a white flag, which would certainly be recognised
by a humane opponent. Then, the soldier's war right to quarter can be admitted
without causing the victor to lose the fruits of his success namely, the
complete overthrow of hip. escaping enemy.

MEANS OF INJURING THE ENEMY 9$

W. Urn-ness to surrender i usually indioatod by the hoisting Varies*
of a white flag, or some improvised substitute for it, 1 but there *
is no settled procedure in tlm matter. Some troops throw jj""
down their arms ; others hold up their hands (such was the
Boer practice). The Prussian appeal for mercy in 1870 was to
raise the butt-end of the needle-gii i he French considered

insufficient and made them (all <>n th. ir knees.' In the war of

1!MU th,- KM^I.-UI-. -..iM.-tim.- A. ii' '.. 'h- l.-iu"h .-t :t.M< in-
thr rii.-iny t,. wh.mi ih.-y wi-li.-l !.. .surr.-nl r ' 3 Tli.-n- Hi *

many diverse ways of indicating surrender that it seems desir-
able for one universal procedure to be settled by international

.-i-^r. -.-in. nt .'

Attention may here be conveniently drawn to the absence of No war
any rule of war law, conventional or customary, forbidding a
commander to sacrifice his men's lives for a legitimate
military end, or, still less, an individual sacrificing himseli
the sake of his cause. Internationa) LAW has no concern with
such a matter as this, which is one affecting on! *ops

and their commander, or the individual and his conscience. It
is worth mentioning here only because of the prevalent idea
that the Russian gunners broke the laws of war when they
fired on the mingled British and Russian cavalry at Balaclava.
In .1 famous passage Sir William Russell has told the story of
what happened when the British Light Cavalry were coming
"back from the valley of death."

With courage too great almost for credence, they were breaking
their way through the columns which enveloped them, when there
took place an act of atrocity without parallel in the modern war-
fare of civilised nations. The Russian gunners, when the storm of
cavalry passed, returned to their guns. They saw their own
cavalry mingled with the troopers who had just ridden over them,
and, to the eternal disgrace of the Russian name, the miscreant*
poured a murderous volley of grape and canister on the mass of

When General J. & Gordon had "fought his oorps to a frank," as he
ay himaelf. in the attempt to elude Grant's pareuiu from Petersburg, and
had no alternative but to surrender, he could not find anything to make a
white flag of UMTS was not a single while shirt or handkerchief to his earns!
BrtmtuaUy'U rag of some sort was found." (Rtmmimcm. p. US.)

* G. T. Robinson, Tk* Btttmjwl e/lfete, pp. 948, 914.

Ariga, op. cit, p. 10* Ibid. p. 108.

96 WAR RIGHTS ON LAND CM

Htruggling men and horses, mingling friend junl !' in <mr o>iiim..n
ruin. 1

The same thing occurred in the unsuccessful attack <>f th
H-h under General de Monet on the Malakoff, on 24th
February, 1855, when the Russians again fired on the mingled
combatants. 2 Whatever objections there are to the action of
the Russians in these two cases, they are not objections based
on war law. Often in war a commander has to sacrifice a body
of his troops to save the remainder or to secure a greater
advantage ; as, for example, in a rear-guard action or in a feint
attack which is meant to cloak the real assault. There is
little difference in principle or practice between sending men
to certain death under the enemy's guns, sacrificing them
deliberately as pawns in the game of war, so that their
comrades may, as it were, step over their bodies to victory, and
by ^"^ w ^ afc tne R 1188 " 111 gunners did in the Crimea. There
their own have been many occasions in war in which a commander lias
found it necessary to shell a position which has been captun d
by the enemy, and on which his own wounded still lie. When
Colonel Benson's rear-guard was overwhelmed by Botha at
Bakenlaagte on 30th October, 1901, the British wounded were
left lying where they had fallen on Gun Hill ; the British guns
in the camp below were turned on the hill and the wounded
were subjected to a rain of shrapnel. 8 At 203 Metre Hill, long
the citadel of a " king-of-the-castle-game," played in grim earnest,
between Nogi's men and Stoessel's, " the dead and wounded
were simply pounded to pieces by the concentrated fire of both
the Russian and Japanese guns." 4 Again, the artillery fire
which smooths the way for an infantry attack is often kept up,

1 Sir W. H. Russell, Crimea, p. 232 (October 25, 1864). See Kinglake
Crimea, Vol. V, p. 303 ; Nolan, War against Russia, Vol. I, p. 548. The
latter writer states " not a Russian who subsequently fell into our hands, of
any rank, ever blamed this assassin mode of warfare, but seemed highly to
approve of the deed from admiration of the motive the destruction of the
greatest possible number of their enemies even by the deliberate murder of
their own troops." Take away the question -begging epithets and predicates
from this passage, and yon have an entire justification of what the Russians
did.

Nolan, op. cit. VoL II, p. 137. ' Time* History, Vol. V, p. 374.

4 Ashmead-Bartlett, Port Arthur, p. 330.

iv MKANS OF INJURING 1111 1 \J MY 97

deigned 1}, until it <'ndangers the attacking troop*. At ih<*
attack on Railway Hill. 'I i*.

Some of th- it were actually wounded by the gun*, but

. the BritUh Holdier* hail begun to rvalue that eOeieot
:irr ill.-ry mipport to the Uuit moment WM well worth the ehaaee of
Much an accid.

General Maurice states that troops nowaday* are not satisfied
in an advance unless shells are atM-i. I in fnur

ili.-in.- Tli.- danLj.-r to themselves is discounted \,\ the moral
encouragement afforded by the close artillery sii|i|rt. The
most graii'iiii'.tli- i!\ f general- would hardly hesitate to rink
spraying his own infantry skirmishers with shrapnel if, 1\
taking the risk, he could smother the enemy's resistance at tin
decisive mom IM assault At the battle of Shaho (l.'tih

October, 1904), the Japanese and Russian lines were only about
yards apart before the final assault on Tall Hill, y< t th*
artillery on both sides pounded the opposing lines with shrapn-l.
"Many a Imllrt," says Sir Ian Hamilton, "must be timlinx the

: l.iil.-t whfii the two targets are only fifty yards apart" *
-at Icatl. r IUM^V an. I does, sacrifice his men \shtn
occasion arises, and the Russian action to which Russell n
was but an extreme instance of a comm n incident of modern
war. Individual self-sacrifice is equally unrestricted by any
international war right In the Russo-Japanese War it is said i
that a Japanese officer, seeing his men driven back during one
of the assaults on a trench, bound himself round and round with
hand-grenades, which were ignited by one of his men ; then
hurled himself, a living bomb, into the trench, where the
grenades did terrible execution, of course blowing him to pieces,
m* identally. 4 An even sublimer example t h* nu- self-sacrifice
is that of the Confederates who manned the submersible

do-boate in Charleston Harbour in the Secession War.
One of these submarine*, carrying no reserve of air and
consequently proving simply a cottin t*>r her successive crews,
sent down, and raised again five times, in a vain effort to

> Tim* tfMtory, VoL V, p. 540.

* Maurice, Oficial Hi*< 1. p. SL

Sir Ian Hamilton. Strop Book, V..I I!

Kit 1 1. t:. /', . I tf . . p ' ;T

98 WAR RIGHTS ON LAND CHA.

tin- I'VdiTll iroiU'lad //,//-../ < Ml (In- M\th no-

she was manned by two army nilio-rs and live vnlun:
These brave men, knowing that they were going to certain
d. ath, successfully j>< ifninird their task and paid for their
success with their lives." "Upon such sacrifices, the
themselves throw incense." Of aelf-immolation, whether of a
body of troops or of an individual, and \vlu-tlu-r >f men B
under orders, or <>l men who have volnnt. ivd f,.r the service,
there are plenty of instances in modern war; ami in n<>
has the legality of such a method f damaging the enemy been
calK-d in question.

Former Among the forbidden acts of war the Brussels project, as

extermin*. originally drafted, specifically mentioned

ation of

iMi-i ion "The threat of extermination towards a garrison which obstina

obftinat* defends a fortress." 8

The provision was omitted from the final project, in view of the
general war rights secured to men who surrender. Formerly a
garrison which refused to surrender when the counterscarp of
the fortress was blown in was held to forfeit its war right to
quarter. 5 The latest instance of the actual massacre of a
garrison in such circumstances is that of the slaughter of the
l-mail garrison by the Russians in 1790. 4 The massacre of
Fort Pillow was an act of retaliation for the employment of
negro-soldiers in the defence of the fort (vide supra pp. 67-69).
The storming of Port Arthur in the Chino-Japanese War is also
a case of retaliation. The Japanese soldiers found the mutilated
cenes at remains of their tortured friends exposed on the gateway of the
Vrth town, and revenged themselves by a five days' massacre of the
in 1894. Chinese army and population. After the first day's simm,
" Thursday, Friday, Saturday and Sunday were spent by the
soldiery in murder and pillage from dawn to dark, in mutilation,
in every conceivable kind of nameless atrocity, until the town
became a ghastly inferno, to be remembered with a fearsome

1 Birkbeck Wood and Kdmunds, History of the War in the United State*,
1861-5, p. 493.

Brussels, B.B., p. 164.

2 See Hall, International Law, p. 398 ; Westlake, International Law,
Part II, p. 75 4 Hall, lor. d(.

I\M KING 'I UK KNEMY 99

until ..n. '- l\n It was M the solitary but

<1 plorable lupm> into barbarity" : the Japanese can be

acoosed in war.*

Though there in no recent ease of the extermination of a
garrison because of its over-obstinate resistance, (bare are not j
want once* of th. tin. i 1 ,,in;i(i..n i.. .i,/ -i.-i

best instances were in the memory of the!
framers of the Brussels provision on the subject When Forest j
appeared Paducah, Tennessee, in March, 1864, he

iinoned the garrison in these words :

yon surrender, you will be treated ss prisoners of war ; but
if I have to storm your works, you may expect no quarter.

Ee failed to capture the place, however, and the earnestness of

his grim words was not put to the proof. 3 In October of the

same year, the Texan general, Hood, appeared before

Bosses, and the following correspondence took place between

i ml ;li.- commandant, Colonel Weaver, who held the place

I Vderak

II .<>. \nny of Tennessee, in the Field,

October 12, 1864.
To

The O.C., the U.S. Forces at Resaca, Oa.

I 'lemand the immediate and unconditional surrender of the
post and garrison under your command, and, should thin be acceded
to, all white officers and soldier* will be paroled in a few days. I f
the place is carried by assault. n<> prisoners will be taken.

Most respectfully. <

J. B. HOOD, General

1 Report of Special Correspondent of TVme*, quoted by F. B. Smith and N.
W. Sihley, op. eif. pp. 72-8. See Holland, S(wiit* in Inttmatumal La*- t
,. II-.

Hall, SafeniafMma/ Law, pp. 400 1. Reader* of Napier will
the dreadful eoanea which followed the torniing. of Badajoa, Cioda.

BsSSStlsa, in thr PcnimiuUr War. Bat the
whieh marked the capture of then town, were not deliberately planned by
i, whose culpability lay in (ailing to take

their troops well in hand and under proper discipline in the
and oonfusion of the capture , rather than in coneotoualy acting on
rule which declared the lives of the garrison forfeit when
See Napier. Book \ \ i pp.

1 ; Maxwell's WtUimgto pp. 440, 466-7 ; VoL HI, p. 7.

Draper, o/. rA. VoL III, pp. Ji

H 2

ioo WAR RIGHTS ON LAND CHAP,

'.v:

BLQ., '.-'ml Brigade, 3rd Divn., ir.il.
Resaca, Ga.

12 October, 1HG4.
To

Gen. J. B. HOOD,

Your communication of this date just received. In reply, I have
to state that I am somewhat surprised at the concluding paragraph,
to the effect that, if the place is carried by assault, no prisoners
will be taken. In my opinion, I can hold this pn t It you want
it. rome and take it

I am, General, etc.,

CLARK R. WEAVER, C.O.

Again in this case it cannot be told whether the threat of
extermination was an empty one or not, for Hood did not
attempt an assault at all. 1 Sherman himself was not above
using Hood's letter quoted above to awe the Savannah garrison
into surrendering, though, in this case, one may conclude, from
a general study of Sherman's career, that he would never have
executed the threat, had Hardee not evacuated the town but
attempted an unsuccessful defence. With his summons to
surrender Sherman sent a copy of Hood's letter to Weaver,
" to be used for what it was worth," and at the same time
warned Hardee that in the event of the garrison electing to
stand a siege instead of capitulating, he would make little
effort to restrain his army, " already burning to avenge the
national wrong which they attach to Savannah." Hardee's
dignified reply is noteworthy for its bearing, not on the
question of quarter only, but on the general question of the
admissibility of precedents drawn from the Civil War as
evidence on points of war law. He said :

With respect to the threats conveyed in the closing paragraphs
of your letter (of what may be expected in case your demand is not
complied with), I have to say that I have hitherto conducted the
military operations instructed to my discretion in strict accordance
with the rules of civilised warfare, and I should deeply regret the
adoption of any course by you which may force me to deviate from
them in future. 8

1 Sherman, Memoirs, Vol. II, p. 155.

* Sherman, Vol. II, pp. 210-12; Bowman .iwl Irwin, Skcrmnn and hi*
Campaign, p. 295.

iv MEANS OF INJURING THE ENEMY 101

In th. Franco-German War, thcro w one instance of a garrison

hreatened with extermination, but not for the purpone Jl

of awing surrender, aa in the oMea mentioned above ;

it waa rather a threat of retaliation for a suspected act of

treachery. At the e I -ion on 9th September,

a terrible exploaion took place aa the French Mobile

Quarda were leaving the citadel and the German* entering

and many on both sides were killed. At first the act waa

,'ht to have boon ordered by the Commandant, General

d'Hame, and he waa placed under arrest by the Prussians.

Subsequent invent i ^it \> >n showed, however, that he waa innocent

(he himself died of injuries received at the explosion) and that

iiithor was on inspector of artillery who perished. \Vh-n

capitulated a week later, the responsibility for the Laon

sion had not been fixed, and the Germans, fearing a

repet \ t he supposed treacherous act, inserted a clause in

the convention <>t >urrender to the effect that, if a similar

" lamentable accident ">hmild ocu-ur -n th* ntryof the German

troops, " t h- . i if in* garrison shall be at the mercy of the Grand

I Mike of Mecklenburg" (the commander of the besiegers). 1

However, nothing of the kind occurred.

By an International Declarati mally made at the

Hague in 1899 and renewed in 1907,- all the civilised Powers

u-n ,!

To abstain from the use of projectiles the sole object of
which is the diffusion of asphyxiating or deleterious gases. 1

I can find no instance of the actual use in war of such a gas,
but proposals have been made on several occasions to employ
something of th<> kind. During the Crimean War, the aged
Earl of Dundonald, the " skeely skipper/' of two generations
before, informed the House of Lords that he knew of a mortal
gas which was capable of exterminating the population of an
entire region, ami h.- proposed that it should be tried against
Sebastopol.' The proposal does not appear to have been taken
Iv. In ih- American Civil War, an inventive genius

Hooter, /Yanco.PnuwtN War. \ < II pp. 43 4, 73; (Well', tfirfory,

i. i. pp. iw-a.

* Gnt Hnu.n *n,l the UoiUd SUU adharad oJ y in 1907.

1 Hague, 1 II. B p. 54A. * IV MartMM, op. r,r , 71

102 WAR RIGHTS ON LAND CHAP.

suggested that Petersburg should bo captured by firing inn.
it shells containing a very ]>. \\.-rtul >nutV. \\liich would set the
defend* r- sniM-zing violently and leave them an easy prey to the
Union army. 1 Equally impracticable was the proposal of a
;ich chemist in 1870 to use a preparation called nilinin.ii<
of picrate of potash against the German invaders; h
guaranteed that it would sweep the enemy's armies off the
face of the earth, but, as a second string, he professed to know
of another preparation which would asphyxiate, any li\iu^
creature upon whom it was projected. Nothing came of th ><
suggestions. 2 The legitimacy of tin- British lyddite ha> 1 < n
called in question by jurists, on the ground that its fumes may
OMlse d.-atli l.y asphyxiation, but M that is n.t its Wr md, it, is
not forbidden by the usages of war. 8 Indeed, as M. Arthur
Desjardins has pointed out, 4 there is little appreciable difference
between English lyddite, French melinite, and German n.l.unt- .
During the siege of Ladysmith, General Joubert pn>t<<td to
Sir George White against the use of lyddite, but Professor
Despagnet, who is not chargeable with partiality for English
views, remarks that the protest cannot be justified in the present
state of the laws of war. 5

The throwing of projectiles from balloons is forbidden by the
following Declaration, made at the Hague Conference of
1 899 for a period of five years (Great Britain and the United
States of America being dissentients), and renewed in 1!H7
until "the close of the Third Peace Conference" the next
Conference.

lia- The Contracting Powers agree to prohibit, for a period
charge of extending to the close of the Third Peace Conference, the
tUmfrom discharge of projectiles and explosives from balloons or by
balloons, other new methods of a similar nature.

This Declaration has been signed by the United States,
Austria, Great Britain, Norway and Switzerland : it has not been
accepted by Germany, Spain, France, Italy, Japan, Sweden. In
this list I take account only of the more important nations. It

1 Crncral Horace Porter, Campaiyning with Orant, p. 372.

* Cftwell's History, VoL I, p

* Bonfilfl, op. cit. sec. 1069.

Revue de* Deux Mmd**, 1st March, 1900, p. I

* Despagnet, <-, I \'->.

iv MKANS OF INJURING THI I \EMY 103

ha* refore, a universally binding force and cannot bo

have signed it It was prawned at the last Hague Conference
that the shelling or dynai t undefended towns or villages

halloons should U specially prohibited 1
considered, however, that tt would be

covered by adding the words " by any means whatever"
toArt.d, \\\

Although war law sanctions the killing of all enemy com-
batants, save such as have surrendered, or are wounded and 3
cease to resist, or are specially protected by a flag of truce or J
by a passport or safe conduct a usage is in the making by which pfafcti
armies n train from killing each others' vedettes and sentries,
when no furth-T -nd the killing of the man or men

immediately concerned, is gained by the act In the Crimean
_;lish and Russian vedettes did not disturb one
anot 1 in the Secessioi lie similarity of race and

language led to something more than mutual forbearance on
part of the belligerents' pickets. In Sherman's wonderful
march from Chattanooga to Atlanta th* march which earned
him his nickname of Old Pothook " from the way in which h
manoeuvred Joseph .Johnston out of successive positions the
pickets ,,t th.- two;iriii!-s wi T mi th,- hi, n Hi, -: i. mis \sh, M . \ . r
th. -y A, i. !,.,: :\in^ to kill one another in pitched battles. 1
was the N. hurg ; the men in the outer trenches

would call out to one another that they " wanted to get out into
fresh air. and the call was always heeded and firing stopped
a time. Whenever an order came to open fire, or th had

would call, " Hell,) there. Johnny." or" Hello there,
Yank," as the cast* might be " get into your holes now, we are
going to shoot ! " A I- >n- t he Kapidan and the Rappahannock,
too, the sentries fraternised and swapped newspapers and the
tobacco of the south and the coffee of the north.* Lee forbade
the traffic* and me, which indeed no wise commander could

There are obvious objections to allowing soldiers
to fraternise with the m.-mv Th.- French c,de ,,f military
justice lays do* n that "a commander ought to limit his com-

1 KmgklM, CVwM. Vol. VI. p. 83.

ordoa. RtmimK*e*i, p. lug. /6*d. |. 1 1

io 4 WAR RIGHTS ON LAND CHAP.

inn nications with tin- -nemy to thr niiniinuni and tolerate II<>M-
on the part of his men." * But the sparing of t In h< ->t ile pickets
is a wise and humane rule. Sir George White discountenanced
sniping at Ladysmith. The Time* hist.. Han observes that
sniping may have been justified in this last case as tending to
keep up the garrison's spirits; 2 but as two sides can take a
hand at this game, and as a sentry cannot expect to play the
marksman without being in turn the target as well, it is
questionable if the killing of a few of the enemy's sentries would
be regarded by a wise general as worth the constant strain and
nrrve tension which this kind of pot-shooting would nn an fm
his own mm. At Plevna, Osman Pasha disapproved of such
methods as cowardly and brutal, though the Circassians resorted
to them at times. 8

The Franco-German War saw a retrogression in this matter
in the war of sentry-stalking. "Contrary to modern custom," says Mr.
of 1870 l. Sutherland Edwards, "the outpost duty at Strasburg was a
game of hide-and-seek, in which the forfeit of discovery was a
bullet. The usual rule was to shoot at sight." 4 " During the
siege of Paris," says Mr. Archibald Forbes, " there was a
miserably great amount of simple cold-blooded murder per-
petrated on the foreposts. No other term than murder
resses the killing of a lone sentry by a pot-shot at lm#
range. It was like shooting a partridge sitting." 5 The French
chassepol, with its longer range, gave the French a great
advantage over their opponents at this game of sentry- winging.
Tin -re is no binding war law on the subject and the jurist
silent as to the right or wrong of the matter, but it is certain
that humane commanders will, save in very exceptional cinu in-
stances, follow the rule laid d<>\vn in the Ann //'///// //,
which forbids, ordinarily, the killing of " outposts, sentinels, or
pickets " (Article 69).

Uae of the I have already dealt with some aspects of the war rights
uniform re ^ at * n g to ^ a g H ^ truce * U1(1 1 sn;l " handlr the question
orfUg. later in Chapter VII. A^ regards the use of an enemy's

1 i;..|, lil.s, r,ji. oV.

i ,1. III. ,..

Defence of /'/.

' Sutherland Kd wards, German* in Jtanee, [>. 195.
Forbes, Mtmarie* and Studie* of War and Peace, p. 103.

iv MKANS OK INJURING Mil ENEMY 105

unit ^nia, and national flag, the jurist* mention an !!

Mrh u HO up to the commencement
1 1 ill ^tates that it is " perfectly legitimate to
use the distinct i vr ..,.1.1. -m of an enemy in order to escape from
him ..r r . <h i .n," but that soldiers wearing

the enemy's uniform must \> live mark before

attack.* Th- .junMit> iffimlt |o

itnguise has done what it was intended to do, there

.ILscanlin- it II to wear the

eneim umt..rm \\\ .1 pitched batth-, it m>: Dually

improper to deceive him by wearing it up t<

clash of arms. Nor can I un<l-rMun<l the distinction which

Professor 1'ilN t draws between the use of the enemy's flag and

initnnii and insignia. The latter he allows, th.

former he condemns, the flag 1 raditional sign which

*enta the nation," whil< th< uniform has not the same

ini|Nrtance nor the same significance." 3 It is quite incorrect

to say t) n has not a very great importance and

significance to-day one has but to turn to the Brussels

>M<>n .in hrlli^rn-nt qualification* to see that this is so.

' /i Instruction* show quite clearly that war usage, as

uii'iiTMtoud by the author. < ..ml, mils the use of the enemy's

a battli-. f<>r {Miragraph 64

i acts troops \vh. tin. I it necessary to use uniforms captured

t i"i 1 1 th- to adopt "some striking mark or sign to

M-iis^h the American soldier from the enemy/' And a

.similar provision is to bt> found in the British official manual

' .11. ImUnuliomat Law, p. 517 ; Oppenbeim, InUr*atitmal Law, Vol. II,
p. 165 ; Hluntarhli. op. cit. eeo. 805. who aays that "it is not contra

national Law to deceire the enemy by making uae of hi uniform.
aUndard, or flag." but that they mut not be naed in battle
ought to fight loyally and not to make nao of the maak of friendship to
the victory." Thi u simply torturing common aanae to find
m illogical and unmutainable rule of war now obsolete. Dr. Lawrence
tn/ional Law, p. 44A) ay that the rale U " arbitrary " but " generally
received " that " troops may be clothed in the uniform of the enemy in order
to creep unrecognised or unmoloted into his position, but during the acUal
conflict they mast wear some distinctive badge to mark them off from the
soldiers they assail." I question the existence, to day. of the former part of
such a rule, outside *of the pages of jurist* Honfils (op. r* sec.
condemns the use of the enemy's flag or uniform, absolutely, as an act of

8 Hall PUlel.o/^c* pp.

106 WAR RIGHTS ON LAND CHAP,

'* and Ctodom* of War, pp. 31-2). The American In* 1
tions stigmatise as perfidy "the use of the enemy's national
ri tod a i. flag M oih, r -niiil.-in of nationality for tin- purpose
of deceiving the enemy in battle. Tin- Hague Rkglemcv
really left the matter undecided, for it refers to the improper
use of the national flag, insignia, or uniform of the en* my.
I think the Anglo- Boer War furnishes an excellent preced- -nt
guidance in this matter, with which I shall deal after a
hasty review of the practice in some prior wars. It is most
probable that, under present practice, the assumption of an
MIV'S uniform or flag, even before a battle, would In-
regarded as a violation of the laws of war, unless the circum-
stances showed that there was no intent to deceive.
ofencm 8 's ^ nere are ver y man y instances in the Secession War of the
uniform in Federal uniform being assumed by the Confederates, by reason
of necessity and not as a disguise. From the first the
Southerners were short of uniforms. The appearance of those
captured at Shiloh, where the strong arm and brain of Albert
Sidney .Johnston were lost to the South, must have resemM< d
that of FalstafTs gibbet brigade. " They had old carpets, m-w
carpets, rag carpets, old bed-quilts, new bed-qui Its. and ladi<-
tjuilts for blankets. They had slouch hats, children's hats*
little girls' hats, but not one soldier had a soldier's cap on his
head." 1 It is little wonder that even Stonewall
strict disciplinarian though he was, had to permit the practice
of wearing the enemy's uniform when the supplies of butternut
clothing the famous Confederate grey ran out. 2 The Con-
federates, like the Boers in 1901-2, depended largely for their
supplies and clothing on the chance captures which they made,
and the bad stuff which the Northern contractors furnished to
the Union armies was a frequent subject of joking comment
among the Secessionists. Perhaps the most useful result of
Wheeler's raid across the I in October, ISM, was that

he was enabled to clothe half his force in captured Federal
uniforms. 8 The pale blue overcoats of the Union troops were
largely worn by the Confederates, who had no others in the

1 Draper, op. rii. Vol. II. ,,. 166.

II. n.li -raon, Stonewall Jark*>n t Vol. I, p. 1221.
VilUutl, Reminiscence*, Vol. I, p. 205.

MKAN INJURING THJ I \KMY 107

Inter stages of the war. 1 Loe's troops were partially clad in
Federal uniform* when they crossed the Potomac for the great
struggle mi ' \ .-tarn.* When Stonewall Jackaon threw

If, an ou h.-.-r Muu, on Pope's communications at

llanessaii .In where was stored the lavish wealth

to* and stores which the North had gathered for its sons,

ittered Confederates " from j.il. - of i,. \\ arrayed

themselves in the blue* uniform* of the Federals." * It would
bean interesting psychological study to examinr h-,w far the
brilliant exploits and daring achievements of the Southerners
were due to the very unromant of a desire to re-

h th-ir wardrobes, and to assign the proper values, as
propelling forces in action, to the desire for glory, patriotism,

' in a righteous cause on the one hand, and, on the other,

Miple fact that the Union men had trousers, boots ami

>hirt.s and they (the Confederates) had not. There is no donl.t

many a bravo charge was made to the battle-cry of i
want that hlank.-i I Yank. u r it "Ut f th-m boots'

ir t< have tacitly admitted that tin- appropriation
of th. ir Miiiforiu by the enemy was justified by thr hitter's
<-i mi instances. I shall have >IM thing to say in Chapter \ I
as to the assumption of the cn<m\V uniforms in this war for
the purpose of disguise and d

In tht Russo-Turkish War <>t 1^77 s, wearing of th.
. was fairly common on both skies. The
Turkish ! t- uders of Plevna took Russian and Roumanian
uniforms from the corpses: " many a Turkish greatcoat
concealed a complete set of the*- Asians could not

complain. t-T th. y <lid the saim-. When Oourko's men were
shiv, mi- in !;.- cold of the Balkans, they were glad to wear
the Turkish clonks, unit.. rms and boots which were captured at
the depots at Kazanlik.* Indeed, holpini: oneself fn>m th.
l.i'l i- war. A British Fi-ll-

Marsna) has admitted tlia? h. piMmnti a pair of boots in this

Oenend J. & Gordon, Rcmimixme*, p. 494.

Headman, op. r, \ ,,i II, p. 90S.

Ibid, p. 154. from O. H. Gonlao'. Army o/

Colonel K|Mii.-hin. Opmt*m* o/
-ck't tmnmUUooK pi

io8 WAR RIGHTS ON LAND CHAP.

way after Ink. ! i nan. 1 Hut that was long before the baton in
the knapsack, or the British officer's equivalent had

rialised.
i" Airl" Iii the later stages of the Boer War the practice of assum-

i % i

I'.ritish uniforms became very common among the Boers.
AfU-r th. action of Roodcwal, De Wet .V m* -n were clothl
nitiivly in khaki, only their wide 1 indicating their

nationality. 8 Every English prisoner was subjected to a
process of disrobement which generally left the victim in an
absurd if pitiable state of destitution. It is on record that one
officer ran six miles in his shirt after an experience of this
kind and, Pheidippidcs-like in several fcs, reached a

British column as the bearer of news of great moment and of
an extremely unorthodox, almost Grecian, njuipiin-nt. 8 Lord
Mrthurn himself came near experiencing the usual mt-
schuddcn " (stripping). After his capture at Tweebosch, ho
was lying badly wounded in a tent, conversing with De la Rcy,
when a Boer appeared and " began, from the force of habit as it
were, to remove the gaiter from Lord Methuen's unwound. 
Wet himself points out, their destitution was caused by the
action of the British troops themselves. Not only did the
latter seize or burn the clothes which the burghers left at their
tarn is, but they took the hides out of the tanning tubs and cut
them to pieces. 6 In the Pretoria Museum one may -
complete costume worn by a Boer during the war, which shows
the straits to which the commandos were reduced : it is made
of the hides of baboon, blesbok and tame buck, and the boots
are riveted with carriage buttons, while the hat is made of
-tomach. The British official view was that the wearing of
British uniform by the Boers rendered the wearers liable to

1 Sir Kvelyn Wood, From Midshipman to Field- Mar thai, Vol. I, j
After the battle of S. Juan in 1898, Roosevelt's men had as covering only
" what blanket*, rain-coats and hammocks we took from the dead

/fulerti, p. 161).

.ilip Pienaar, With Steyn and De '.'. |> l"7
Time* Hitiory, Vol V, p. 289. 4 7W. p. 7.

De Wet, Three Years War, pp. 133, 288.

Ml \Vs Ml- INJI KING Till 1 M -MY 109

hment, lut. generally speaking, the practice wan
aised as U !, and no punitive measures were

utilrsM an intention to deceive was appan

In liad CAMS of wilful deception, Boer* were sentenced to l

wearing our uniform, Imt K tumor, a* a general rule, took
lenient view of the offence. It mtut be born.- m mm.! that tin-
..u.-i, i,v, the one charaoteristic feature of the Boer garb and

HMgniaable at great dinLanoc*, had been adopted by the

In tii. /''iftfri relating to Martial Law in South Africa,
recordM will i I of Boers being condemned to death or

penal *M ..-.inn- I'.nti-h uniform,' but m th- vast

majority of canes n< pum-hm. nt \V:LS intlirted. An instance of
the deceptive and therefore punishable assumption <>f British
dress is the ii .f Tafel Kop, 20th December, 1901, where

a detachment of Yeomanry and Irregular Horse was annihilated
owing to the Boers, under Commandant Weesel Weasels
drawing up in n-tfuhir formation and manoeuvring like British
cavaln. with khaki -dressed skirmishers thrown out in front,
and thus succeeding in capturing the hill befot saw

thiou-h tli- rus, * !) la Key's force which captured I>.nl
Methum in March, 1902, was almost entirely dressed in khaki.
-\\hi.-h iiuulr it impossible/' says Lord Kitchener in his
.despatch, "for our infantry to distinguish between our troops
and the enemy," * but here the malicious intent was not so
apparent as at Tafel Kop. The attitude of the British
authorities in this matter appears to have been a very proper
one; they looked behind the fact to the intent, behind th<-
actum to the mnw, and, while overlooking cases of assumption
of British uniform which were due to real necessity, dealt
severely with .-very case in which a design to dec*

1 The Secretary of Slate for War stated in the Hooee of Common*, Ittth
March, 1902- In aooordanoo with the otutoma of war
aatkxw, Boera captured in British uniform are liable to be toot

In certain eaaw Lord Kitchener haa inflicted thi. prn ,
-uTt Army D+alm, eaioo 1908, Vol I t . I49S.)
1 Tim<* //Mfory. Vol. V, p. 255.

9 See, r.y., paget 185, 155, 185 of the Paper, referred to (Ol tSI of
KM

/V<4 //Mfory, VoL V, p. 495.
* Wyman't Army /fcoafrt, lor. /. p 1989.

no WAK KIGHTS ON LAND CHAP.

.irent. Jt i^ t> !>< .1. MIV.! th.-ii tut mv \\.-irs may .MM- this

il>l- line adopted, instead .f tin- slnj.i.l nil.- <>l tin- ji,
with its arbitrary distinction between the prelude to bail I. ami
th.- bait I.- itself. 1
Thewer- Art id.- \\III (f) makes no mention of the woarin.

lt , civilian clothes by belligerent troops, as a lis^nis- to further
the execution of son n li.. stile act. Tin- point is covere<l 1>\
Article I of the fib/It nnt. which requin - th<- organised forces
of a belligerent to wear some kind of uniform and further by
Article XXIII (b) in regard to all cases in which there is a
treacherous attempt to kill or wound. A cas hearing on the
question arose in 1904. Two Japanese officers (Major Ishomo
Jokoko and Captain Jersko Jokki, both of the General Start')
were captured, disguised as Chinamen, trying to dynamite a
railway bridge in Manchuria in the rear of the Russian forces.
They were condemned to death by court-martial and shot.
Dr. Oppenheim, who is my authority for the incident, states
that it was a case of " war treason," 2 but it might equally w< 11
be regarded as a case of illegitimate belligerency under Article
I. The Russians themselves appear to have worn Chin. s.
clothing frequently. An impartial observer says that they <lil
so solely because of the non-arrival of their uniform winter
clothing before the cold weather set in, and that there was no
attempt at disguise. 8 But there is evidence that in some
cases at least the local dress was assumed for purposes of
scouting and skirmishing, 4 and the Japanese Government 1< . 1^, , |
a complaint on the subject with the St. Petersburg authorit i >,
who denied the truth of the report. 6

The question of the abuse of the Red Cross Hag or

1 Had Britain followed the jurists' rule and shot every Boer who wore
British uniform in battle, the military executions of the war would hi\r
been increased a hundred-fold.

* Oppenheim, International Law, Vol. II, p. 270.

3 Report* of Military Observer* attached to the Annie* in Manchur,
American Officer*, p. 144 (Lieutenant-Colonel s< i m \ ! r H report).

4 Kinkodo Company's Hittory, pp. 777, 1054, 1201.

Artga, op. '. ]>]'. -'"_' !. The fact that China was neutral does not
affect the question ; her neutrality, so far as the theatre of war was
concerned, was a mere phrase, and is in any case immaterial to the point in
question, which is that of a combatant assuming the character of a pacific,
non-hostile, individual.

.v MEANS OF INJURING III! I \l MY in

brasHanl \\tll I.,- .|,-,ilt \\itli ... il..- chapter on the Geneva Con- Abuaeal

5 '"
loot of Article \ \ ! 1 1 i one of the greatcat The

Ittei in th.- \\holr of International law. 1 It U best to
approach the question by Kitting a perfectly clear understand- t** *l
ing a* to the war right of destruction ami aeixure of property,
and to do ao, one IMM-I hark i..r*ard to Article XLVI, wl.
with Am \\: in ;i. conventional war law on the

et. Am \1.VI h\> tl'-wn that private property is to
be respected ; An \\1II (g), that de> and seizure

of any property is illegal unless imperatively demanded by the
necessities of war. The two Articles must be read together,*
ami so read, tln-y implicitly admit a war right to destroy or
seize any property, if the destruction or seizure is a pressing
military necessity. The right extends to all property whatso-
ever, public ite, hostile or evm n Mitral, 3 unless the

property is specially protected by some definite war law. The
property so safeguarded is the mattritl of mobile sanitary
:i under the Geneva Convention. Every other kind <>t
property can be, and has been, destroyed in modern war.

it nn the right is that the destruction or seizure

must have as its object the " weakening of the military forces

he enemy," that being the sole legitimate end of war.

1 At tho Hague Conference of 1800, a proposal waa made to suppraat
\ \ 1 1 1 (g) on the ground that a later Article declare* that private
property mut be respected. It waa, however, retained, beoaoae the
"Chapter" of which it form* a part in deaigned to limit the effect* of
hostilities proper. whilM him reference rather to the caae of

occupation. (Uago. 14.V6 ) A further argument in favour of

retention of the nub Article U that it refen to all property, public or private,

the later Article only mention* private proper

Article XLIV ia in the aecUon of the Rt.jlem** which deal* with
occupation, but it waa decided at the Hague Conference of 1800 that "the
restrictions imposed on the liberty of action of the oerMjNnf, apply a fortiori
to the insadar, whan there U as yet no ' occupation ' in the eenae of Article
i i. I IB. p. 108.) See alao Profeaaor HulUixri note to Article
Mil ho Britiah manual, p 34.

> 1870, the German military authorities in Alsace Mixed MX or seven

hun.lrtd railway carriage* of the Central SWIM Railway, and also a

considerable quantity of Austrian rolling stock, for use in their operations.

retained them for some tine. Furthermore, they sated and ank in tne

Knglwh veaaela which happened to be moored there, the object of

the destruction being to prevent French gun-boata turning up the river. Aa

li cases, see later, pp. 510-13, and Hall, Inlirmttimmt Urn, p. 744

ii2 WAR RIGHTS ON LAND CHAP.

Devastation pure and simple, as an end in itsc-lt .If

contained measure of war, is not S.UH MMD, <| by war la\\.
Permissible devastation presents it>. If m\anably as a means to
a military end, as a factor in a legitimate operation r \\.-ir.
There must be some reasonably close connection betw< < n the
destruction of property and the overcoming of the enemy s
irmy. To destroy with the intention of damaging the hostile
mineiit's pocket, i^ illicit imate. Tin* |M -r. nui.-il ohjrrt,-
lesson in this matter is the de>t ru.-t imi of the public buildings
at Washington in 1-Sl 4, when the IJriti>h liv.s under Major-
ral Ross and Admiral Cockburn burnt the President's
house, the Government Offices and all the archives, but, as if to
put the finishing touch to their masterly illustration of " how
not to do it," left undestroyed a great quantity of munitions of
war in the Navy Yard and also an extensive cannon foundry. 1
Devastation as an operation of war per se may be said to be
wholly obsolete. When the French devastated the Rhine
Palatinate in 1689, in order to leave a bare desolation between
the French border and the German foe, " all Europe," says
Vattel, the first great scientific jurist, "resounded with
invectives and reproaches." 2 Even in that age men felt that a
belligerent had no war right to make a solitude and call it
war. Were the practice revived to-day, the general outcry
would cause the responsible belligerent a greater moral damage
than the material advantage secured. It is only to some
reactionary minds that devastation as a means of putting
pressure on a nation has recommended itself in recent times.
Sheridan, whose motto might have been Vcc metis, so ruthless
and indiscriminate was his ideal of war, has left on record his
opinion that to bring about the end of war a people ought to
be reduced to poverty by the destruction of their means of
livelihood. 8 When a British cavalry column raided the south-
western corner .f the Orange Free State in December, 1900, and
burnt down Commandant Lubbe's farm, The Times approved of
the action on the ground that the destruction of houses and

1 Hewaon Clarke, The Hittory of the War from the e*(abli*hmenl of I

X VI II on the. throne of Frawe to the Bofnttirdmf.nl of Alyiert, London. 1 M 7.
p. 80. See Hall, International Law, p. 63:*.

2 Quoted Lawrence, International Law, p. 442.
Sheridan, MONO**, V,,l. I. |.|- l

iv Ml \NS OF I Ml KING THE ENKMY 113

farms was a low which the Boon* would appreciate and * hi. I.
w..iil.l regard an much more serious than the UMM of many
in. n in the field of battle. The Mine paper remarked that,
when the enemy has little public property, the destruction of
a peculiarly efficacious method of war. 1
I Bismarck, whose views on warfare were Jar more drastic than
those of Moltke and the oth.-r military authorities of the
I German armies, declared in 1870 that " the more French
I people had to sir i long for peace, what-

r.. minions we made."* It is fairly safe to say that no
i-. .i l',,\s, i A .'iM to-day act upon this pi
'I iu* general rule which I have stated, that devastation must

I J I i

be part and parcel of some military design to overcome the UMMOP?

il- :mu\. furnishes the criterion of the right or wrong of***w
I any given destruction or seizure. But, as in the case of most
I general rules, the applicat . gives rise to doubto and

litlirulti.-s in practice. The question at once presents itself
i How close must the conn- ween the act of devasta-

and the operation to war to which it is ancillary ? And
this question is closely followed by another, not less difficult
I What constitutes an imperative necessity of war ? There is no
J concept in in International Law more elusive, protean, wholly
i unsatisfactory, than that of war necessity. One can only
line its nature and scope by examining the actual events
Rbf war; theory is of lit! Th. practice of Governments

I and commander*, anl ii-t th-iv,n !' their opponents, of

I Co t iry public opinion, and of history, are the only real

i-\ i.lrno- t hat we can get as to what the term connotes. I shall
I try to illustrate the general \ * f devastation (and seizure),

Hid especially tin- t\\..-t'..M .iitii.-uliy to which I have referred,

xamples !'n. m th- m. tant wars of recent years.

No question con arise as to a commander's war right to seise
or destroy his enemy's war maUriel or the other things
tioned in the first paragraph of Arth-1.- LI 1
orty that may be used for military operations); likewise

1 SM DwpftfMl, op. ni. p. 227. Tk* Timm KirtorUn, bowv
hit jounwUwl oollMgoo, remarks that Hahingtoa's Mikm -
rvganletl an warranted by military exigeneMft, and lidud a

riabkproUt from O* Bow leadan." (VoL III. p. 118.)
Buach. Bitmarrk, VoL I. p. 198.

n 4 WAR RIGHTS ON LAND CHAP.

ihiii^s mentioned iii the second paragraph of tin- MBit
Article, but in the latter case subject to complication 1
paid to the owners. The destruction or sei/un of the i..,.l
^uppiics, remounts, forage, and uniforms of the enemy's army is
an obvious method of weakening his armed resistance. With
tin- destruction of food supplies or clothing, or the seizing of
horses, etc., which, though privately owned, arc likely to be used
by the enemy for his operations, I shall deal presently, and the
whole subject of requi>itin and contributions will he separately
handled in a later chapter. At present I am dealing tnora
particularly with the case of seizure or destrueti..n of prop,-nv
by an army which has the enemy still before it, and which has
n<>t established a definite condition of occupation in the sense
of Article XLII ; but my remarks are also applicable to the case
of occupation, so far as the conditions precedent to justifiable
destruction and seizure arise under occupation.

Property As to fixed or movable property, not being the war moftV/*/.
near 8tores or supplies of the enemy's army, which may be destroyed
appropriated in all circumstances, it is clear that the
-itiiation of such property within the zone of immediate
hostilities may justify its destruction for the purpose of attack
<r defence. 1 No commander will hesitate to level houses, vine-
yards, fences, anything, for a sufficient military reason, to give
his men a clear field of fire, or to prevent the en< my using them
cover or as a mark by which to range his lire. To be
stjueamish about the rights of property in such a matter
court disaster. Sir Henry Lawrence was strongly niv-d by his
advisers to demolish the mosques surrounding the Residency at
Lucknow ; he refrained " Spare the holy places," he said and
the very heaviest losses which the British garrison suit
dining the siege were caused by the fire from the buildings he
had spared. 2 " Institutions devoted to religion " are assimilated
to private property by Article LVI of the Bfylement, and a
commander has an undoubted war right to destroy such build-

1 The things that can be used for warlike purposes (see Article LI 1 1
their very nature subject to seizure or destruction. All other property is
primarily free from seizure or destruction but may lose its inviolability from
the circumstances of its situation. The first kind is essentially destructil.il- :
th- second only derivatively.

Kaye's Sepoy War, Vol. Ill, pp. 439-40, .VJI.

Ml ANS OF INJURING INK ENEMY 115

t is npnesssry I-T it .,i In* command.

>|..U. !l. -in in i\ 1.. hu'h .-i.i. .i., v i, . . || n,.! vs. ir An-i '!..

SAJIK pmi'-i |.!.-> apply to the case of civil hospitals; it in no
breach of war law for a commander to garrison or destroy any
such i'uil.liii-s if imp. r:. -M- military necessity demands, bat be
should in such a case provide fur the patients nlsimlisui One
is surprised to find an astute Boer oommandaii in some-

what the same way as Lawrence in the Mutiny. Whan
General Bnller attacked Bergendal Farm (near Belfast, Trans-
vaal) on s'ti8t, 1900, the British artillerists were able to
range th .uth destructive accuracy because the Boer

Miandant had omitted, for some sentimental reason, to cut
'e on the farm. 1 In 1904, when the Japanese
advance was threatening Liaoyang, the Russians wished t<>
down the tall millet grass (kaoliang) around the town, in order

we a clear field of fire for 800 yards. 'IV local Chinese
demanded an exorbitant price as compensation for the crop,
and the Russians haggled over thus question, instead of doing

nee what they were forced to do eventually, namely, take

matter into their own hands and cut the crop themselves.

result was that all kaoliang was not cut when the Japanese
arrived and what was left standing gave them an invaluable
in th -ir attack.- The i'rench burnt the fine forests round
Paris in 1870 as a raoasui .m-l .-n.- rann.t conceive

that been more can-in I ..t hostile pn.j

than own. With such an act of national sacrifice as

war law has no concern, except to use it to show how

usonable it would be to expect a belligerent to allow
military oonsi<i< -r.it ions to be <>ut\vri^hc<l l.\ respect for the

tte property and still less the pubi i the hostile

the Alma, the Russian commander, Prince

> rMCflJfMtory, V..1 IV, p. 452.

Report* <tf MMary oWrrrr. ottarhed to Ife Armi** im J/anrA.rwi, Ay
America* O/frm. (OMrml Staff. W^hington, 1000), Part I. pp. 1W,
Oowcn, Rtvuo-Japamu* Ifor, p. 337.

ho fonU, which were aoaked from the prevailing rain, were find by
mean* of petroleum and fan-tar (Gaeaell's //Mfory, Vol. I, p. 148). 8a
Hotier. JfeHMo. JYMMM H'or. VoL II, pp. 33, 280. who r ihe dooliUon
wan not complete eooogh-a ' huge belt of ahalUr** wan left to eare the
Pnuaian army from being paralywd by the frt of the hard winter of

|NT 1

I 2

u6 WAR RIGHTS ON LAND CHAP.

Mentachikoff, set fire to a village \\lii.-h lay in the path of the
Britisli 'Jiul l)i\i>i'M, ami ly ling so blotted out the ground
they were to operate on ; " it was," says Kinglake, " the most
sagacious of all the steps he took that day," for he had not
enough troops to defend his line. 1 Had the village been a
British one, the destruction would have been equally justified.
In 1870, the Germans burnt the villages of Peltre, Basse
Bevoye, La Maxe, and Magny near Metz to prevent their
being used as shelter by the French in th'-ir sorties, as tln-y
were in the sorties of 22nd and 23rd September. 2 The action
was the more irreproachable because the French had themselves
made a zone militaire, from which everything was cleared away,
round the fortress, 8 and the Germans could hardly be expected
to show a more sensitive regard for the rights of French
property-owners than the French generals. A commander's
first duty is to secure the success of his side by every means
not forbidden by war law, and war law forbids only such des-
truction as is not warranted by imperative military necessity,
The requirements of attack or defence may render the presence
of property, no matter what its nature is, a " nuisance " (in the
legal sense), and if one has a right to " abate a nuisance " by
self-help in peace-time, one has a thousand-fold stronger right
to do so in war, when life or death may hang on the sparing or
destruction of a tree, a crop, a house, a village, or even a chuivh.
The American Instructions lay down (paragraph 18) that
" military necessity . . . allows of all destruction ni' ]n>]M-n\.
provided it be "indispensable for securing the ends !' war"
(paragraph 14). The British Manual is equally explicit :

The "necessities of war" may obviously justify not only the
seizure of private property but even the destruction of such property
and the devastation of whole districts. 4

The following " double rule " is laid down in the German
KrUgsbrauch, im Landkriege (p. 54) :

No damage must be done not even the most trivial which is
not necessitated by military reasons. Every damage the very

1 Kinglake'a Crimea, Vol. Ill, p. 54.

8 German Official Hidory, Part II, VoL I, p. 185.

* Daily News War Correspondence, p. 370.

4 The Law* and Cwtom* of War (Holland), j,

iv MEANS OF INJURING THE ENEMY 117

gimtostr-is justifiable, if war daman* it r >f .t U oonieqiMoe*
of the proper carrying on of war.

Thmry in in agreement with tho*e principles. 1 War being

what i aunt deal roughly with prop* : h i* situated

ii the immediate sphere of its activities, and proprietors

(: ' - r.rnf.v.. I-.! fa grifl .u,l I, u i! VB] khq !,- Q

oheriahed possessions damaged, not only unintentionally aa an
incident of battle, but deliberately and as a measure of tactical
security. A rigid adherence to the principle of the inviolability
of private property would, as Sir Travers Twias points out,
make war absolutely impossible;* it would checkmate every
invading army at the first step. Sherman who, having been
" jack -of-ul 1 -trades" 1 (yet assuredly, despite the old saying,
thorough master of one), was able to view in proper perspective,
anil uith-'Ut tin- purely professional soldier's prejudices, the
right** of the inhabitant as regards his property and the rights
o! tin- U-lligerent as regards his operations, has something
illuminating to say on this as on many other points of war
law. The Bulletin of Memphis had complained of the " waste "
committed by the Federal troops. Yes, replied Sherman to
the Editor, it is M waste/' but it is also war, for war is M waste "
waste of lives and waste of property. A command must
commit waste in many ways it must trample crops, take
materials to construct fortifications, cut down fences, clear the
id of everything that would obstruct its fire or give cover
to the en* -uch damage is chargeable, not to the troops

who cause it, but to the very nature of war, for " generally, war
is destruction and nothing else." 4

So far I have dealt with the destruction or seizure of (1) army Rail
stores, supplies and mattriel, and (2) all property which is situ-
ated in the immediate fighting area. The important question

1 Sea BonflU. op. cit. etc. 11M and ff. who ciU many Authorities ; Hall.
International Loir, p. 531 ff. : Lawrence. International Lmw, p. 440 ff. :
Blunuchli. op. fit, MO. 602.

Sir Trmra Twi*i. War, Introduction, quoted Booffl*. ofi.rW.MC. 1197.

crmaa had bwn in torn MI offloer in the regular annr. a partner in a
banking arm, an attorney at law. a wperinUmdent of a military onlkgi, a
prwdent of a Railroad company, before the Ciril War recalled him to the

..rv,-i- of iHM

4 SH-m^ V^^. VoL I, pp. 7S-8.

u8 WAR RIGHTS ON LAND CHAP.

of railroads, telegraphs uixl similar means of communication
must now be considered. Art id.- Mil f th I !> ; figment gives
a belligerent power to seize such property, subject to the pay-
in, nt of compensation when it belongs to privatr individuals.
Has li th<> right to destroy as well as to use ? The answer is
undoubtedly, yes. 1 An obvious and usual method of hampering
an ninny's movements or cutting off his suppli*^ and warlike
material and stores, is the destruction of the railway line on
which he depends. Both belligerents in the Secession War
adopted this method of injuring the enemy over and over again
and the American railroads were not, and are not, State or
Municipal but private property. Special bodies of Eiiini
were employed on both sides for the destruction and the repair
of railroads. In Sherman's army the usual method of destruction
was to make the rails red hot and then bend them round trees
or twist them into corkscrew shape. 2 In the march to the sea
rails were left to ornament the forest trees of Georgia. Expert-
ness in the art of destroying was matched by expertness in the
art of repairing. "We always," says Sherman, "kept distri-
buted along the road duplicates of every bridge and culvert of
any importance," 8 and so quickly was a damaged line put in
working order again that the chagrined Confederates declared
that " old Sherman carried a duplicate of every tunnel along,"
too! 4 The German armies of 1870 contained five corps of
railway engineers "whose particular duty it was to repair or
destroy lins <f railway as the necessity might arise." 6 On the
ich side, companies of Volunteer engineers were organised
to operate on the German lines of communications with ]>
crowbars and powder petards and cases. 6 The destruction of

1 See the discussion in Fillet, <>)> ' i< J64 ff.

8 General Slocum gives a dutaiN.l description of th- latter method in
"Battles and Leaders" (Century Magazine, Vol. XXXIV, p. 930). See also
(Irani, Memoirs, p. 554.

' I.e. in the line of communications from Chattanooga to Atlanta,
nan, Memoir*, Vol. II. p. 1-1.

iierman, Memoir*, VoL II. j>. 1">1. Sherman's repair-party iimler
Colonel W. W. Wright was able to repair the eight miles of line from Big
'y to Ackworth, though all the ties were burnt and the rails bent, in
seven days.

rl.in.l K.I wards, op. cit. p. 226.
6 Hosier, Franco- Pruwnan War, Vol. II, p. 90.

\NS OF INJURING THE ENEMY 119

railway* in a hflttiro country is reoogmsed ID seroos training

manual- M .i I.I..JNI OpMrioa Ol MB Th. (i.rm.-m FsfU

Service Regulati" ZH0fu< Onto**) assigns the dut .

mftw*j tpi ot p^n. . n vb D DM n li Man bo hdag ';p i k
; ..H, otherwise to cavalry, by whom the disablement of a rail-
way is M always to be attempted in the enemy's sone of opera-

Do tail CM! in is as to the various met:

<i< m..iiti,,n whether by the use of explosives or otherwise, are

M> tli. Manual of Military Engineering * I

hasty demolition without explosives, a plan very similar to that
tin ployed by Sherman's engineer* (that of heating and twist
th, rails) is recommended. 1 The same Manual describes
methods of destroying rolling-stock with grim reticence :

The rolling stock, if it cannot be removed to the rear, may be
rendered unserviceable by burning, or trains may be ran against
each other at full speed on the same line, or they may be run over
an embankment i>y turning a rail. 4

Standardised methods of destroying telegraphs are also given.*
re canals form an enemy's line of communication, they are
similarly liable to destruction. Sheridan destroyed all
locks ..n th. James River Canal in March 1865* My object in
> the above details, which may be thought unnecessary,
will be apparent in a moment

ugh it is abundantly proved that the breaking <( mil- Historical
ways, telegraphs, etc., is a recognised method of war, some J^JSd*
confusion of thought on the subject has led in some modern ?
wars to an illogical practice which virtually amounts to deny- dsstror
ing tin- legitimacy of such destruction. This is the practice of JjJJJI^
holding th.- peaceable population of a district responsible for
damage done to the railways, etc., therein, and puni-hm.; them
even when the damage is done by their national troops. '
practice has its origin. an<l. in proper limits, ite justification, in
*l war right of an invader to puni>h th. inhabitants
of an < I country for anything in th. of a hostile

act As has already been said, sm-h inhabitants, in ntuni for

rnuui JWrf Swrrwt Rtywlatio** ( Knglkh Ofidal tnuwUUm, 1900). pp.
MV (I90AK MC. fc! IT.

/ m < /&&*

* Draper, </.. r,V. Y, 1 1 1 . , ..AM ; Shcn.Ui,. Memoir,, VoL II. p.

120 WAR RIGHTS ON LAND CHAP.

the privilege of non-molestation, owe the invader the duty of
quiescence, and if they damage his line of communi< -:iti..n tli.-y
TheoMe forfeit their non-combatant privileges. Further, if they abet
'" l th.'ir national forces in injuring a railway or in any other act of
war , or if they give th m >h -Iter from which to carry nut such a
design, or even if they fail to warn the occupying troops of the
presence of raiders or of damage having been done to a I in.-.
wlu-n the duty of doing so has been enjoined upon them by
proclamation, they lay themselves open to penalties. In any
case of destruction of a railway or telegraph line in an occu]>il
country, the very nature of things throws the onus of disprov-
ing their participation in the act on the local inhabitants. The
breaking of railways or telegraphs is not an overt act, like
opposing the invader in arms, but one which can be done
secretly and without leaving traces of the perpetrators. Th.
ease with which such damage can be done makes it necessary,
for the security of the invader's communications, that the guilt.
of the inhabitants should be presumed at the outset in all cases
of the kind. The presumption is very strong where the
damaged line ruus through an occupied territory, from which
the enemy's troops have been driven to such a distance that
there is no practical possibility of his raiding parties having
effected the destruction. Jeb Stuart would no doubt Imv.
raided a territory studded with army corps to the square mile,
blithely and as a morning's work, but, taking ' occupation "
in the sense of real and definite mastery of a territory, and not
in the looser abandoned German interpretation (as to which
later), it may reasonably be supposed that, when a line in an
occupied district is wrecked, the inhabitants there have been
indulging an improper taste for gun-cotton or crowbars.
Punishment under war law differs from punishment under
municipal law in that it is solely deterrent and that the neces-
sities of war very often demand that it must be vicarious. 1 1U r.
Sutherland Edwards says that one of the principles of war law
is this : " For every offence punish some one ; the guilty, i f '
possible, but some one." 2 The application of this draconic prin-
ciple to an occupied district is fair, upon the whole. Where a

1 Atiga, op. cit. p. 327 ; Edwards, op. cit. p. 294.
9 Edwards, op. cU. p. 285.

MEANS OF INJURING Mil 1 \1 MY 121

nomy's regular forot* is so highly unlikely thii-
may reasonably be left out of consideration, there is notl

ury to war law in puni-lung the eivil inhabitants an a
retail r an act \'\ \\\nch cannot have been the

work of their count r\'s recognised agents of war. The com-
mon-law ml* ..t (in. i Iful damage to property
may bo compensated for by a general levy on the district in an
analogous case of vicarious and general num. ntI punishment.
these considerations will help ono to understand
practice of making the inhabitants of an occupied
ict responsible for the sal. > *f th. invader's communica-
I'he German Field Service Regulation* lay down (page

- a good plan to make each locality in the neighbour 1 il <.
of a telegraph <>r t.-!. -phone line responsible, under heavy penalties,
!'! the pretenratkm of a particular section of the line.

nUrly in th. Russo-Japanese War, the Japanese generals

!nl thr inhabitant of the Manchurian villages by procla-

ake concerted action to pr.-v.-nt the

destr ; ^niph lines or railways within t In- limits of each

village, 1 All along kl N Manrhun.in railways, Marshal

the Marquis Oyama ordered a proclamation to be posted
win* h instructed the Chinese thus :

The inhabitants of each village will assemble and decide on the J
meaaureft to be taken to safeguard the line in the limit of their I**** *
respective villages.

If, as a result of negligence in MurxoilUnce, the line is found
destroyed in the limits of a village, the inhabitants will be obliged

to piiy nil iiiili'iunity rjiinl to thr total ;uiK'imt ! tin- ;i!inu.i! t.iv -

iuii<l by the village. 1

riga. op. !. p. 388.

* Ibid. p. 891. ProfesMr Ariga UU (p. 388) that Rosstan proclaim,
tions (in th Chioese language) wvra found along Ui root* of th<* 4th
JapaneM Army, warning the inbabitanU that each time the telegraph line
wa cot the neighbouring district would be burnt, and the mJ*Hm*t
taawendL Dr. Lawrence ( Bar and XeuJrnJuy in /Ac /br Rut, p. 08)
rsmarlu that the attitude of the Russian military authorities
population of Manchuria was unneoeMaHly eevere and that their
for the brmking of railway and telegraph lines was a

indignation at the much milder punUhment of
the Anglo- Boer War.

WAR RIGHTS ON LAND CHAP.

Professor Ariga remarks that this was no nmi, ihuna menace,
n no case was the threatened penalty exact. .I 1 The attitude
of the Japanese authorities on this as on every point .r war law,
was sound and justifiable. Behind tin- broad front of ili.-ir
advancing armies, which had pressed back the Russians to the
north, a complete and undisturbed condition of occupation had

bO established. and they \vnv enlilled t.. assume thai any
interruption in their line of communication could not have been
ted without the help or connivance of the inhabitants.
Tin* second paragraph quoted above shows that it was intruded
to give the inhabitants an opportunity of rebutting the pre-
Undite sumption of their complicity, This is a great advance of t he
practice of the Germans in 1870-1 and the British in 1900-2.

IS In 1*70-1, very severe treatment was meted out to the inhabi-
' tants of any district in which the German communications were
interrupted. Huge fines were levied on communes in which a
line was damaged by persons unknown. 2 When the railway
bridge over the Moselle, between Nancy and Toul, was blown up
in January, 1871, the town of Fontenoy was burnt down by order
of the Governor of Lorraine, as a punishment for the destruction. 8
Prominent members of the French civil population were forced
to accompany the Germain trains as a kind of security against
accidents on the railways. 4 With this last mentioned point I
shall deal more fully in the chapter on the sanction of war
law. Had France, to the extent of the invasion, been occupied
in the same way as Manchuria was occupied in 1904-5, the
n m method might perhaps be defended. But, for the most
part, it was not really " occupied " at all. As I shall show later
(see page 169) the German authorities held the opinion that
occupation might be " constructive," which really amounted to
its being not being occupation at all. There was hardly a part
of the German line of communications which was not at the
mercy of the raiding bands of the French armies. It is cl
unjust to punish inhabitants because their national troops carry

1 Ariga, op. cti. p. 388. I find it stated, however, in the Kin kudo
Company's History* P- W^t tn(kt * village near Hai -Cheng, in northern
Manchuria, was punished for a breakage in tin u. i_'lil.ouring railway line.

* Kd wards, op. cit. pp. 76. -Ml.

Quwsll's Hif'->< Vol. 11, p. 167 ; Hall, International Law, p. 47J

4 Hozier, Franco- Pruasian War, V..1. II. p. 90.

iv MEANS OF INJURING THE ENEMY 123

a legitimate operation of war somewhere in the

I would bo at logical to punish them became the
enemy chime to fight a battle there. Of course, if they harbour
nu.img parties or guide them, they beoome liable to penalties
' iermaos gave them no chance of i ,.?ir com-

pin-UN -r connivance. Pimwhm. nt !-! lowed sharp and tern and
at a matter of course, on any breakage ..-. The fact U Th

that the German an - appear to have confounded

U-Mrnrtion of a line by the enemy 'M troops, which <
is perfectly legitimate war, and by the inhabitant*, which is**

per and pumh.il>l . ! > I inch, who may be regarded at
the apologist ..trni.il German view, tak<s up the posi-

' hat all interference with a railway line is wrongful. II
ays-

illy, about the hostages, who are taken with <ur railway
trains they accompany us, not to interfere wi'h tin- heroic deeds
of the French, but to prevent malignant crimes. The railways
carry other things besides soldiers, ammunition, and war materials.
They are not a mere means of war, assailable, like others, by armed
violence. Crowds of wounded, doctors, nurses for the sick, and
other altogether peaceable persons are conveyed in them. 1

is a condemnation of the act, per*, of breaking a railway ;
"i-h he goes on to ask " Is any peasant or free companion
to be allowed to tear up th. mils ..r lay stones across, so as at
one blow to endanger the lives of hundreds of these people ? "-
th- reasons adduced for not allowing them to do so apply with
equal force to regular troops. Dr. Buach's words are, in fact, a
condemnation of one half of the functions of the five German
corps of Railway Engineers. It is unfortunately true that non-
combatants may be injured as the result of an interruption in a
railway line ; but they may also be injured in a battle, or in a
ibarded town ; it is an inevitable m-i<lent of war. Professor
Dospagnet very properh kl that. ,r Ul . n the strategic JJjJJJJ^

import .nice of communications by rail, one cannot question a
Cerent's right to interrupt th. m by any means and to
arrest th< trams. ,,r blame him it peaceful passengers are
injmv.l inriiii -ntally. It an . n- my were allowed to shield his
ii destruction on tin- pl-u that attacks directed

1 Buach. #iJ>ira, Vol. 111. ,

i2 4 WAR RIGHTS ON LAND CHAP.

against the lm .r tin- trains might recoil on non-combatants,
the presence of a few women or children in a military train. <>r
in a train preceding a convoy, would suffice to ensure the free
circulation of his troops and to paralyse the other belligerent 's
activity. 1

One finds the German view and practice in this matter
revived in the Anglo- Boer war. Soon after the British
occupation of Pretoria, Lord Roberts issued the following
Proclamation :

No. 5 of 1900.

PROCLAMATION.

i -i-man Whereas small parties of raiders have recently been doing wanton
UJj|^.2 damage to public property in the Orange River Colony and South
by Ixml African Republic by destroying railway bridges and culverts and
Roberts, cutting the telegraph wires, and whereas such damage cannot be
done without the knowledge and connivance of the neighbouring
inhabitants and the principal civil residents in the districts con-
cerned,

Now, therefore, I, Frederick Sleigh, Baron Roberts of Kandahar
and Waterford, K.P., G.C.B., G.C.S.I., G.C.I.E., V.C., Field
Marshal, Commander-in-Chief of Her Majesty's Troops in South
Africa, warn the said inhabitants and principal civil residents that,
whenever public property is destroyed or injured in the manner
specified above, they will be held responsible for aiding and abetting
the offenders. The houses in the vicinity of the place where the
damage is done will be burnt and the principal civil residents will
be made prisoners of war.

ROBERTS, Field Marshal,

Commander-in-Chief, South Africa. 2

Army Headquarters, South Africa,
Pretoria, 16th June, 1900.

In Proclamation No. 6 of 1900, dated 19th June, 1900, Lord
Roberts further stated that " should any damage be done to any
of the lines of railway -or to any of the railway bridges, culverts,
or buildings, or to any telegraph lines or other railway or
public property in the Orange River Colony, or in that portion
of the South African Republic for the time being within the

1 De*pagnet, La Ouerrt md-africaine, pp. 294-5.

9 White paper, Proclamations issued by P.M. Lord Roberts in South
Africa (Cd. 426, 1900), p. 10.

iv MEANS OF INJURING THI EN1 Ml

phere of my military <>JMI n i.>n, M certain detail**! pum-ln... i.r
aU> that :

AM a further precautionary iiMMurare, tKo Director of Military
ilway* )UM been authorised to order that one or more of the
ident*, who will be selected by )..... from each district, ahaJl i
e to time aooompaiiy the train* while trn\-llni- liu-.u^'h their

These Procla tak. n m with Ix>rd Bob-

statement* in letters addressed to Commandant De

August, 1900) and to Commandant-General Botha (2nd

September, 1900), amount to a con n breaking

iys tuid telegraphs as an operation of war. In the former

letter, l.-nl Roberts stated that, railway and telegraph lines

tig been cut and trains wrecked, he had found it necessary
to take steps to put an end to such acts, and had burned d<>\\ii
tin- funiihmi.sr at i.r n-ur which such deeds were j tied;

and he warned the Boer Commandant to cause a discontinuance

'He mixUtd* of the Burgktn under your Honour $ command"
and so render the farm burning unnecessary. 1 In the second
rod to, he spoke of Boers, m >mall bodies, con-
cealing themselves on farms near the lines of communication and
damaging the railway, " th** endangering the live* of passenger*
travelling by train who may or may not be combaianU." * There
lence that anything was intended to be done, or was
l..n. bodttooftJ whether any given destruction was aided and
abetted by the local inhabitants or not As in th<- Franco-
Qennan war, the mere fact of interruption in th<- lin- -ntail.-.|
lun -n tin- inhabitants and that too within a radius of

t-ii miles. Anyone who knows anything of the South African

Wl t. ,.,:,: /VvdomolMMU Mime! fry P.M. Lord Aoterf* ra AwlA

i, (Cd. 426, 1900), p. II.

Oumtpomdtmce at to DtMrurtio* of Property (CO. 582, 1901), p. 8. That
interference with railways or telegraph* on the part of even combatant Boera
was regaided as illegitimate by the British Military authorities, is, 1 think.
proved by the reason which is given for the destruction of three hovels
belonging to General Lemmer at Zamenkomst, Western Transvaal : '* Letters
wen- sent to fighting General Lemmer to warn him of the ^|uric if he
I the telegraph line. He cat it three times, so his three wi etched
hovel* at Zamenkomst, where the break occurred, were burnt." (Astern oj
Bridmgi Bmntt, Cd. &14. 19IM

04 to De*mttio* o/ /VvperTy, p. 1 1.

126 WAR RIGHTS ON LAND CUM

veld will find it hard to credit the stai -m- -nt thai, the raihv i\^
through it eould not be injun d "without tin knowledge and
connivance of the neighbouring inhabitants and the prim-ipa!
<-i\il residents in the districts con<.nil Not a mil.- or the
i-h eoiiimunications was not liable to be damaged ly tin-
mobile, ubiquitous combatant Boers, and the inhabitants would
not necessarily be any the wiser. 1 If the knowlrd-- and
connivance of the inhabitants arc not proved, thru Proclamation
") is a condemnation of railway and telegraph breaking
perpetrated by the enemy's regular combatants ("small part iefl
a) of raiders"), as an act contrary to the customs of war. The two
letters from which extracts are quoted are further evidence
that this was really the British official view; the letter to
General Botha practically reproduces Dr. Busch's argument for
treating all railway breaking as an illegitimate act. Yet
British sappers are instructed in the art of demolishing
permanent ways and destroying trains; and as to telegraph
breaking, the Manned of Military Engineering expressly con-
templates it as a necessary measure of warfare in exactly
Minilar circumstances to those in which the Boers hid
recourse to the act in 1900-2. Section 246 of the Manual
says:

It is assumed that the line to be destroyed lies in a country
occupied by the enemy, to which access has been obtained for a
hurt time by a raid.

As has been stated, the justification for punishing inhabitants
for interruptions of a line of communication is that the ease
and secrecy with which such interruptions can be ett < t <1 t,.i< <
an invader, in self-defence, to assume primd facie that the
inhabitants have been guilt) either as principals or accomplices.
The words of Proclamation No. 5, and of the letters, show
that the local inhabitants were not punished as princijml* :
the circumstances of the war and of the country rebut the

1 The very house in which I am at present writing this book was one of
thoae threatened with destruction in the event of the railway line near
Pretoria being broken. The owner my present landlord and a prominent
IJoc-r citizen had probably as much chance to protect the line as I had i )i u,
in England, for the house is well over a mile from the railway and there are
streets of houses between. (This note wan written at Beatrix St., Pretoria.
-J. M. 8.)

iv MKANS ()! INJURING 'I Ml KNEMY 127

pre*wni|> .' been attcmflicn. The only

post)) renoe w tha wrong per m.

were this the settled opinion of the British Military
authorities, not only would the peace-time training of Royal

i- in railway d.-moiji,,,i, I..- . ither very useless or

rvprohensibl- Kut it would have been gross injustice
to have let not wreckers like Jack Hmdon and

i;r.-\.l.-ni.i.-ii :,'" >iM|.uiii-h.-d wh.-M oayfcnsjd .it- i psjafafciqg

ombatant Boers f>r tin- (assumrd) ilN-^iinnate acts of
these men and th.-n- lik--. Tl. jx.,r ndeed, hopelessly

ill. and it is much to be desired that some ftit
Hague Conference may make some definite pronouncement
as to the legality of wrecking railways and telegraph* and
ill. punishment of the civil popula uied or

occupied territory theret

igh railway breaking is a legitimate act of warfare, Railway
designedly to wreck a hospital train or a train which i* known ^J^Je"" 8
to be conveying peaceable inhabitants would not be legitimate MfW-

would l.u-k th<- css,-nti;il requirement of being intended
to weaken the enemy's military forces. But, generally speak-
ing, railroads being to-day an all important means of warfare
i design would have to be clearly proved against a
Ix-lli^rnit to condemn him for exercising his broad war right
ipt hi^ ri'-my's communications. It is a very sad but
nsequence of a law ltd act that it may endanger or
kill |M-rsons who are strangers to hostilities. The suggestion of

SM.r Pill.'t, that intrrnip 1 i lin- should I** indicated

by some flag or other conventional sign, to be sanctioned by

nal agreement, would have the desirable effect <>t

11 ting accidents to peaceable passengers. 1 But there are

military objections to the suggestion ; a belligerent has a war

right, not only to stop a train, but to blow it sky high, if

it carries fighting troops or war mattricl or supplies, and this

war riijlit h v. ill hardly forgo for humanitarian reasons. The

use of railways is so important that they must be

regarded, in a country where active hostilities are going on, as

a specific means of warfare, and only secondarily as fulfilling the

>s of railways in peace-time. As I have said

128 WAR RIGHTS ON LAND CHAP.

before, Mn<-.inlat;mts HUM travrl l)\ train at th n ri.sk when
thnv i- uar in tin- land, ami tin- only practicable method
of ensuring their safety appears to be the sending ahead of
a herald-engine to test th< lm< .

Another suggestion of Professor Fillet's seems quite im-
dattruc- prftcticable and Utopian. He suggests that belligerents .should
undertake to regard a purely fictitious destruction of a rail-
road as equal to an actual destruction. 1 The idea is borrow. -d
from the practice in manoeuvres of marking a certain bridge as
destroyed or a certain railway as demolished, the opposing side
being bound in honour, on due notification, to abstain iV>m
Buzzati'a using the bridge or railway. The objection to the proposal is
tillir.'" the same as Professor Pillet himself makes to M. Buzzati's
proposal for the neutralisation of all international railway lines
and the formation of a second parallel line for strategic
purposes. 2 A belligerent would not respect the nominally-
wrecked or neutralised line, were it to his great advantag* to
make use of it. Yet another suggestion for the protection
f railways in war time is that of M. Stein, which would
charge neutral railway administrations with the commercial
> ploitations of a belligerent's railways. 8 The Institute of
International Law has considered and rejected this last proposal,
which is open to the objection that it would create an
impossible position for the neutrals working the lines (even
supposing that their neutrality was recognised at all) in actual
practice and lead inevitably to endless friction between the

ious Governments concerned.

Deatruc- War material and army supplies generally ; property situated
m?liury on tne anticipated field of battle or in the zone of actual
buildings, fighting; railways, telegraphs, etc., which are used by the
enemy for his operations ; all these are, as I hope I have proved,
subject to destruction. I now come to a class of property
which has a less immediate connection with active warlike
operations ; such as barracks, military storehouses, factories, and
depdts, iron foundries and railway workshops which may be used
to supply the enemy's army. Barracks would evidently be
liable to destruction on the ground that depriving an army of its
shelter is a means of weakening its fighting efficiency. And

1 Pillet, op. cif. pp. 266 7. Ilnd. pp. '266-7. ' H>i<l. pp. 2<;<) 7

iv MEANS OF INJURING THE ENEMY 129

tie houses used as a shelter by the enemy's troop* are
similarly liable, not as a punishm* led upon the owners

th.-r further me by the enemy. 1

llage near Sebastopol (Tchorgoun) was burnt by the French
u ith this object; it had practically been used as cantonments
by the Russians.* The destruction of the villages around Metx,
to which I have already referred (see p. 116, iupra) is another
instanoe of the same kind, though it may also be regarded as a
tactical measure. As to storehouses and depdts, their destruc-
tion would ordinarily appear to be legitimate only if it were
a necessary incident of the destruction of the military
stores they contained. The shelling of a commercial city
because it will not give up the government stores it contains tSJjoo
is an extreme and very doubtful exercise of a commander's
right of destruction In th. Crimean war the city of Odessa
was spared by the English fleet because it would have been
impossible to destroy the army stores it contained without
endangering the whole city. 8 Yet the commercial city of
Genitschi was shelled and terribly damaged because it would
not surrender the government stores. So too, was Taganrog. 4
If, as The Time* said at the time, it would have been regarded
as a barbarous outrage throughout Europe to have destroyed
the commercial city of Odessa, M on the pretext that its stores
supplied provisions to the Russian army/' it is difficult to see
how the shelling of the other towns can be approved. At
Genitschi a great amount of private property was destroyed ; at
Taganrog, the town itself was set on fire by the shells, many
non-combatants, including women and childen, are said to have
been killed, and the famous gardens were to a large extent
destroyed. 6 Seeing that Admiral Dundas dissuaded his French
colleague, Admiral Penaud, from bombarding Helsingfors
injury would be inflicted upon the inhabitants of the

> In an occwpied district, the owner* wwld be liable to
harbouring the enemy amount* to an act hostile to the occupying belligerent.
In the /?rtm o/ Building* B*r*l in South Africa, June, 1900, to January,
1901 (Cd. fiMK JMOIM, one finds a very great number of oa** in which
were burnt because the owner* harboured the Boat* on (nmeiMln

Ruawll, Crimea, p. 6.

* Nolan*. War Aya^M Rm~a, Vol. II. p. 618.

Ibid, pp. 340-*. Ibid, p Ibid. pp. 340-4;

1 30 WAR RIGHTS ON LAND CHAP.

town and the beautiful Cathedral might be damaged, 1 the
principle on which the allied navies destroyed, or refrained from
destroying, buildings which contained government stores, is
exceedingly hard to follow. There is an inconsequence about
their actions which stamps the shelling of Genitschi and
Taganrog as an unnecessary and therefore dubious operation of
war. When the Confederate General Van Dora captured
Holly Springs, the grand dcpdt for Sherman's advance against
Vicksburg, 20th December, 1862, he burnt the immense store-
houses filled with supplies and clothing and commissary stores,
and also the court-house and public buildings and large
warehouses, which were crammed ceiling-high with medical and
ordnance stores. "The explosion of one of the buildings, in
which was stored one hundred barrels of powder, knocked
down nearly all the houses on the south side of the square,"
and over two million dollars' worth of damage was done. 2 Van
Dorn's action was more justifiable than the Crimean precedents
in that he was pressed for time, with Grant's cavalry moving
against him; had he not destroyed the munitions and sup]>li< -
in the way he did, he might not have been able to destroy them
at all. 8 The Secession War is lamentably rich in instances of
the burning of inhabited cities by the belligerents. Richmond,
Columbia, Atlanta and Chambersburg were all burnt. On whom
the responsibility for the burning of the first two should rest
is an open question. 4 The destruction of Atlanta by Sherman

1 Nolan, op. tit. p. 400. I cannot agree with Professor Holland's general
statement that " In the Crimea War our cruisers were careful to abstain from
doing further damage than was involved in the confiscation or destruction of
stores and arms and provisions." (Studies in International Law, p. 98.) In
addition to the instances of Genitschi and Taganrog, see Russell, Crimea,
p. 450, as to the plundering of Ambalaki, and Nolan, op. cit. Vol. II.
pp. 396-7, as to the destruction of Fredericksham and Krotka.

9 Draper, op. cit. Vol. II, p. 320.

* As to the capture of Holly Springs, see Grant, Memoirs, pp. 266-7.

4 As to Richmond, General Fitzhugh Lee (nephew and cavalry commander
of R. E. Lee) states that the Confederate commander at Richmond, Ewell
(the brilliant Indian fighter, vegetarian, hypochondriac, magnificent horseman
iu spite of the handicap of a wooden leg, who fought for the Stars and Bars
from the first Bull Run to Sailor's Creek), had made arrangements to burn the
tobacco there whenever the evacuation of the city should render that necessary
to prevent it falling into the hands of the enemy. After the departure of the
southern troops the fire got beyond control. (General Lee of the Confederate
Army, p. 381.) See Draper, op. cit. VoL III, p. 617 ; Grant, Memoirs,

iv MEANS OF INJURING I! II ENEM^

\va> |.-lili.-r.if.- H-- .-..iiM M..! j.ir. :i .-in.--!! l-.s r. sj h.

required his full force for his march to the sea, and ha could
not afford to leave it, a fortified city, to be seised again
Hood, who lay in his rear, ready to pounce upon it th<* moment
it was evacuated by the Federals. All the inhabitant* had been
removed from the city I shall say more as to this in a later
chapter and it had been turned into a fot tress or ptaet
(famwi. 1 The destruction of such a place is justified by the
same military necessity which justifies the destruction of
war maUriii A commander has an undoubted right to destroy
such places if he cannot hold them and if they would otherwise
be used by the enemy. The burning of Chamberebui>
Pennsylvania, by the Secession General Jubal Early was a very
rent matter. The city was defenceless and undefended,
and Early s sole reason for the burning was the refusal of his
demand for a ransom of 600,000 dollars.* Three thousand non-
combatants were left without shelter or food.' The city was
not specialised for war, like Atlanta, and Early 's act was very
properly disapproved by General Lee, to whom it proved a great
shock/'

To destroy government property simply as a means of inti
ing monetary loss on the enemy is clearly improper, as not

p. 614. As to Columbia, General Wade Hampton (Confederate) charges
Sherman with having burnt it. (Cenlwy JfopostM, " Battle* and Leaden,"
VoL XXXIV, p. 941.) Sherman charges Wade Hampton with the re-
sponsibility and states specifically that the destruction was not deliberately
planned by the Federals. It was accidental, and in my judgment began
with the cotton which General Hampton's men had set fire to on tearing the
city (whether by his orders or not .. immaterial), which fire was partially
subdued early in the day by our men, but, when night came, the high wind
Canned it again into full blase, carried it against the frame-houses, which
1 .ke tinder, and soon spread beyond our control" (Memoir*. Vol. II.
pp.6-7.) Grant sppears undecided as to the matter (Memoir*, p. 687).
1 Grant, Memoir,, p. 552; Draper, op. cit. VoL 111, p. 390; Sherman,
V.I II pp. 111.89; Wood and Edmunds, Hittorj o/fAt Wmr i*
DWMAsfsjt ,,. ".<

Wood and Edmonds, op. cit. p. 421. Draper, op. c*. VoL III. p. 408.
excuse that it was burnt in retaliation for Hunter's devastation of the
Valley (sse H. A. White, If. M. Ue amd <JU tost** Cb/e*r<y ,
p. 408)appears to have been put forward subsequently as an attempt to justify
Karly.

Sheridan, Memoir*, VoL I, p. 460; Grant, Memoir*, pp. 087-8.

H A. White, op. c*. p. 408; General J. B. Gordon'.

D.m,

K 2

132 WAR RIGHTS ON LAND CHAP.

IHegiti- mded by the impcra ossities of war. Tin-

traction destruction of the Washington buildings in 1814 has already
ofGovcra- been mentioned. The sacking of Kertch in 1855 was equally
property, unnecessary and shameful. A building there which had origin-
ally been a Greek temple but had latterly been used as a museum,
and which contained priceless relics of the ancient civilisation
of the Bosphorus, was completely destroyed with all its contents.
u Not a single bit of anything ," says Sir William Russell, " that
could be broken or burnt any smaller had been exempt from
reduction by hammer or fire." On the white panel of the door
some unknown Frenchman or Russian traced in pencil an appeal
to the allies " not to make war on history. If you have the preten-
sion of being civilised nations, do not make war like barbarians."
Some of the finest houses in the town, including that of the
Governor, were similarly destroyed. 1 Flagrant cases of the
destruction of property without any military necessity occurred
in the Secession War. The Federal General Hunter destroyed
the Virginia Military Institute at Lexington and the separate
houses of the Professors. 2 " It will be difficult," says General
J. B. Gordon, " to find any rule of civilised warfare or any plea
of necessity which could justify General Hunter in the burning
of these buildings." 8 The destruction of the Strasburg
library in 1870 was not deliberate, being an incident of the
bombardment of the city ; with this I shall deal again later.
De*truc- The war right to destroy war material and army supplies
factories an( ^ stores generally must logically carry with it the right to
foundries, seize or destroy factories and foundries, which would, if not
'' hi-ld or rendered useless, continue to supply the enemy with
the means of carrying on his war. Were England invaded, it is
very certain that the Ordnance Factories at Woolwich and the
Small Arms Factory at Enfield would either be held by the
enemy for his own purposes, or else wrecked and rendered use-
less; and the same fate would befall such works as those of
Armstrong Whitworth, or Vickers-Maxim, whose shareholders
would, however, have a claim to compensation at the end of the
war. Railway workshops and foundries, too, would be liable to

1 Russell, Crimea, pp. 459-60.

Captain R. E. Lee, Recollection and Letter* of General R. E. Lee, p. 234 ;
H. A. White, R. E. Lee, p. 437.

* General J. B. Gordon, Reminiscence*, p. 902.

MS OF INJURING THE ENEMY 133

destruction for analogous reasons. Under Grant's orders,
Sherman destroyed Jackson, Mississippi, - as a railroad centre
and manufacturing city of military supplies." l The arsenal, a
and a cotton factory belonging to the Messrs. Green,
which, when captured, was weaving tent cloth marked " C&A."
(Confederate States Army), were burnt* When Colombia
surrendered in February 1865, Sherman gave General O. O.
Howard written orders to destroy absolutely all arsenals and
public depdts and machinery useful in war to the enemy, but
to spare all dwelling*, colleges, schools, asylums, and harmless

tte property.* In the Crimean War, the allies blew up an
ii'lry, storehouses, and grain magazines at Kertch. 4

idan burnt tin mills and granaries in the Shanandoah
Vail- \. I it his report he said :

I hare destroyed over 2000 barns filled with wheat, and hay,

and farming implements, over 70 mills filled with flour and wheat ;

ive driven in front of the army over 4000 head of stock, have

killed and issued to the troops not less than 3000 sheep. A large

number of horses has also been obtained. *

A brilliant American historian, by no means partial to th<
Confederate cause, has condemned the burning of the mills and
fanning implements in the Valley, u for that was to inflict
vengeance upon the country for many years to come." 4 But
the propriety of tho devastation depend* on factors other than
tho*' in. niioned by Swinton. The Valley a veritable Old-
Testament Valley, standing so thick with com that it seemed
to laugh and sing 7 had long furnished supplies to the
Secessionist armies from the surplusage of its crops. Since the
early days of the war, when Stonewall Jackson manoeuvred the
five senses out of as many Union Generals there * and made
the name of the Valley famous for ever in war, its configuration
and fertility had rendered it a continual source of menace to
Washington, lying as it did in the most direct path of advance

1 Grant, Memoir*, p. 896.

* Grant, toe. <*. ; Shaman, Mtmoir* VoL I, pp. 321-2.

Draper, op. c*. VoL I II, p. 549.

RuawU, Orimm, p. 467. * Draper, op. e* VoL III, p. 411.

vrinlon, CbmpMpu o/UU Army o/UU PotoMC, p. 560.
' A* to the fertility of the Valley before 1664, eee Gordon,

9 Banks, Shield*, Milroy, Fremont, and MoDowelL

'34

WAR RIGHTS ON LAND

CHAP.

Grant's

onl.-rs a'

to the

MH-M.UI-
doah.

towards the Federal capital and holding out a promise of
ample food supplies for the southern troops in their raids. 1 It
was, in fact, a military storehouse of supplies for the
Secessionists, and if the overcoming of the hostile forces
demanded that its granaries and mills should be burnt and its
crops destroyed, the action which Grant and Sheridan approved
must be judged consonant to the usages of war. It is this
consideration the crippling of Lee's army which justifies the
devastation and not, as some writers have thought, the fact
that its inhabitants were bitterly hostile to the Union
Government, 2 or that the devastation caused widespread
desertion in Lee's army (largely recruited from the Shenandoah)
because " the duty which a man owed to his starving family
proved in many cases stronger even than his patriotism." 8
That the two latter motives were not those which led the
Federal authorities to order the devastation is amply proved by
Grant's and Sheridan's instructions. The orders on the subject
which Grant gave to Hunter and which Hunter turned over to
his successor, Sheridan, were as follows :

Headquarters in the Field,

Monocacy Bridge, Md.,

August 5, 1864.

. In pushing up the Shenandoah Valley, as it is expected you
will have to go first or last, it is desirable that nothing should be
left to invite the enemy to return. Take all provisions, forage, and
stock wanted for the use of your command. Such as cannot be
consumed, destroy. It is not desirable that the buildings should
be destroyed they should rather be protected, but the people
should be informed that so long as an army can subsist among them,
recurrences of these raids must be expected, and we are determined
to stop them at all hazards . . .

Very respectfully,

U. 8. GRANT, Lt. Gen. 4

1 The Valley was of great importance to the Confederates as a line of
invasion, bat of practically none to the Federals, for it lay south-west to
north-east, and so would lead away from Richmond (Wood and Edmunds,
op. til. p. 426, from "Battles and Leaders").

* Draper, op. cit. Vol. Ill, p. 411.

1 Wood and Edmunds, op. cit. p. 441. On the general question of the
destruction of an enemy's food supplies, see also the quotations from General
Maurice and General Halleck on p. 196, infra.

4 Sheridan, Memoir*, Vol. I, pp. 464-5.

MEANS OF INJURING THE ENEMY 135

Again, on 26th August 1864, Grant wrote to Sheridan, from

I'niiit :

Do all the damage to rsilrosds and crops you ean. Carry off
stock of sJl descriptions and negroes, so as to prevent farther
If the war is to last another year, we want the Shenandoah
Valley to remain a barren waste, 1

Sheridan instructed his cavalry commander, Brigadier-
Qeneral A. T. A. Torbert, that officers in charge of this orders,
delicate but necessary duty [tho devastation] must inform the
people that the object is to make this valley untenable for
raiding parties of tho rebel army." 1 When Sheridan had
finished with the valley, " a crow flying across it would have
had to carry its own rations." * So thoroughly did he
perform his task that one is inclined to credit him with a
special aptitude for such work inherited from some Cavan
ancestor who served long ago with u Morrogh of the Burnings."

Sherman's devastation of Georgia and the Carolina* is Devaeta-
justifiable on the same principles as Sheridan's devastation
the Shenandoah. His destruction of mills, granaries, and crops and
paralysed Lee's army. That army " lived for months on less
than one-third rations. It was demoralised, not by the enemy
in.nt. hut by the enemy in Georgia and the Carolina*." 4
Horses, cattle, waggons, sheep, hogs, turkeys, etc., were seized
by Sherman's troops. As to horses, he ordered great numbers
to be shot " because of the demoralising effect on our infantry

Sheridan, Memoir,, Vol. I, p. 486.

Mi. p. 48*

* Fiuhngh Lee, op. ri/. p. 353. He ascribes the phrase to Sheridan.

Words of ColoielAnd>er Anderson, at the imveiling of the IxMooiun
ohmond, Va., 80th May, 1800 (Captain R. B. Lee, op. dt, p. 148).
I! A. White in hi* R. B. Lee and tJu Sortktm Cbn/Wmiry, pp. 334-4, tells
a good tale to illustrate the condition of the ness commissariat in Lee's Army
toward, the close of the struggle. U is stated that some officers ones osjne
to dine in General Lee's tent The fare set before then was only a plate of
hoiled cabbage ; in the eentre of the dish rested a diminutive slice of bacon.
With knife well poised above this norsel. General Lee invited each guest in
turn to receive a portion. The neat remained oa the plate untouched;
hunger was appeased with cabbage. On the following day. General Lee called
again for the bit of swine-flesh, but his coloured servant, with many hows,
gave the i nf omation that the bacon had been borrowed to grace the
board the day before, and had been already returned to the owner."

i 3 6 WAR RIGHTS ON LAND CHAP.

of having too many men mounted" 1 The ."broad swathe"
which Sherman cut through the southern States was as mu< h
a blow at the efficiency of the Confederate forces as if he had
captured and burnt their commissary store depdts or seized
Dcvasu- their remounts. A somewhat similar condition of things
Si !^ 6 existed in the Transvaal in 1900-2. The Boers, like the
public*. Secessionists, had no regular military supply depots and
depended for their food on the mills, gran.in* s and
scattered through the country. Before the necessities of war
respect for private property had to go to the wall. Pietersburg
in the northern Transvaal was the last regular source of
supplies the Boers had. When Plumer captured it, in the
spring of 1901, he destroyed four flour mills, a repairing shop,
and the plants of two newspapers. 2 General Blood's operations
against Ben Viljoen about the same time resulted in the burn-
ing of many mills and granaries. 8 The policy of devastation
had been resolved upon before Lord Roberts relinquished the
chief command to Lord Kitchener towards the end of 1900, 4 but
the latter carried it out with a systematic thoroughness that
has seemed like barbarity to some but was amply warranted
by the peculiar nature of the war. In January, 1901, Kitchener
issued instructions to the columns to clear the country of
supplies, horses, cattle, crops, transport vehicles, and non-
combatant families. The latter were despatched to the Con-
centration Camps. " Supplies, waggons, and standing crops, if
they could not be used, were to be burnt. Bakeries and mills
were to be destroyed." 6 In his memorandum of 21st December,
1900, to his generals, Lord Kitchener remarked that the policy
of removing the women and children from the farms had been
prompted by the desire, not only to protect them, but to
prevent the combatant Boers finding a source of supply in the
farms. It was, he said, " the only effective method of limiting

1 Sherman, Memoirs, Vol. II, p. 209.

Times History, VoL V, pp. 196, 203. Ibid. p. 215.

4 Already in August, 1900, Lord Robert* had issued instructions to General
Officers Commanding Columns in the Orange River Colony and Transvaal, in
which he said : " Whilst giving protection to loyal inhabitants in his district,
the General Officer Commanding will see that the country is so denuded of
forage and supplies that no means of subsistence is left to any commando
attempting to make incursions therein." (Times History, Vol. IV, p. 488.)

Ibid. VoL V, p. 1

iv MEANS OF INJURING THE ENEMY 137

ndurance of the guerillas, as the men and women left on
farm willing d the Burghers, if loyal, dare

refuse to do so." > In the official JUlum tf Building* BunU
one may find the record of the destruction of farms in the two
Boer EUpobtio* Mostly the " reason for dosti is given

as " laying waste country used as base by enemy " : in some
oases it is specially stated also that the bouse had been used

he combatant Boers, either as a shelter or as a stronghold,
lay waste the Doornberg district " accounts for a
considerable number of farms burnt in September, 1900. Two
houses north of Pretoria were destroyed, respectively, on
accot. baking for and generally providing for parties of

the enemy" and being "suspected on good information of
harbouring and feeding Boere." 1 The policy of devastation
was justified by its results. The Boer delegates who met at
Vereeniging on 15th May, 1902, to consider the question of
surrender, recognised that the want of cattle and grain in
various districts especially Fauresmith, Bet hu lie, Hoops tad,
Kroonstad, and Heilbron made the continuation of the
struggle an impossibility. T M districts in the Transvaal were
declared " unable to fight any more." General Botha remarked,
me is coming when we shall be compelled to say,
1 1 MM-- T drives me to surrender/ " and General de la Rey added
that starvation would compel some parts of the country to give
up the struggle. 1 Towards the end of the war, much of tho
Eastern Transvaal once a land of plenty was a " blackened
desert" " Not a beast, not a field of standing com, not a
native was left. Some trampled mealie fields, offering a
niggardly harvest to very careful gleaners, were the only signs
Even the burning of the farms an act of devasta-
t>eyond the precedents of the Secession War

TimtM //irfory, VoL V, p. 86.

See the Atftjm tf BmUmg* Am*, June, 1000, to January, 1001 (Cd. flM),

See the fuD aoooont ol the V ereeoiging meeting in De Wet's Tknt Tmn
for, Appendix A. pp. 408-99.

7Ye //Mtory, VoL V, pp. Ml-2. The Kaffir krmak w empUd Inm
and the burgher* were generally able to obtain food from them
p. 254). Many Boers who were "oat" in the war have told me that
were always able to get mealies Cram the torea of the natives, and
plentiful. *

i 3 8 WAR RIGHTS ON LAND CHAP.

was justified by the military necessity of depriving the vagrant
guerillas of shelter. A study of the history of the war \\ill
convince any impartial reader that there was no way of ending
the struggle but that which the British commanders followed.
It is absurd to prejudge the whole question by talking of
ih, methods of barbarism. The United States and Great

Britain are civilised enough to be able to disregard such taunts
as that. There is no rigid war law which forbids a belligcr.ni
to seize or destroy provisions (or other property) in possession
of private enemy inhabitants, to prevent the combatant enemy
making future use of them. 1 If there is a war right to destroy
the enemy's food supplies, and if, under such peculiar conditions
as existed in the Confederate States and in South Africa, the
course of events has brought it about that the enemy depends
for his supplies on the surplus of cereals, etc., held by the non-
combatant population, then a commander is justified by the
necessities of war in destroying or seizing that surplus. And
he is equally justified in burning houses which have become, in
all but name, shelter-tents or barracks. He should, however,
make some provision for the sustenance of the people whose
property he destroys. 2 Such provision was made by Great
Britain in the shape of the Concentration Camps ; and it must
be remembered that the Boer farmers were well compensated
for the destruction of their farms and crops at the close of the
war. The magic word " compensate " has a rich and joyous
sound even to-day in the Burgher's ear. Sherman instructed
his subordinate commanders in October, 1863, to carry off
horses, mules, waggons, forage etc., in districts which were
infested by guerillas. 8 Grant has a passage on the subject

1 The existence of such a law is affirmed by Dr. Oppenheim, International
Law, Vol. II, p. 152.

' See Professor Holland, Laws and Customs of War (Official), p. 4.

* Bowman and Irwin, Sherman and His Campaigns, p. 134. Dr. Lawrence
says (International Law, p. 442) that " few would care to rest the fame of
Sherman and Sheridan upon their devastations in Georgia, S. Carolina, and
the Shenandoah Valley, though it was alleged in their favour that they
destroyed the storehouse and granary of the Confederacy." One hesitates to
point out to so high an authority that the question is not one of the fame of
the two great Federal commanders, but the right or wrong, juristically, of
their devastation ; for, obviously, a devastation may be legally unimpeach-
able and may yet damage a commander's reputation, just as a badly conducted
campaign may.

iv MEANS OF INJURING I Ml ENEMY 139

ma Hound statement of the war law applying in
uch circumstances ai obtained in 1862-5 and 1900-2.

After thw l [be says] I regarded it a* bmnaoe to both tides to Grant',
protect the persons of those found at their homes, but to
everything that could be uied Co support or supply armies.

Protection was still continued over such supplies at

M thr lines held by us and which we expected to continue to
hold ; but such supplies within the reach of Confederate
I regarded as much contraband as arms or

I believe," he says, "exercised a material
iii h:i>t-iimg the end. 1 *
The jest of the Yankee soldier who declared that " the
rebellion must be suppressed if it takes the last chicken of the
Confederacy," 1 was really not very far from being a correct
statement of the war law of destruction of supplies. Inter-
ference with the proprietorial rights of non-combatants is not
to be lightly undertaken in modern war ; but those rights are
not more inviolable, and, in practice, are much less easily
eable, than the right of a belligerent to overcome his foe ;
and if the latter draws the means of continuing his resistance,
not from regular army depots, but from private property and
lies, the enemy cannot be bound by the fetish of a phrase
to extend the privilege which is granted to private property to
what is actually a means of war. The devastations of the UnjasHsV
Secession and Anglo- Boer wars are, as a matter of fact, much J^J^
less objectionable, from the point of view of war law, than the in the
destruction of the property of the poor Russian fishermen in war*"
the Crimean War, about which much less has been written.
Fish-stores, fisheries, timber, spars, nets, boats, and even the
homesteads of the fishers, were destroyed by the English
cruisers in the sea of Azoff. 4 It can hardly be maintained
that th< ruining of these poor peasants was essential to the
defeat of the Russian Army. The latter army no more went
uaive diet of turbot and mackerel than the English
did for one of barrelled herrings. Professor de Martens,
without some justification, uses the destruction sanctioned

1 /.. after the battle of Shilob, 7th April, 1862.

* Grant, JVeMotr*. pp. 218-9. A* p. fit*.

Nolan, op. e* Vot U, pp. MO, IBS, 74, 598.

I 4 o WAR RIGHTS ON LAND CHAP.

by the English Government in 1854-5 to support his argument
that " England has never been scrupulous in her choice of
means of damaging the enemy." >

The bearing of paragraph (h) of Article XXIII is extrenu ly
difficult to follow. As I have said in the Chapter on the
Commencement of Hostilities, one of the effects of war is to
suspend non-hostile relations between the subjects of tho
belligerent States. 2 "The rule is one," says Hall, "which
must hold in strict law so far as no exception has been
established by usage. Logically it implies the cessation of
existing intercourse .... a disability on the part of the
subjects of a belligerent to sue or be sued in the courts of the
other, and finally, a prohibition of fresh trading or other inter-
course, and of every species of private contracts." He goes on
to say that the mitigations of this rule which have taken place
" have generally been either too distinctly dictated by the self-
interest of the moment alone, or have been too little supported
by usage to constitute established exceptions." 8 It is in-
conceivable to me that the Hague delegates can have meant
to abrogate this general rule, which is at all events an
established maxim of jurisprudence in England and the
United States, by a provision in a Rlglemeni intended for the
instruction of troops in war. Yet the terms of Article XX III (h)
are quite general and definite. Taken as they stand, they are
a clear denial of Lord Stowell's famous decision that an alien
enemy has no persona standi in judido. Professor Holland
very properly holds that, if this be the intention of the
paragraph, "it can hardly, till its policy has been seriously
discussed, be treated as a rule of International Law." 4 He
suggests but himself inclines to the more general interpreta-
tion that the clause may have been intended for the guidance
of an invading commander, i.e. that it prescribes a line to be
followed in governing and administering an invaded or occupied
A pottible territory. Herein I imagine lies the explanation of this locus
The report of the Committee states that the

1 Le Paix et la Guerre, p. 107.

* See p. 26 mtpra. See also the many authorities quoted by Hall,
International Law, p. 388. ' Ibid. pp. 387-8.

4 Law of War on Land (1908), p. 44.

iv MEANS OF INJURING THE ENEMY 141

provision was adopted unanimously, being considered "as
specifying in very happy terms one of the consequences of the

principle.** admitted in 1899." l Now tho principles admitted
in 1899 are principles bearing on the relations of invading or
occupying armies and the enemy inhabitants and their property.
Nothing else can be meant: for apart from these, the tn
conference admitted no principles modifying the ordinary rule
of war law which presumes a suspension of friendly relations
between the inhabitants of warring countries. The contem-
porary Timts reports of the work of the Conference show that
the German military delegate proposed " that the inviolability
which the existing Convention secures for private proj* rty
should be extended to contracts, and that the exigencies of
military occupation should not furnish sufficient reasoi
annulling these." 1 "The Committee," we are told later on,
"adopted unanimously without a vote a German proposal
iiM]>oeing upon belligerents tho duty to respect contractual
obligations in an enemy's country" 1 Clearly I think tin*
German proposal referred to in these two extracts is
the present act XXIII (A.) As I shall show later on, the
Conference of 1907 transposed the original (but amended)
Article XLIV from the section dealing with "Military
Authority over the Territory of a Hostile State" to the
* section dealing with M Hostilities," where it now appears as
the final paragraph of Article XXIII : their object being to
give it a more general application than it might have appeared
to possess if left in the chapter which primarily deals with
occupation. Something similar, I think, happened in the case
of Article \\lll i k). It was drafted, proposed, and adopted
with reference to the case of invasion or occupation, and its
ntion was solely to extend to local contracts and rights of
action those privileges which the former Rlglcment had
ided for the property of the inhabitants. Then, in order
ioke its application more general, it was removed from its
>er place the section dealing with "Military Auth*

titc. and inserted in the chapter on " Hostilities " ; and when
he transposition was made, the wording of the paragraph was
Hague II. B.B (A.), p. 104. Tim**, 4 July, 1907.

' Ibid. I August, 1907.

i 4 2 WAR RIGHTS ON LAND CHAP.

modified to harmonise it with its new surroundings and to
generalise it, too. It is to be hoped that the next Confer
may reconsider the provision and set at rest the doubts \vlm-h
certainly exist at present as to its force and significance.

The final paragraph of Article XXIII is an amendment,

not be do- made at the Hague Conference of 1907, of the Rtglemcnt of

gj^" 1 1899. It relieves " enemy nationals " of the odious duty of

enemy serving against their own country, even if they form part of

*** the opposing country's army. One may wonder, perhaps, that

such a provision should have been inserted in an International

agreement* Beeing that it tn-m-ln-s mi a matter of jnnvly

internal sovereignty, so far as concerns the important part of

the provision, namely, the exemption of enrolled aliens fnm

bearing arms against their country of origin. Non-combatant

inhabitants were sufficiently exempted from such service even

before this addition was made by the former Article XLIV

(1899 Htglement), which reads :

Any compulsion of the population of an occupied territory to
take part in military operations against their own country is
prohibited.

This provision is made more general in the new regulation,
which adds the important clause relating to enemy nationals
serving as soldiers. Bluntschli long ago laid down the rule, by
no means invariably adhered to, that, " Aliens cannot be com-
pelled to perform military service," except when it is " necessary
to defend a locality against brigands or savages." 1 "If," he
says, " they were forced to serve under the flag of another state,
they might have to shed their blood for a cause which is
indifferent to them, or for interests opposed to those of their
fatherland." In any political war i.e. in effect any civilised
war he held that they could not legitimately be called to
arms. Another, perhaps more practical, reason for exempting
them from serving against their country of origin is to be found
in the consideration that the state which employs them as
soldiers is forcing them to commit treason. 2 If the provision

1 BlunUchli, Droit International CodW, sec. 391.

* "The only exception to this rule" [i.e. that persons enrolled in the
enemy's fighting forces are enemies to the fullest extent] "occurs when a
state finds subjects of iU own fighting against it in the ranks of its foes. In

iv MKANS OF INJURING THE ENEMY 143

i 'J07 in complied with, aa no doubt it will be, there will no
longer be any uncertainty aa to whether men who bear anna
against their fatherland have acted of their free will and with
th.-ir aysj "JH ii. ..i MH.I.-I oompnWoa Thai ralpsjldit) iriD
IM- .--t .ii.ii-h. 'i The rule if SAB iadt)em%Msjt, todvateifa
freedom Th.- ^-^'ii - ! >! - * : na pMfl : ml M i.
made impoaaible a revival of the old practice of incorporating in

torious army the army of the defeated belligerent. When
Frederick the Great overwhelmed Saxony in the Seven Yeara
War, " seventeen thousand men who had been in the camp of

\ were half compelled, half persuaded, to enliat under the
conqueror 1 was a common practice for an invader to levy
recruits in his enemy's territory. 1 An occupied country ^as
treated as part and parcel of the occupying belligerent's
dominions, and he 'exercised therein the full rights of sovereignty.
The new conception of occupation (a conception approved at
the Hague) as a state of fact, a mere incident of warfare, which
in no wise transfers allegiance, entails as a necessary con-
sequence the abandonment by the occupying belligerent of all
acts of sovereignty in his enemy's territory, and especially the
raising of recruits therein. One wonders how recruits so
obtained could ever have proved very reliable troops under their
new Bag. With the passing of mercenary armies, and the
general advance of liberalism and civilisation, Frederick's

im that it is a commander's business to supplement his
army by pressing men in an enemy's country* has become a
mere archaeological curiosity. The spirit of modernity condemns

>t less than the letter of the Hague regulation. Apart
from other considerations, the provision of 1907 is of benefit to
the belligerent whose righto it limits. There are obvious dis-
advantages to an army in the field in having enemy nationals

such a case it would hare the right, should it capture (bam, to execute then
a* traitors, instead of treating them as prisoners of war." (Lawrence, /ttr.
a<Kma/Law,p.31fi.) BOOM state*- .o. Greet Britain ainos the Naturaliaa*
tioo Act of 1870, regard the aeramptkm of ciUMoahip of another tUU M
diverting the person concerned of his former ctttoeoahip completely and for
all purposes. Others hold that their former dtiMoa, naturalised tbroad, are
still liable to punishment with death if they bear arms against their
of origin (Aid. pp. 196-7).

1 liaoaulay, JRitey o JWsr** Ife 0rrt.

See HaU, /atemo^mol La, pp. 461-1, * Ibid. p.

i 4 4 WAR RIGHTS ON LAND CHAP.

in its ranks, fighting, not voluntarily, but under oompulrioii,
against their ..\vn kith and kin. When, in 1897, a law wa> pro-
posed in Belgium to compel alien residents to serve in the curio
guard, the protests of Great Britain, the United States, and
France led to its renunciation by the Belgian Government.
" The proposed law," say M. Bonfils, " was not without danger to
Belgium herself; at Antwerp the German colony is so numerous
that the law would have led to the militia being largely com-
posed of German subjects." 1 The danger of an intermixture
of possibly disloyal elements with the national forces is met to
some degree in the case of the British army by the provision of
the Army Act [section 95 (1)] which allows the enlistment of
aliens only in the proportion of one to fifty British subjects in
any corps of the regular army. 2

Volun- It is to be noted that the final paragraph of Article XXIII
service of o n ty forbids compulsion to serve in the enemy's army. The

acceptance of voluntary service is in no wise prohibited,
maybe The man who volunteers to fight against his native land
ooe P ted - commits the penal offence of treason against the latter, but
the belligerent who accepts his services breaks no war law.
It may indeed be a nice question when compulsion begins
Irregular and free-will ends. For instance, the Boers who invaded
action in northern Cape Colony, British Bechuanaland, and Griqua-
1899-1900. land West in 1899-1900, though they did not actually
take unwilling recruits with them on command, adopted
a line of conduct that amounted to compulsion. They did
not say to any British subject, " Join us, or we'll compel you to
do so " ; but they said, in effect, " Join us, or we'll drive you
from your home and commandeer your goods." After the
annexation of the Cape Colony districts held by the invading
Boers, " wavering burghers were impelled to take up arms by
being told that to do so was their obligation as Transvaal or
Free State burghers." 8 The Colesburg, Aliwal, Albert and
Barkly East districts were subjected to the Boer commando
law. 4 Those who refused to rebel were in some cases taken

1 Bonfils, op. cU. sec. 445, note.
9 See Manual of Military Law, 1907, pp. 189, 358.
* Times History, Vol. II, p. 273.

4 Maurice, Official History, VoL I, p. 275 ; Lawrence, International Law,
p. 345, note.

MEANS OF INJURING THE ENEMY 145

prisoners to Pretoria; other* were expelled and tent to

h Im.", 1 In Bechuanaland and Oriqualand West, M a
great number of loyalist** were driven out and (breed to trek
south, undergoing many hardships and much worrying from
Boer officials, before they reached Lord M ethuen's lines on the
Modder River." ' Mr. Schrciner, the Premier of Cape Colony
and a Boer sympathiser, protested vigorously to President
Steyn against the action of the Boer commandant* in " sum-
in. .11 ing the English residents to arms under pain of expulsion
or confiscation of their goods." * Lord Roberts also protested

l.-tter dated 5th February, 1900, and stated his opinion
that it was " barbarous to attempt to force men to take sides
against their own Sovereign and country by threats of spolia-

md expulsion/' 4 The British military authorities adopted
a much more correct attitude when the Boer Republics were oc-
<!. In December, 1900, a Burgher "Peace Committee"
was formed from among the surrendered influential Boers who
had taken the oath of allegiance a purely voluntary oath. In
September of the following year the members of this committee
" offered to fight on the British side and to raise levies from
among their surrendered countrymen for the same purpose."
Lord Kitchener readily agreed, and the result was the forma-

of the "National Scouts" in the Transvaal and the
" Orange River Colony Volunteers " in the sister colony. 4 The

>nal Scouts were unofficially promised certain special ad-
vantages in the settlement of the land at the end of the war,
and their families were given preferential treatment in the
Concentration Camps, but there was no pressure brought to
bear upon them to join the organisation. The employment of

auxiliaries may have been a mistake of policy, as embit-
tering the commando Boers and prolonging their resistance,
but it was quite unobjectionable from the standpoint of war
law. The National Scouts were traitors in the eyes of their late
comrades and there is no doubt, although official confirmation
is lacking, that many of them were shot when captured by De

1 7YMfl JKrfory, VoL III, p. 86. f IHd. Vol. II, p. 7.

.x 146-6.

, Vol. V, pp. 405-7. The Netiooel SoooU " numbered
1,480 and th " O.RC. VolunUen" 480, by the end of the wr.

146 WAR RIGHTS ON LAND CHAP.

Wet and othT cnmnmnctanti 1 and properly so. But Lord
Kitchener was quite within his right in taking advantage of
the help which they proffered, freely, and with ;i lull knowledge
of the risk.

Conventional war law contains no prohibition of incitement
mentto j^ disloyalty. There is, however, a usage of war which em-
loyalty, powers a commander to deal summarily with any enemy person,
combatant or non-combatant, attempting to seduce his troops
or the inhabitants of his country from their duty and allegiance,
but whether this usage is merely the expression of an obvious
requirement of self- protection (like the punishment of spying),
or amounts to a prohibition of any attempt to tamper with the
loyalty of the hostile army or population, is a question that is
open to doubt The evidence is in favour of the former view.
An instance of the summary punishment to which I refer is
found in the case of Mr. Meyer De Kock, of Belfast, Transvaal,
who rode into Viljoen's lines in January, 1901, with the object of
inducing the Burghers to surrender ; he was tried by Court-
Martial and executed As The Times historian remarks, the
execution was quite justified, for he tried to seduce men on
commando, knowing the risk he ran. 2 About the same time,
three other members of the Burgher Peace Committee arrived
in De Wet's camp at Lindley, Orange River Colony, on a
>nnilar errand; one, a British subject, is said to have been
shot, the others were flogged. Professor Despagnet correctly
observes that, if these emissaries came as agents of the enemy,
" their execution, though cruel, would have been in accordance
with the laws of war sanctioned by all civilised countries." 8
Whether established usage goes beyond allowing the menaced
belligerent to protect himself as the Boers did in these cases,
and actually prohibits a commander from any attempt to
damage his enemy by provoking disloyalty in the hostile camp
or country, is a question on which the jurists are at variance.
The official manuals are silent on the point. Professor Despagnet
states that " appeals to treason, defection, or desertion, especially
under promise of recompense or preferential treatment, addressed
1 Some of the National Scouts were very wealthy men. I have it on
unimpeachable authority that one who was captured with five others by Chris
Botha, offered 80,000 if his life was spared. The six were shot.
Timu Hiitory, VoL V, p. 93. Despagnet, op. cit., p. 308.

iv MEANS OF INJURING I Hi ENEMY 147

hostile country, are generally considered reprehensible." 1
lUchli would allow a belligerent not only to foster the re-
bellion of a party in a hostile State for whose sake be has gone
to war (.*/. the Cubans in the Spanish-American War), but to
encourage a party with whom ho is in sympathy to revolt 1
h a principle as this would have justified the Boer delegates
in organising an English revolution, in conjunction with the
extreme Radicals and Pro-Boers, as a diversion and legitimate
measure of defence, in 1899-1902. One cannot but feel that
even austerely judicial England would have given short shrift
to the men who tried to do that " It is, however," Bluntschli
adds, " considered contrary to the laws of honour to incite the
officers or soldiers of the hostile State to treason ; States have
such an interest in the maintenance of military discipline that
political considerations can hardly justify such a step." 1 Pro-
fessor Fillet, on the other hand, allows incitement of the
adversary's forces to treason, but condemns the same action
when the civil population is concerned " Incitement to revolt/'
he says, M is an attempt upon the very life of the hostile State,
and this attempt, not being justified by necessity, becomes an
iction of the law of nations." 4 One cannot lay down any
definite rule on the subject, but it is quite certain that belli-
gerents, however they may condemn incitement of the enemy
troops to treason as an academic question, have frequ.
adopted a procedure which virtually amounts to the same thing.
The bogus French newspaper which the Germans issued during
their occupation in 1870-1, and which told of the great defeats
of " our" troops (i.e. the French) and the glorious victories of
the "enemy" (Germans), 6 were really aimed at undermining
the moral of th< Kivnch soldiers and inducing them to give up
the struggle. When the Prussian commander sent into MeU
prisoners who had been taken at Sedan, his object was the
6 They were meant to confirm the tidings of the great

1 Ibid. MO. fi*4.

He quote* AuthoritiM in rapport of

_ Of). Cft. p. 1 I I

BlunUchli, op, e*. Ma 5*
PUlet, op. c* pp. W-S,

1 !'.;< r. / i . |

<*.p.,

IIW, Vol. II, p. 101.

L 2

148 WAR RIGHTS ON LAND CHAP.

disaster and to prove to their comrades in Bazaine's army the
folly of further resistance. The Japanese adopted a el,
istically ingenious and modern device to achieve the same < mi
at the last siege of Port Arthur. They used a wooden mortar
to launch within the enemy's lines postcards describing the
happy lot of the Russian prisoners of war in Japan. 1 The
Anglo-Boer war furnishes the most striking instance of an
appeal addressed by one belligerent to the other's troops to
desert their country's cause. This is the appeal contained in
the Proclamations of 15th March and 31st May, 1900, addressed
respectively " To the Burghers of the Orange Free State " and
"To tin- Inhabitants of the South African Republic," informing
them that if " they lay down their arms at once and bind them-
selves by oath to abstain from further participation in the war/'
they " will be given passes to allow them to return to their
homes and will not be made prisoners of war, nor will their
property be taken from them." 2 There can, I think, be no
question but that this was an incitement to disloyalty ; a sum-
mons to surrender would have taken the form of a despatch to
the Boer commandants, not of a widely distributed Proclama-
tion. It promised preferential treatment to such Burghers
as would desert. Was it a breach of war law to issue these
Proclamations? Professor Despagnet replies in the affirma-
tive, 8 but then he prejudges the whole question by assuming the
illegitimacy of any such incitement to defection, and his pre-
mises may be questioned. A belligerent has an admitted right

1 Ariga, op. cit. p. 265.

Proclamations of P.M. Lord Roberts (Cd. 426, 1900), pp. 3, 7. At
Mafeking, General (then Colonel) Baden-Powell sent an amusing and
characteristic message to the Boers who were besieging the town, " offering
the Burghers a free pardon if they would return to their homes before he made
up his mind to invade their country." Snyman protested formally against
the message as an attempt to tamper with his men, but the Burghers them-
selves took it in better part and sent Baden-Powell a letter saying that they
had expected better things of him " as a man of education and patriotism "
and exhorting him "to let his troops loose as soon as possible." (Time*
Hirtory, Vol. IV, p. 689). To invite troops of good moral to defection would
end, in nine cases out of ten, in a good-humoured snub, and in the tenth, in an
extremely short shrift.

* Despagnet, op. cit. pp. 114-5. He says "such invitations [to desert]
could not be approved on the part of belligerents in an international war,
such as was the war against the South African Republics."

iv MKANS OF INJURING THE ENEMY 149

to receive deserters from his enemy's army, 1 and be has also,
of course, the right to break up hw enemy's fighting organi-
sation by every means nut f.rtu<lden by war law. ! can

ve this latter object by placing before the hostile troops
the advantages they will gain from abandoning the straggle,

>bjcct of the war is attained without bloodshed, to the
benefit of all concerned. A cause cannot be worth fighting
ami must foil in the end, when its champions are liable to be
argued into deserting it No army which is well disciplined,
and which has its heart in the struggle, has anything to fear
from incitement to disloyalty. The etiquette of war may be
against such incitements, but they do not appear a whit more
dishonourable or underhand than the employment of mercenary
spies, \vhirh is admitted by usage. In practice, as I have shown,
belligerent* do attempt in various ways to influence the ho>
troops against their national cause, and it cannot be allowed
usage of war condemns the practice,

ni'-it. m. nt >f ;\ civil population to revolt against the incite-
tonal Government stands on a different footing. All l he"^jj
jurists admit that a 1>< lli^ ivnt has the right to take advantage Uon u>;
of a popular revolt in his enemy's country, but, as I have shown,
there is some difference of opinion as to whether he is in order
in exciting or encouraging it. " One must make a distinction,"
says Professor Le Fur, "between an tion or civil war

h has, and one which has not, been provoked by the en*

it he has not provoked it, he cannot be condemned for profiting

by an e\ hirh he is not responsible." * And he holds

properly, I think, that the United States Government was

i tied in accepting the aid of the Cuban insurgents in 1898.

reate a revolt is a different matter. Austria protested in

1859 against the French project of organising legions of Hun-

garian rebels against her, and again, in 1866, against Bismarck's

plan of forming a corps of Hungarian refugees, 1 France pro-

tested against the attempts made in 1870 by German agents to

op. e*. p. 97; Bonfila, op, oil, aec. 1105, who my* that a
commander baa the ryA/ to amd back deaarteci, but generally, in practice,
deaerten and refnjeet are not wot back."
* K.D.I. September October, 1896, p. 755.

. p. 114, DOte.

1 50 WAR RIGHTS ON LAND CHAP.

stir up a revolt in Algeria. 1 The modern principle of the
distinctive status of combatants and non-combatants supplies
a criterion for deciding the question. If a commander demands
that the civil inhabitants of a hostile country occupied by him
shall ivfniin from all participation in the war, he cannot fairly
or logically try to excite a revolt among those residing in the
terrritory occupied by their own troops and administered by
their national Government. To demand quiescence of the in-
habitants in a province he holds and to create a popular revolt
in a province still held by the enemy, is to deal with the whole.
matter on the principle of " Heads I win, Tails you lose ! " On
the whole it may be concluded that practice, as evidenced by
the protests 2 of 1859, 1866, and 1870, referred to above, and
considerations of reason and equity, are against allowing a
commander to incite insurrection ; in other words, incitement of
this kind may be held to be a breach of the usages of war and,
as such, to warrant the aggrieved belligerent demanding its
discontinuance and rectification, or, in the last resort, adopting
reprisals.

Meaning A belligerent is forbidden to force the enemy's nationals " &
" taking prendre part aux operations de guerre dirige*es contre leur pays."
part in the To this provision, the Austrian delegate at the Hague Con-
ference of 1907 wished to add the words " as combatants," but
the proposal was rejected. 8 How far then does the prohibition
go? It evidently means more than that a citizen of an
invaded country is not to be forced to fight against his country-
men in the national armies. In 1870 the Germans were blamed
by a writer in the Quarterly for having forced the invaded to
do " military work." As to this Mr. Sutherland Edwards
remarks :

German The only military work that I know of the invaded having been
* orce( * to ^ * n ^' rance was on roads, where, after they had dug
' trenches and thrown up embankments for opposing the advance of

1 R.D.I. September-October, 1898, p. 755.

1 As evidence on disputed questions of war law, protests have more weight
than the practice against which they are raised. The practice is a thing of
the moment, perhaps an experiment to see if any protest will be raised. Tin-
protest is deliberate and is usually addressed to neutral nations, whose
sympathy is not likely to be gained by ungrounded or perverse objections to
proper acts of war. * Hague II B.B. (A), p. 102.

iv MEANS OF INJURING THE ENEMY 151

the invaders, they were employed in making these impediments dis-
appear ; and, far worse than that, on roads along which they ware
required to drive oarts laden with nhell oases, destined to be hurled
when filled upon their own countrymen. That was a legitimate
requirement according to the received mages of war; but it was
all the same, if it could possibly have been avoided, and was
at least an approach to the intolerable practice of improving the
invaded into the invaders' ranks. 1

\ were the German* at all disposed to allow their demands
he services of the French citizens to be treated casually
At Nancy they demanded the services of 500 French navvies for
the execution of some urgent work, and when these were not
immediately forthcoming, they caused the Mayor to issue the
following Proclamation :

If by to-morrow, Tuesday, 27th January (1871), at mid-day, 500
navvies are not present at the railway station, first the overseers,
and then a certain number of workmen, will be taken and shot on

tin- MH.t J

But if they made abundant use of the French civil population
as labourers, drivers, eta, they did not follow the bad precedent
set on one occasion at least in th< American War, of compelling
the inhabitants to construct fortifications. This was done at United
Knoxvill, . Tennessee, in 1863, by the Federal General Burn-
who stood a siege there against James Longstreet, the stern
fighter whom Lee called * his old war horse " and who settled
down alter the war, more Americano, to be a whisky agent at
New Orleans. Burnside states in his report that he forced the
44 disloyal " (ix. Secessionist) citizens to work on the trenches
round the town.* The imposition of such a duty as this is con-
demned by the majority of jurists, 4 but it is sanctioned, when

1 Kdwards, op. e*. pp. 906-A, * Hall. /stemolMma/ Law, p. 427.

Loofrtrast, From Ma*u*u to ^jyomatlox, p. fiOO. He quotas Barnsidrt

op. at sec. 1147-8; Fillet, op. eft. pp. 106-0; YYestlaks.
Inlmntiomal Law, Pt II. ;. 101 (who says " we cuppoM that to require so

ensmy civilian to aa*Ut in placing a gun in position would be forbidden by
Article LII of the Hague"). Oppeoheim (Intcnatitmal Law, VoL 1 1 . ,.
states that private individual, may be forced to build fortification., bat be
gives no authority for hi utement. Hall (/M/OTM/MMM/ Law, p. 478) is
rather vague ; be says an occupant belligerent nay force the inhabitant* to
give their personal eenrioea in matter* which do not involve military action

1 52 WAR RIGHTS ON LAND CHAP.

British outside the rayon of actual hostilities, by Professor Holland in
his note on Article LII in the British official Laws and Ciwloms
of War, where he says :

The "military operations" here intended would probably not
comprise works at a distance from the scene of hostilities. 1

I cannot think that his view would have been approved by the

Pilleton Hague delegates. Professor Pillet remarks that although an

vioaT&n arm y ^ i nvas i n ** entitled to utilise the services of the

inrader inhabitants for its varied needs for transporting supplies,

dJJjand. repairing roads, burying the dead, tending the wounded, etc.

and although these duties are in a sense subservient to

hostilities, as facilitating the invader's operations, they do not

amount to direct acts of hostility in the form of specific

I image to the national army. It is only such acts as are

directly and distinctly subservient to military operations such

as building fortifications, making munitions, repairing arms, or

giving information as to the enemy's position and numbers

that an invader is forbidden to demand of the " passive

enemy." I shall deal with the important question of the em-

ployment of enemy nationals as guides in a later chapter. 2

Article XXIV deals with stratagems and reconnaissance or
intelligence work generally. As to the latter little need be
said, as I shall touch upon it in connection with the question
Ruses of of spies and guides. Ruses of war have always been recog-
nised both in the practice and the theory of war rights.
Provided they do not involve treachery or a breach of an
express or tacit convention, they are quite unobjectionable. 3
Ambushes, surprises, night attacks, feint attacks, skirmishes,
nay, nearly every operation of attack or defence partakes of the
nature of a stratagem. The stratagem is the means which the
astute commander adopts to maximise the tactical advantages
or minimise the disadvantages which fortune has provided ; or

1 Op. cii. p. 37. He refers back to his note on Article VI of
(as to the works that prisoners of war may be forced to do), where he says :
" \V>rk even upon fortifications, at a distance from the scene of hostilities,
would not seem to be prohibited by this paragraph" (p. 11).

* Sec pp. 368-371.

1 See Bonfils, op. cit. sec. 1073 ; Pillet, op. cit. p. 93 ; Hall, International
Law, p. 535 ; Lawrence, International Law, p. 444 ; Westlake, International
Law, Part II, pp. 73-4.

MEANS OF INJURING THE ENEMY 153

perhaps more often to gain or keep the pow -at ing to

opponent the when and where of the critical eneoui

is more or loss a ruae ; but the term is confined
.T to a tactical movement in which there w dec*-
omo kind or other. Certain 1000160 men war law forbid*.
i a soldier who wishes to deceive his enemy to
assume certain symbols, or do certain acts to which, as it
were, Kuutory attaches, in accordance with an express or
imjlil war usage. An enemy most not be placed at
a disadvantage by reason of his reliance on the bona fde*
he assumption of the symbol or the performance of the
act Such a symbol is the flag of truce, the Geneva flag, the
enemy's national flag or uniform ; and the holding up of one's
hands, or the throwing down of one's arms, in sign of surrender,
is an act of the kind I refer to. In such cases as these, " an
un<l< rMuixiing exists that particular acts shall be done, or signs
used, or characters assumed, for the appropriate purposes only ;
and it is consequently forbuM. n to employ th in to deceive an
With these forbidden ruses I deal separately.
Beyond th.-m li< s an ndless variety of ruses in which the
nt maxim has force and application th.it 'all is fair in
(love and) war." War law admits them on the ground that a
grown-up army should not let itself be taken in by booby-traps.
The "Quaker guns" logs shaped like ordinary cannon and
mounted on wheels which the Confederates used at Vicksburg
to induce the besieging Federals to credit them with an
heavier armament than th.y possessed*; the paroling of
Federal prisoners at Richmond in .fun*-, 1862, after they had
been allowed to see the troop trains starting for the West with
fresh men for Stonewall Jackson, who all th<> time was but
waiting for the word to move eastward and hurl himself on the
right wing of the unsuspecting Federals ; ' the tents that Lord
Roberts left standing at Modder River when he moved away
on his great flank march which was to end in the capture of
Cronje at Paardeburg ; 4 the use of the English bugle-calls and
words of command by the Boers in the same war, are all

1 1 *ll. /NfenMffewil low, pi 53$,
1 Grant, ifemoir*, p. 226.
HtxWoo, St<mtw9tl /qdbom Vol. 1, p. 391.
. JTMlory, Vol. 1 1 1. p. 381.

154 WAR RIGHTS ON LAND CHAP.

instances of legitimate ruses of war. Baden-Powell fairly
over-ran his Boer besiegers with stratagem at M. if. king.

He had some large megaphones manufactured, the chief use of
which was to send bogus orders, audible to the Boers, about move-
ments to threaten some of their trenches; dummy forts and
dummy armoured trains were set up as baits, which proved most
successful in attracting a great deal of Boer fire ; on one occasion
he armed some men with lances manufactured at the railway work-
shops, and conducted them round all the trenches well on the sky-
line, in order to make the Boers believe that a detachment of the
lancers, so dreaded since Elandslaagte, had secretly come in fnmi
the south to reinforce him. By repeating the lamp signals
previously used on the occasion of a night attack, he induced the
Boers on another night to keep up aimless volleys at empty space
from some of the trenches that seemed to be threatened. 1

Japanese The concealment of cannon in deftly arranged branches or
brushwood is a common device of gunners, but the Japanese
reached a dizzy and dramatic height of stratagem when they
actually transformed the face of nature as a means of masking
their batteries. On the night before the battle of the Yalu
they transplanted trees to hide the tell-tale discharge of their
artillery, choosing those growing either directly in front or
directly behind the entrenchment that was to be concealed.
" Thus next morning the landscape appeared unchanged from
the Russian side of the river, as the fact that a tree of a par-
ticular shape had advanced or retired 200 or 300 yards during
the night was naturally imperceptible." 2 The Confederate
commander, Van Dorn, smuggled medicine (which was contra-
band of war) out of Memphis under Sherman's nose in 1863, by
the device of sending it in a hearse, under pretence of a big
funeral. " It was a good trick," says Sherman, " but diminished
our respect for such pageants in future." 8 J. B. Gordon very
nearly succeeded in forcing the right of Grant's lines at
Petersburg in March, 1865, by the ruse of sending his pickets
creeping through the Federal lines as if to desert. Deserters
had been coming in with great frequency about this time and
Grant's pickets, taking these men for deserters too, were over-
powered and captured before they grasped their mistake. 4

1 Tinus History, Vol. IV, pp. 688-0.

f Sir Ian Hamilton, Staff Officer* 9 Scrap Book, p. 107.

Sherman, Memoirs, VoL I, p. 285. * Grant, Memoirs, p. 696.

.v MEANS OF INJURING THE ENEMY 155
A doubtful stratagem wan that of the French at Mete in 1

nt oat tome PnwuUn Kick and wounded in * train, and
t day the identical train again came out tmt tl,.- time,
of being filled with lick and wounded, it W M filled

French troops having with them two mitnullctuea, who
upon the Prussians like wolves, taking them altogether by

captured over 100 prisoners, but, apart from the met
that the bringing of prisoners into Mets, already short of food
supplies, was of questionable advantage, the rase is open to the

tion that it shut the door, for the future, to the restoral of
sick and wounded prisoners, to the latter's detriment The Tb
most famous some would say the most infamous of all ruses
waj that by which Marshals Lannes and Murat induced the

e of Auersberg to withdraw his troops from the bridge
over the Danube at Vienna in 1805, by assuring him on their
honour that an armistice had been concluded. Nearly all jurists
have condemned the action of the French M****!*!*,* but it is
championed by the weighty and impartial authority of DC
Martens.* One cannot condemn it on the ground that it was
deceit ; all stratagem is deceit A capable army commander
must and does " act lies " over and over again in a campaign.
In this respect the standards of honour in war and in peace are

|M.lr* iiMiinl.T. It it ia,M I >hall try t. -h->\s lat.-r "ii. 4 a i> r-

missible rase for a commander to withdraw his men from a
dangerous position undi-r cover of a flag of trace, the action of
Murat and Lannes would not appear to be open to any objection
as a breach of war usage. There is also the consideration to be
taken into account that a commander is not bound to accept
his adversary's notification of the conclusion of an armistice.
On the other hand, belligerents do rely on each other's word of
honour in many of the commfrcia of warfare, and it would seem
that a commander is forbidden by the etiquette of war to deceive
his opponent by a false statement, though quite at liberty to

1 Time* Corre*pondent' deipttoh, quoted GMMlTs 7/^ory. VoL I, p.

PiUet, op. rit. p. W: WertUke, /ntema^mo/ o, Part II -,

156 WAR RIGHTS ON LAND CH. iv

do so by an "acted lie." It may be true that the maxim
vigilantibus jura scripta is applicable to International as w -11
as Municipal Law, and that the too- trustful commander cannot
complain if he finds his easy confidence misplaced; but one
cannot help feeling that the French Marshals .smirched their
own honour and that of France and the French army by what
they did at the Danube bridge. Can one conceive Outram
doing as they did Outram, compared with whom " the lion was
a coward and the fox a fool" ? Perhaps the best verdict, and
the deepest for all its seeming simplicity, on the incident is that
of the French General Marbot " As for me, I should not hl.<
to do such a thing in similar circumstances." 1

1 Fillet, op. cit. p. 95. There is a good chapter on rueea in the Fn-n.-h
Official Manuel A F * Usage, etc. p. 18.

CH M'll.KV

H. - i 1 i 1 1 IE8 SIEGES AND BOMBARDMENTS.

Law of War, Hague RtgUtntiit, Articles XXV to
EXTOL

ARTICLE XXV.

The attack or bombardment, by whatever means, of towns,
villages, dwellings, or buildings which are undefended is
prohibited.

ARTICLE XXVI.

The officer in command of an attacking force must, before
commencing a bombardment, except in cases of assault, do
all in his power to warn the authorities.

ARTICLE XXVII.

In sieges and bombardments all necessary steps must be
taken to spare, as far as possible, buildings dedicated to
religion, art, science, or charitable purposes, historic monu-
ments, hospitals, and places where the sick and wounded
are collected, provided they are not being used at the time
for military purposes.

It is the duty of the .besieged to indicate the presence of
such buildings or places by distinctive and visible signs,
which shall be notified to the enemy beforehand.

ARTICLE XXVIII.

The pillage of a town or place, even when taken by assault,
is prohibited.

" BOMBARDMENT," says Professor Fillet, " is the gravest of all
the measures of which a general can assume the responsibility.
It clashes diametrically with the first principles of the law of
nations, which command us only to attack those who can defend
themselves. It is violation of that great law of reason which

158 WAR RIGHTS ON LAND CHAP.

sanctions such injury only being inflicted as is necessitated by
the object of the war." l It is the impossibility of separating
a fortified or defended town from its inhabitants which jus
tin- bombardment of it; there is a certain solidarity between
the garrison and the residents which makes them, as it were,
brothers in misfortune when the enemy is at the gates. Tin-
usage of war assimilates a city which is defended to a fortress,
and so it allows an assailant to hurl his shells into it, to the
possible injury of its non-combatant population. The latter
are regarded, with no real justification in fact, as having exposed
themselves to war chances ; as, for instance, civilians who hap-
pened to be present with an army in campaign, when attacked,
would be regarded. As a matter of fact the inhabitants of a
beleaguered city are simply in their proper and permanent
abode and they have usually no power of withdrawing. It is
most unjust, as Fillet observes, that they should be subjected
to attack, while if they try to defend themselves, they are con-
sidered to break the rules of war: witness the tragedy of
Bazeilles. 2 However illogical it may be, the right to bombard
a defended town is admitted by practice, by all jurists, and by
the official manuals.
Unlorti- It is to be noted that Article XXV forbids the bombardment

nea towns

may be of towns, etc., which are undefended. " A "place, although not

barded if fortified, ma y bs bombarded if it is defended." 8 This principle

defended, was acted upon by the Germans in 1870, and when M. de

Chaudordy protested (in a circular addressed to the French

diplomatic agents at neutral Courts) against the bombardment

of open towns which defended themselves, 4 he was guilty of

either disingenuousness or an error in his war law. The French

themselves bombarded Kehl, an open town on the German side

of the Rhine opposite Strasburg, and justified their action on

the ground that fire was directed therefrom upon Strasburg. 6

1 Pillet, op. tit. p. 102.

Ibid. p. 104. See Bonfik, sec. 1081 ; Hall, International Law, p. 396.

* Professor Holland in the British Official Laws and Customs of War,
p. 30.

4 The circular is given in Cassell's History, VoL I, 221 ; see Bosch's
Bismarck, VoL II, p. 121.

9 The French reply to General von Werder's remonstrances is given in the
German Official History, Part I, VoL II, p. 445.

SIEGES AND BOMBARDMENTS 159

Again at Amiens, when the German General Von Goben
pied the French troupe who held the citadel opened

fire from it upon the town, regardless of it* being full of their
peacHul Mlow-countrymen. The Mayor of Amiens was
reduced to begging the German general to persuade the French
commander to surrender and so save the town from injury. 1
Defended towns, even if unfortified, have always been regarded
as liable to bombardment. Stunner, the Federal general,
threatened to shell Fredericksburg, an open town, in 1862,
sheltered Confederate troops. 1 Similarly in 1 s70, the Prussians
sent in word to Blboeuf in Normandy that, unless the French
troops evacuated it, they would drive them out by bombardment
hen," says Mr. "Sutherland Edwards, " was a case of an
open town being threatened with bombardment a fate to which,
notwithstanding a popular belief to the contrary, every town*
fortified or unfortified, which defends iteelf, is equally exposed." *
Vernon, an open town, was shelled because shots were fired
from it upon the Prussians. 4 It is quite beyond the point to
take a belligerent to task (as M. Politis does the Turks for the
shelling of Arta in 1897) for bombarding a town that is not
" seriously fortified." ft No one can tell to-day whether a town
is " seriously " fortified or not On 20th July, 1877. Plevna was
"an absolute I v open town, there being no fortification of any
kind." On 80th July, 1877, only half of it was surrounded by
redoubts, yet its defenders were able, on that day of wrath, to
hurl back a desperate Russian assault with terrible slaughter. 7
Sebastopol, Vicksburg, and Richmond, too, maintained notable
defences, yet they, like Plevna, were but imperfectly (ie. not
"seriously") fortified when first besieged; their earthworks,
trenches, and redoubts were being continually extended and
strengthened during the progress of the siege. 8 It was the

Huer, AiMeo-/VttMMJi War, Vol. II. p. 160, Admirml Cerrera
threatened to bombard Santiago in 1898 if the Ameriomn troop* entered it.
riagton, op. ctl. p. 900.)

Longitreet, op. fir. p. 981.

Kdwank, op. r,/. p. 277. * Ibid. p. WX

/. September-October, 1897. p. 686.

\V.|V. Herbert, Tk* Dtftnt* qf Pkv*a t 1877, OTO* oy oat teko took part
m H, p. 134- Herbert, op. t, pp. 168, 7.

Tkt Rmoman Army owl it* Campaign w TV key, 1877-4, by F. V. Greene,
Lieutenant, Corp. of Kngineen, U.S. A., p. 816.

160 WAR RIGHTS ON LAND CHAP.

enduring spirit of Totleben, of Joseph Johnston (for though he
was without the walls, he, and not Pemberton, was assuredly
the soul of the Vicksburg defence), of Lee, of Osman, and not
the perfection of bastion, fort, and parapet, which made tin-
strength of the resistance in these sieges. The walled city i-
nothing unless the heart and brain of a great commander guide
the defence.
Bombard- The peculiar case of M&sieres and Charleville gave rise to

open town an instructive discussion in the Franco-German War. The
UdpateT f ormer was a strong fortress on the Meuse ; on the opposite
in defence side of the river stands the wealthy manufacturing town <>f
1 Charleville, round which the French had constructed small
advanced works, shelter-trenches and road barricades. The
commandant at Me"zieres, Colonel Blondeau, requested the
German general Von Kameke to treat Charleville as an open
town, but the latter refused on the ground that it was
occupied by the enemy's troops. Both towns were bombarded
(31st December, 1870) and considerable damage was done to
Charleville before the French commandant hoisted the white

It was doubtless the remembrance of this case which led to
the insertion in the Protocol of the Brussels Conference, as a
commentary and accepted interpretation of the rules given in
the text, of the following clause (proposed by the president and
approved by the meeting) :

Every open town which is situated near a fortress and co-opci
in its defence is subject to the application of the first part of
Article 14 [i.e. of the original Project, which subjected fortified
towns to bombardment]. If it does not co-operate in the defence
it is protected by the principle of the second part of the same
paragraph [as being undefended]. 2

The practical value of the rule given in this Brussels " gloss "
is, I think, doubtful. If the possession of an unoccupied, un-
defended, unfortified town, near a defended fortress, is of no
importance for tactical purposes to either defender or
assailant, the latter will certainly not waste time and shell in
bombarding it. But if it is of value to the defender because

1 German Official History, Part II, Vol. II, pp. 123-7.
* Brunei* B.B. p. 196.

v SIEGES AND BOMBARDMENTS 161

struct* a lino of attack, because it offers him a shelter to
full back upon should the fortress prove untenable, or because
of tome other military reason then it eem to me that the
attacker could justify a bombardment of it under the plea of
military necessity ; it ia practically included in the perimeter

"fence and may be considered at co-operating with the

'*. At any rate, the very sound and reasonable French
Manuel admits the right to bombard the town in such circum-
stance* aa I havi the fire of the neighbouring

prevent* the attacker entering the town and maintaining
himself there " ; presumably because the very fact that the
commandant ortreas opposes the enemy's access to the

town shows that the possession of the latter must be a matter
of tactical moment Again, as the German Manual points out,
a town may be simply occupied, not defended, and in such a
case too bombardment is legitimate, for the occupation is part of
a system of defence. " Bombardment is justified and demanded
by military necessity when the occupation of the locality has

been designed for defensive purposes, but only to guard a
passage, to defend approaches, to protect a retreat, to prepare or
cover a tactical movement, to procure provisions." 1 would be
nil-- to deny the assailant a right to bombard in such a case, as

Institute of International Law endeavoured to do in 1886.*
The usage of war allows a commander to range his guns
over the whole of the defended city, save and except where
military necessities permit of his sparing the buildings, etc.,
mentioned in Article XX VII History furnishes coj>
examples of the practice. In the Crimean War indeed the
French and English artillerists are stated to have aimed their
fire only on the fortifications of Sebastopol, 4 and perhaps the
damage that was done to the town was due to the heavy banks
of smoke which obscured the gunners' aim. 4 At Nikopol in
1877 the Russians refrained from aiming at the town and
concentrated their fire on the Turkish batteries.* But they

JTrMpfctMcA MM Larndkritg*. p. 21.

pp. 10S-II1.

op. eft. MO. 1084.
NuUiTi Ifor ** AMMO, Vol I. p. 500.
Do Marten*, op. r*. p, 400.

162 WAR RIGHTS ON LAND CHAP.

undoubtedly fired on the town of Rustchuk in the saint- \\.ii, 1
and the Germans showed a similar inditVrrence to the inter
of peaceful residents in their bombardment of the French
cities in 1870. At Strasburg, Paris, Soissons, Verdun.
Montmecly, Longwy, Pe*ronne, the towns themselves w<-i
the mark of the invaders' shells and very great damage to the
life and property of the civilian inhabitants resulted. 2 The t<wn
and works of Strasburg were bombarded incessantly, day ;md
night, at first ; when the first parallel was opened and regular siege
operations were commenced, General von Werder directed his
artillery to shell the works by day and the town by night.' 5 \Yh.-n
the town surrendered, 448 private houses had been destroyed
completely, nearly 3,000 (out of a total of 5,150) were more or
less injured, 1,700 civilians had been killed and wound. I and
10,000 persons were made homeless. 4 The total damage done
to the city was estimated at nearly 8,000,000. Compared to
the fate of Strasburg, Paris escaped almost unscathed, the
casualties among the civil population numbering only 296, of
whom 141 were women and children. 6 At Soissons far more
havoc was wrought in the town than in the defences. 6 Verdun
suffered even more heavily than Strasburg, though the town
was surrounded by an enceinte of ten bastioned forts. 7 The
upper town of Montm^dy was nearly destroyed. 8 At Longwy
a crowded fortress " Sir Henry Hozier calls it all the public
buildings were destroyed and nearly every house was damaged. 9
At Pe"ronne "when half the houses had been demolished

the commandant, after a twelve days' bombardment,

which had injured neither the walls nor the guns nor one soldier
in the garrison, gave in." 10 Two such eminent writers as Mr.
Sutherland Edwards and M. Rolin Jacquemyns have approved
of the Prussian system of reducing towns by " simple bombard-
ment," as in the cases mentioned above. Their argument is

De Martens, op. tit. p. 400.
See Hall, International Law, p. 535.
German Official History, Part I, Vol. II, p. 458.
Hozier, Franco- Pruuian War, VoL II, p. 71.
Cawell's ffittory, Vol. II, p. 205.
Hozier, Franco-Pnutian War, Vol. II, p. 85.
Ibid. p. 157. 8 Ibid. p. 213. Ibid. p. 229.

19 Sutherland Edwards, op. tit. p. 183. Twelve inhabitants were killed
(loc.cit.).

v SIEGES AND BOMBARDMENTS 163

such a method tends to abbreviate fighting, and that the
strew placed upon the peaceful population of a defended city w
then itiable as laving greater JOB of life in the end

Dr. Bunch ha* stated that the German artillery "did not fire
n private bouses," * but the German official
History of the war shows clearly that the military staff at
Strasburg directed the bombardment, in part at least, with the
object of bringing pressure on the residents. It was
expected, we are told, that

A aerioua cannonade from the siege batteries upon the closely-
Unit town, sparingly provided at it was known to be with bomb-
proof shelter*, would overawe to a considerable degree the lev
tniHtworthy parU of the garrison, and probably induce the
inhabitant* to compel the governor to surrender the fortress.*

The view which hero emerges is one which cannot be too Bombard
vigorously combated. E^ ists of Germany have |J5j?to

condemned the argument that the end justifies the means as {****
applied to cases of this kind. 8 Bluntschli remarks with perfect CgJoaT
h that the endeavour to capture a fortified town by " pey-
i^ical pressure " on the inhabitants is " profoundly
immoral * It is to set back the clock of International Law to
allow a belligerent a war right to employ any measure at his
own sweet will because it will abbreviate fighting. " If this
tendency to shorten a war be the final justification of military
proceedings, the ground begins to slip fnm under us against the
use of aconitinc or of clothes infected with smallpox." * More-
over, as Bluntschli points out, success rarely attends the
attempt to intimidate the civil inhabitants of a beleaguered
into influencing the garrison to surrender. 4 The terrible sh.-ll-
ing of Strasburg only roused the citizens to a stronger determi-
nation. 7 The special correspondent of the Daily New* at Stras-
burg wrote at the time of the capitulation

On the authority of a member of the Council of Defence, to whom
the whole truth was well known, I can now state, without fear of

BUM*, /frmarri, Vol. II, p. MB.

German OOeUl JKtfory. Part I, Vol. II, p. 446.

& BonflU. op.fit.9ec, 1084, for the rim of BtaUohli MM! Odfcktm.
Blunuchli. op. e*. MO, 654 6u.

trrar, Jftttary * MOT ~4 OufcMM, p. 106,

Blunurhli. toe. of. Hoder, Jtimeo.fViuMM War, Vol. II, p. 61.

M 2

164 WAR RIGHTS ON LAND CHAP.

contradiction, that Governor Uhrich was always in perfect accord

with thr inhabitants and that if. in their opinion, he erred at all, it
in capitulating prematurely. 1

Bombard- If the Germans advanced a dangerous principle to excuse th< i i
need not indiscriminate method of bombardment, their practice went but
little beyond that which has been followed in most mod* m

works of wars. Belligerents are bound by no rigid rule to confine tin n
attack to the fortifications of a beleageured city. The solida 1 1 1 \
between the troops and the inhabitants of a fortified town, to
which I have already referred, may almost be said to deprive the
latter, temporarily, of their non-combatant character. 2 The
town as well as the works of Alexandria were shelled by the
British in 1882. 8 The Turks turned their guns on the town of
Pharsalus in 1897. 4 About 60 houses were destroyc-<l in
Santiago during the bombardment by the United States fleet, 6
and at San Juan 14 civilians are said to have been killed,
in what Mr. Titherington described as "one of the shocking but
inevitable incidents of war." 6 The Boers shelled both the
defences and the houses at Kimberley, and 5 civilians were
killed and 24 wounded as a result. 7 There, as at Ladysmith,
" the Boer gunners preferred the wider mark of the town as the
object of their shell fire to a systematic concentration of fire
upon any individual redoubt or work." 8 Mafeking town \vas
badly handled in Snyman's and Cronje's bombardments, hardly
a house escaping without some unpleasant souvenir of the Boer
fire. 9 As to the siege of Port Arthur in 1904, Mr. Ellis
Ash mead- Bart lett says that many of the shells passed over the
forts into the town and there was hardly a house in the latter
which had not been hit during the siege and some were reduced
to nothing but heaps of ashes and charred wood 10

1 Daily Newt War Correspondence, p. 205.

J. 8. Risley, The Law of War, p. 117. I'illct, op. cit. p. 104.
4 R.D.I. September-October, 1897, p. 687.

See J. B. Atkins, The War in Cuba, p. 197, who gives the number of
houses destroyed as 67 ; Titherington, Spanish- American War, p. 306,
ays 69. ' Titherington, op. cit. p. 165.

7 Maurice, Official History, Vol. II, pp. 57, 72.

Times History, Vol. IV, p. 559.

' Max-kern, Sidelights on the March, p. 248, where see photographs of some
of the damaged houses.
" . Ashmead-Bartlett, Port Arthur, p. 438.

v SIEGES AND BOMBARDMKNTS 165

No duiitit it is a matter of very great difficulty to confine the
effect* of long distance shell-fire to a circumscribed area.
ig Toms " and Howi tiers are apt to be indiscrirnin

nd even the most exact and scientific gunnery can
hardly ensure that a shell finds its proper billet 9,000 yards
away. On th<- <th< r h.-md. the modern tendency is to throw Fortreai

res of a city to a very much greater distance than "
was once the custom. "The fortress is now an 'entrenched*
camp,' whose perimeter tends constantly to increase." l Sieges
are now more or less field operations. Sir Ian Hamilton relates
a very instructive speech of General Nogi's, in this connection.
He said a town or harbour

Can only t>e saved from destruction by outlying forts, 12 1
metres (8 miles) distant from the vitals they are meant to cover.
As for a fortified harbour or town without any outlying works
whatever, I would merely call that an expensive shell trap. 2

nisburg suffered so terribly in 1870 mainly because there
were no detached forts around the town and the ramparts were
so close to the houses that the one could not be shelled without
damaging the other.* Metz, on the other hand, suffered 1
because, " with its girdle of detached forts, it was the one
I 'ranee where the inhabitants were safe from the
besieger- \Vh.-n Sherman bombarded Atlanta in

IM>I li<>od protested against the method he adopted. Hood

t:ri into the habitations of women and children
weeks, firing far above and miles beyond my line of defence. I
have too good an opinion, founded both upon observation and

.\|H-rirn.--. of th,- skill of your ;irt ill.-n-.ts. to .-iv.Iit ,! insfSASSSBBl

they for several weeks unintentionally fired too high for my

modest field-works, and slaughtered women and children by accident

an.! w,u,t of .kill.'

Sherman's explanation

You defended Atlanta on a line so close to town that every
cannon-shot and many musket-shots from our lino of investment,

1 See a paper, "The Crisis in Fortification," in the *. JK.
September. 1907 (translated from the French).

A St<fOfit*> Scrap Book, VoL II, p. 311.

Homier, /Vtme./ViMMM War, VoL II, p. eU
Sutherland Edwards, op. o*. p. 181.

Sherman, Mtmo ,. 12*

166 WAR RIGHTS ON LAND en

that overshot their mark, went into the habitations of women and
children. General Hardoe did the same at Jonesboro', and General
nston did the same, last summer, at Jackson, Mississippi. 1

To day, given armaments of fairly equal range (and, gen. nil \
speaking, the defenders' guns ought to be able to outrange the
aggressors') and defences pushed well out, a defender ought to
be able to prevent the city on which he is based being bombarded
io at all. Bombardment from dirigible balloons will soon have to
meut may ^ reckoned with, of course, and, no doubt, bombardment fnun
aeroplanes too in the course of time, but so far as terrestrial war
is concerned the march of events may bring it about that
" simple bombardment " of inhabited cities will become an
impossibility, simply as a natural consequence of changed
methods of defensive war. It is sincerely to be hoped that it
may be so. As Hall observes, " the bombardment of a town in
the course of a siege, when in strict necessity operations need
only be directed against the works, .... is an act which,
though permissible by custom, is a glaring violation of the
principle by which custom professes to be governed." s
Reply of When the Brussels Conference was sitting in 1874, the town
Brussels ^ Antwerp submitted a petition praying the Conference to
Confer- adopt the principle that, when a fortified town was bombarded,
\\][*' ! the fire of the artillery should be directed solely against the forts
Antwerp and not against private houses belonging to inoffensive citizens. 8
as to The Committee of Conference which considered the petition
made the following reply :

The Committee placed this communication on record. It
agreed to declare that, according to the principles which preside
over these deliberations, the operations of war should be directed

1 Sherman, Memoirs, VoL II, p. 120. In the Seven Weeks' War, " Prague,
though surrounded by ramparts, struck the Austrian colours without firing a
shot, because the Prussian guns would at the same time have played upon the
defenders and the parapets, the unprotected citizens, and the rich storehouses
of the merchants." (Hozier, Seven Weekt War, p. 73.) The lesson taught by
this war, that " fortifications which enclose a town of any size are com-
paratively useless, unless the defensive works are so far in front of the houses
as to preclude the possibility of the bombardment of the city " (ibid. p. 73),
would not appear even yet to have been entirely mastered by military
engineers.

1 Hall, International Law, p. 396. See Manuel a VUiage etc. p. 22.

* Brunei* B.B. p. 197.

v SIEGES AND BOMBARDMENTS 167

isively against the forces and the means of making war of the
hostile State, and not against its subjects so long at the latter do
nut themselves take an active part in the war.

Moreover, a special Article of the Project submitted for their
crimination expressly stipulates that private property shall be
respected, and no exceptions are made to this rule but those

. are strictly justified by the absolute necessities of the

These principles testify that the Conference is already moved
by the humane desire expressed by the citisens of Antwerp, and the
objtN deliberations is to seek every practical means of

carrying out that idea,

i to be hoped that these principles will, in the future,
1'i-mg about a realisation of the desire of the citixens of Antwerp.

In toe meanwhile, the Committee has entire confidence that

every commander of civilised armies, acting in conformity with the

I . > which it is the mission of the Conference to sanction by

mi international regulation, would always consider it a sacred duty

to emp'oy every means in his power, in the case of a siege of a

:ioc town, to cause private property belonging to inoffensive

citisera to be respected, as far as local circumstances and the

necessities of war will admit. 1

One cannot but recognise that the principles here laid down

have not brought about " a realisation of a desire of the

n* of Antwerp." Every siege since 1874 has seen the

house* of innocent citizens battered to pieces, unintentionally,

n.> ill. ilt, but it matters little to the unfortunate householder

the destruction of his home is deliberate or accidental.

Ami so long as towns are bombarded, peaceful inhabitants

must suffer. It is a necessity of war which can only pass

with a change in the circumstances which make bombardment

possible at all.

The bombardment of undefended towns, etc., in maritime war BomUnl-
was considered at the Hague Conference in 1907, which aimed JJJJJ. 01
at " applying to this operation of war the principles of the !*/--
Regulations of 1899 respecting the LAWS and Customs of Land JJJ"
War." The following rules were agreed to, and though they
do not appear in the lUgUmnti on Land War, they are clearly
applicable to all bombardments. They practically reproduce
the recommendations on the subject made by the Institute
of International Law in ite 1896 session, when it was

1 68 WAR RIGHTS ON LAND CHAP.

un.-mimously agreed that there is no difference between the
ml os of war as to bombardment by military and naval forces. 1
Th first Article forbids the bombardment of undefended ports,
towns, etc. ; then comes

Article II.

Military works, military or naval establishments, depdts of arms
or war materiel, workshops or plant which could be utilised for tho
needs of the hostile fleet or army, and the ships of war in the
harbour, are not, however, included in tin- prnhiliition. The
commander of a naval force may destroy them with artillery, after
a summons followed by a reasonable time of waiting, if all other
means are impossible, and when the local authorities have not them-
selves destroyed them within the time fixed.

He incurs no responsibility for any unavoidable damage which
may be caused by a bombardment under such circumstances.

If for military reasons immediate action is necessary, and no
delay can be allowed the enemy, it is understood tfcat the
prohibition to bombard the undefended town holds good, as in the
case given in paragraph 1, and that the commander shall take
all due measures in order that the town may suffer as little harm
as possible.

Article III.

After due notice has been given, the bombardment of undefended
ports, towns, villages, dwellings, or buildings may be commenced, if
the local authorities, after a formal summons has been node to
them, decline to comply with requisitions for provisions or
supplies necessary for the immediate use of the naval force before
the place in question.

These requisitions shall be in proportion to the resources of the
place. They shall only be demanded in the name of the commander
of the said naval force, and they shall, as far as possible, be
paid for in cash ; if not, they shall be evidenced by receipts.

Article IV.

Undefended ports, towns, villages, dwellings, or buildings may
not be bombarded on account of failure to pay money contri-
butions.

The Committee which examined the question of naval
bombardment at the Hague declare in their Report that " the
fundamental principles governing bombardment of towns,
villages, and undefended dwellings, by land forces, ought to
apply equally to the bombardment of ports, towns, villages, etc.,
1 Holland, Studies in International Law, p. 110.

v SIEGES AND BOMBARDMENTS 169

by naval belligerent*,*' l and the principle, enunciated in the
throe article* above may be taken a* representing the war law
<>ii the subject of the bombardment of undefended places,
. such slight modifications as the difference between
sea and land warfare renders necessary.

Th- nature of these modifications is indicated in the Report
itself * out that while a land force is usually able

to seise an undefended place and carry out any necessary
destruction of stores, etc., without resorting to bombardment,
a naval commander may sometimes find it impossible to do so,
. irh.-r because he cannot spare a landing party or because
he is obliged to withdraw rapidly.* Generally speaking, a land
commander should have no need to resort to bombardment
in the oases mentioned in the Articles quoted above; he could
destroy military storehouses, etc., or enforce requisitions by
mh, r methods. But if, for some reason, it were impossible for
him to send a force to seize an undefended town and destroy
its military establishments, and to carry off the provisions
or stores which the inhabitants refused to supply on his
requisition, :h- n military necessity would justify him in
following the rules laid down for the bombardment by a naval
loto*

In connection with Art IV of the rules for naval Bombard
bombardment, given above, it may be noted that in th, British exmc t
Official Lav* and Customs of War, Professor Holland lays down JJJJJ?"*
the rule that " a place must not be bombarded with a view Eibited.
merely to the exaction from it of a ransom," and the rule
forbidding bombardment on account of failure to pay a money
contribution may also be accepted as a usage obtaining in land
no less than naval war. Early's destruction of Chambersburg
in 1864* and the bombardment of Puente by the Chilian
naval commander, Captain Lyn.-li. m 1880, 4 are two instances
of refusals to comply with demands for money contributions
being visited with ruthless punishment No civilised belligerent
would follow these precedents to-day. The French Admiral

1 Bio. Book, Pn*xoU o/ <At Awm Ftaary JfofMyt ^ <At M JVMf
Cba/bvict (Od. 4081, 1908), which I thill refer IOM "HafM II B.& (A),"
p. 113.

Hgn II RR. (A), pp. 115, 117 8~ p. 131.

IfArkham'i War b**m /V md CkiU, p 216,

170 WAR RIGHTS ON LAND CHAP.

Aubc recommended in 1882 that armoured fleets should,
in future ware, descend upon the enemy's commercial ports
and hold them mercilessly to ransom; 1 his Gov. rmm -nt
dissociated itself from this view, which is now dismissed f'nmi
practical politics by the Hague Convention of 1907.
Three As war law stands one may say that an undefended city,

^Jjj h l ^ n . unoccupied by troops and not situated within the peril:
defended of defence of a neighbouring fort or forts, may be bombarded
majTbe in land war only in three cases and in those three cases only
arded */**** absolutely impossible to obtain the end in view by mi
means : the three cases being :

1. the destruction of military stores, factories, etc. ;

2. to secure compliance with legitimate requisitions ;

and

3. a very doubtful case to inflict punishment, by way
of reprisals, for infractions of the laws of war on the part
of the enemy. 2

Destine- " Article XXV is not to be interpreted as prohibiting the

^"j^ even destruction, by any means, of any buildings whatever, \\ln-n

bardnnnt, military operations necessitate such destruction." This state-

fegitunate ment was ma< ^ e ty the German Military Delegate at the Hague

as a in 1899, and was not questioned by any of the other delegates. 3

tactical ^ ^ reproduced in the British Manual 4 and the German

necessity. Kriegsbrauch im Landkricge. 6 It follows, indeed, from tin-

general war right of destruction with which I have dealt

in the last chapter. The necessities of the defence of a

position may justify the destruction of a house, a street, a

village in its vicinity; and there is nothing, of course, to

prevent that destruction being effected by artillery the

inhabitants being first removed.

1 Hall, International Law, p. 431.

* See Holland, Studies in International Law t p. 110, who gives these three
cases as those in which the Committee of the Institute of International Law
decided, in 1896, that an undefended town could be bombarded, except that
under (2) he includes contributions. The third case punishment for breaches
of war law was not approved by the Institute itself as one in which
bombardment would be justifiable.

Hague I B.B. p. 148.

4 Holland, Laws and Custom* of War (Official), p. 30.

* Page 21.

v SIEGES AND BOMBARDMENTS 171

A i \ \ I provides for warning being given of an Wamtaf

led bombardment, M except in oases of assault" B> ^,1"
"assault" (attaqm d$ *M* force) in meant a surprise attack. 1 *
" All military operations, botb offensive and defensive.are nv
more hk.-l\ to be successful if they partake of the character
of a Hurprise," 1 and the general rule which enjoins warning
be overridden whore there are military reasons against
it Ordinarily, however, a bombardment would not be in the
to of a surprise attack and tho rule as to warning was
y generally accepted even before tho Hague Conference
'9. Hood and Sherman hod a passage of words in 1864
on the subject of the necessity for giving notice of a bombard-
ment. Sherman shelled Atlanta without warning and Hood
protested against his action, on the ground that notificat
was "usual in war among civilised nations." Bbannasj
I :

I was nut bound by the laws of war to give notice of the shelling Sherman .

mU, a fortified town, with magazines, arsenals, founderics view J
[ric], and public stores ; you were bound to take notice. See the

Sherman's contention is hardly borne out by the Instruction*
of t he Government ho was serving. Article 19 of the American
Instructions lays down :

Commanders, whenever admissible, inform the enemy of their
intention to bombard a place, so that the non-combatants, and
especially the women and children, may be removed before the
bombardment commences. But it is no infraction of the common
law of war to omit thus to inform the enemy. Surprise may be a
necessity.

There was no question of a surprise attack at Atlanta, which

was then full of non-combatants, and Sherman's view, as

sscd in his quotation, cannot be reconciled with the

e laid down in this article. The same position was and B-
adopted by Bismarck in 1870, when he refused to give notice Maft!k ' 1 -
of the bombardment of Paris. The French Foreign Minister

1 Bnusela RR pp. 196, m

Britbh KM frrWot *ylsfibi, PaH /, Combin* T Mii. i | t we. 108.
Mtmoin. V,: :!. 128.

172 WAR RIGHTS ON LAND CHAP.

protested against the German authorities' action, in a circular
addressed to the neutral Cabinets, in which he said :

The besieger is bound to announce beforehand his intention to
bombard, in order to give time for non-combatants, women and
children to be removed. There was no necessity for a bombard-
ment without previous notice. 1

That this reading of the usage of war* was the accepted one
is shown by the fact that it was supported by all the foreign
diplomatic agents in Paris, who protested against the omission
of a notification. 2 But Bismarck maintained that a fortified
and beleaguered city ought to be prepared for bombardment
and that neither law nor custom required a warning to be
given, 8 and this position is still adopted in the German official
manual, Kriegsbrauch im Landkriege, which lays down that
warning is unnecessary. 4 So far as a surprise attack is concern* < 1 .
the German view may be admitted, and it is also true in the case
of a bombardment of forts or strongholds in which there are no
non-combatants present. " Notification of bombardment," says
Professor Le Fur, "cannot be insisted upon in the case of
detached forts, coast batteries, or fortified works separated
from towns. . . . The garrison which occupies them is bound
to be on its guard from the moment of the declaration of war." 6
The Greeks gave no warning before their bombardment of
Prevesa in 1897, but as they fired only on the fort, their action
is supported by M. Politis as justifiable. 6 When, however, the
place threatened with bombardment is one containing non-
combatants, and especially women and children, considerations
of humanity (to say nothing of the very definite Hague
regulation) clearly render a warning desirable. Bluntschli, a,
State-paid professor, has not hesitated to contradict the German
Chancellor's contention that there is no usage or law enjoining

1 Quoted, Cassell's ffittory, Vol. II, p. 194.

Fillet, op. tit. p. 108.

1 Cassell's History, VoL II, p. 194 ; Hozier, Franco- PruMian War, Vol. II,
pp. 133, 258; Bosch, Bismarck, Vol. I, p. 185. At Strasburg, however,
(Jeneral von Werder warned General Uhrich when the bombardment was
about to commence (German Official History, Part I, VoL II, p. 447).

4 Op. tit. pp. 19, 20. R.D.I. September-October, 1898, p. 777.

Ibid. September-October, 1897, p. 687.

SHU- \\DBOMBARDMENTS 173

t*ts of all nations agree. Notification of a
bombardment has now become the rule. Witness the
bombardment of Madagascar by the French in 1895;* of
Manila and Santiago by the United States in 1898; 1 of
Kimberley in 1899; 4 of Port Arthur in 1904.* San Juan
was bombarded in 1898 without notice, although Admiral
Sampson had spoken of "duo notice" being required, in a
despatch addressed to the Navy Department at Washington a
short time before. 9 As to the time which ought to be allowed N
between warning and bombardment, no fixed period is laid g^,
down. At the Brussels Conference one of the delegates
suggested that a delay between the warning and the attack
should be provided for; the President pointed out that "the
warning, by its very nature, implies the idea that it may be

<1." 7 Different periods of delay were granted by the
United States authorities in the Cuban and Philippine
bombardments in 1898. At Santiago, Shatter's first demand
for surrender (3rd July) gave about twenty-four hours' notice,

no bombardment followed this demand, and his second

demand, of the 6th July, gave the Spanish Commandant three

days' respite, to enable him to communicate with Havana and

Madrid ; when Washington rejected the Spanish proposals for

. Shatter's final warning gave less than twenty-four

tice. 8 At Manila, Dewey and Merritt gave the

Spanish Captain-General forty-eight hours' notice of the

intended bombardment 9

1 HlunUohli, op. <*. sea 564. He says :" Even when it is a case of
fortified plaoes, humanity requires that the inhabitants should be warned of
the moment of opening fire, whenever military operations allow. It is only in
the most argent oases that a sodden attack, oombined with immediate
bombardment, appears to be authorised by military nsosesity."

1 1'illot, op. at. p. 108,

TltheringUm, op. <*. pp. 987, 305, 371

Time* JTutory, Vol. IV, p. 545. On 90th October, 1800, Cronje
notified Baden Powell that he would begin to shell Mafeking on the 93rd
at a-m,, but the bombardment had been actually begun on the 18th.

Ariga, op. cA. p. 275. In 1894, Japan promised not to bombard Wei-hai-
wei and Chefu without giving notice (two days in advance), K.D.I.
September.October, 1888, p. 7

Titberingtoo, op. <*. p. 165; K.D.I. September October, 1888, p. 778.
1 fli iissnli B.R p. 985.

Titherington, op. or. pp. 967, 305-6. Ibid. p. 371.

174 WAR RIGHTS ON LAND CHAP.

It would be difficult to lay down any rigid rule as to the
period of grace that ought to be allowed. The main thing is
to give a reasonable time to the non-combatants to provid
their safety. A perfunctory warning, or a belated warning,
such as Cronje gave at Mafeking in 1899, four days after the
first shell ha in <1, is no warning at all.

"The besieger," says Professor Holland in his note to tlu^
ing exit Article in the British Manual, " is under no absolute obligation
J^" to allow any portion of the population of a place to leave it,
batanu even when a bombardment is about to commence." 1 " The

I C

bombard- ^ ree passage of ' useless mouths ' (des bouches inutile*)" says De
Martens, " might lead to the indefinite prolongation of the siege
of an important place and compromise the military combinations
which are based on its immediate capture." s On the other
hand, to refuse exit to the non-combatants of a town which it
is proposed to reduce by bombardment or assault, and not by
famine, is to inflict unnecessary suffering on persons who are
protected by the laws of war. The question was raised at the
Brussels Conference, when the German and Italian repre-
sentatives wished it to be declared that

Should the defender of a fortified place turn out the inhabitants
in order to husband his resources with the view of prolonging the
defence, a measure which might be justified by military require-
ments, the besiegers may, without violating the laws of war, refuse
a free exit to such inhabitants, and that in such a case the
besieged shall be obliged to allow them to re-enter the place. 8

"The position of these unfortunate people would be cruel if
the besieger refused them, which, if he did not wish to help
the tactics of his adversary, he would be bound to do."
Unfortunately, the French delegate obtained the withdrawal of
the proposition, on the ground (by no means borne out by
history) that such a case was improbable, and no decision was

1 Laws and Custom* of War, p. 30. The French Man\ul states that the
besieger " will do well " to consent to the non-combatants leaving, if his siege
operations allow of it (p. 24).

8 De Martens, op. tit. p. 397.

* Brussels B.B. p. 196. Bluntachli lays down the rule (op. cit. sec. 553)
that "the besieger may, without violating the laws of war, refuse free
passage to the expelled inhabitants of the town, and in this case the
besieged is bound to allow them to return." See also American Inttrurtions,
Article 18.

v SIEGES AND BOMBARDMENTS 175

given. 1 Modern wan furnish instances both ..t the grunt and
10 refusal of leave to depart in such circumstances, but
there ia no doubt that a usage in growing in favour of allowing
free* I the Spaniah Commandant .f I^-rida

expelled tome thousands of non-oombaUnU from the town,
the French Marshal Suchet received them with a storm <*f
grape-Hhot, drove th.-n. int.. th. , itadel, and shelled them there
all i,:.:!it. f Compare with this the permission given by the
Mikmio in 1904 to the non-combatant resident* of Port Arthur
to leave the fortress before the bombardment commenced, and
tdvance that has taken placv in this department of war
usage can be appreciated. 1 The magnanimous offer was
declined by the Russian authorities, but it is to the credit of
Japan and of civilisation that it should have been made. The

uona, never disposed to forx mil measure of their prmctlai '

l>"ti<l in any question of war rights, adopted a rigorous and
inhumane iittinidr. f<>r the most part, towards the civil popula-
tions of the French cities in 1870. At Paris they allowed
several hundred women and children to cross the lines in
October, 4 but at St Denis, at Thionvillo, at P4ronne, t
refused to let non-combatants leave the threatened cities. 4
also refused at first at Strasburg, 6 but subsequently
allowed some delegates sent by the Swiss Federal Council to
remove about 2,000 women and < -hil.ln -n, wh. had been rendered
homeless by the bombard n Switzerland. 7 The besiegers

took down a barricade to let the emigrants through th-ir lines,

1 BruMek, B.B. p. 100.

De Marten*, op. r*. p. 196 ; T. D. Woobej, International Law, p. 232;
Fairer, J/iVi/ury Manner* and CV*om*. p. 21.

1 Ariga, op. <*. p. 275 H I ' II. J.m, Tk* &eye tf Port ArtA*r, pp.
46-7 ; Kinkodo Compaoy'i 7/^ory, p. 548.
CaaMll*. FMtory. \ 435.

St. DenU, ate OaawOl's ffvtory. Vol. II. p. 245; Thionville, aw QnHM
Official ffufory, Part II. \ JO ; P4rtmoe, ibid. p. 2KL

Before the bombardment General Uhrich aaked pertni.ioo to aand the
women, children, and aged oat of the town a " wiah which wa too modi
in opposition to the aamiUnt's intoreeto to be ooooeded " (German Official
ti&ory. Part I, Vol. II, p. 447).

' General von Warder obeeqaently withdrew the permiaioa to leave toe
n the original emigranU endearoured to excite, from Bile, lamilaiiLii
against the German troopt ia Upper Abace (German OAVrial //iwory, rVr

176 WAR RIGHTS ON LAND CHAP.

and General Uhrich allowed two hours' armistice for the recon-
struction of the barrier after they had passed through. 1 At
the siege of Metz an incident occurred in connection with .m
attempted exodus of non-combatants which attracted a good
deal of attention at the time. Some thousands of peasants
presented themselves before the German outposts under a flag
of truce and endeavoured to pass through the investing liin-s.
They were ordered to turn back but disobeyed, and shots were fired
over their heads to intimidate them. These had no effect, and
a male peasant, who led the way with a flag of truce, was th -n -
fore fired at and wounded. Upon his fall, the rest turned and
fled back to Metz. 2 It would have been fatal to the German
policy of starving Metz into surrender to have allowed such a
wholesale exodus as was attempted and one cannot see how
they could have acted otherwise than they did. The Instruct i< ms
for the guidance of the Japanese troops investing Port Arthur,
drawn up by the legal counsellors and distributed to the corps
on the 8th August, 1904 (the Mikado's offer was not comnmni-
Japanese cated until 16th August), forbade the troops to relax their fire
in the event of the Russians despatching women and children
from the city with the object of appealing to the compassion of
the Japanese ; " they should not, however," said the order, " be
fired upon intentionally." 8

The most humane commander cannot allow a body of non-
combatants, even women and children, to endanger the success
of his operations by an appeal to his pity. Still less will he be
disposed to allow combatants to do so. At Metz, " the number
of Frenchmen brought in daily by the German outposts
became so large that Prince Frederick Charles instructed the
Generals in command not to receive more deserters than was
absolutely necessary in order to obtain information." 4 On one
occasion, no less than 800 deserters presented themselves ; they
were sent back to the fortress. 6 No fault can be found with the
Red Prince for declining to assist Bazaine to rid himself of

1 Hosier, Franco- Prussian War, Vol. II, p. 64.

* Daily News War Correspondence, pp. 359-360 ; CaawU's History, Vol. I,
pp. 282-4 ; Hosier, Franco- Prussian War, Vol. H, p. 118.

* Ariga, op. cit. p. 274.

4 German Official History, Part II, Vol. I, p. 199.

* Hozier, Franco- Prussian War, VoL II, p. 118.

v SIEGES AND BOMBARDMENTS 177

useless in n order to huHbaii'l h: fjod supplies; but \i

was a very different matter when the inhabitant* of villages
outaide Mete were driven into the town. An English corre-
spondent who was in Mets during the siege and who has left an
invaluable record of its incidents, relates how the Prussians
drove sucb inhabitants into the town and, when the poor
ereatures tried to return to the Prussian lines, fired over their * MeU '
heads or even at them, for some were hit and drove them
into the town again. 1 If a besieger, relying on starvation as
one of his weapons, is not bound to let the besieged diminish
the number* he has to feed by expelling some of them, the
bcnioflnd for his part cannot fairly bo forced, out of commiseration
f.>r his u n i.. ruinate fellow-countrymen, to add to his "
months " and lessen pro tanto his chance of successful
I . the status quo at the beginning of the siege ought to

be maintained What the Prussians did at Mctz was attempted
OB a smaller scale in 1899 by General Burger, who tried to force
some 280 British-Indians, who had come from the Transvaal, *<* tl*
upon the Ladysmith garrison. L, : , '

White had previously taken in the Dundee wounded and
200 refugee coolies from that place, bat so barefaced an attempt to
weaken his powers of resistance by imposing on hia humanity raa
too much. When pressed, Burger conceded the point and allowed

tin- Iinii.uis t.i -.. -"Uth. J

At the siege of Kara in 1877, the Russians forced the in-

tante of tlu> ullage of Tchiflik to retire into the fortress,

but the circumstances were different from those at Mets. The

village lay between the siege batteries and the fortress, and, as

a tactical measure, the Russians decided that the villagers must

r go outside the Russian lines or into the town. They

refused to do either and furthermore acted in such a way as to

create the suspicion that they were guilty of espionage. They

were therefore driven into the fortress.*

10 great siege of Plevna in 1877 furnishes another instance
! .1 besieger refusing exit to his enemy's non-combatant
nationals. When Osman Pasha's food supplies began to fiul, he bauou t

1 O. T. Robinron, Tkt Atfrayo/ </ Jfcte, p. 316,
* Timm Binary, VoL III, p. 163.
'DeMarUam* <* *.>. 401.

i 7 8 WAR RIGHTS ON LAND CHAP.

turned out the old men and women who \v. K in tin- town and
demanded free passage for them to Sofia or Rakhovo. General
Oourko refused and sent them back. 1 He could not do other-
wise without detriment to his plans. On another occasion
during the same siege, an individual woman tried to pass through
the Russian lines ; she was driven back into Plevna by Cossacks
with whips,* One can hardly quote the Boer war of 1881 for
precedents on questions of International LAW, but an incident
of that war is rather instructive as showing how an astute
belligerent, unbound by military traditions, will naturally adopt
the very practice which has become part of war usage. When
Potchefetroom was besieged the Boer commander gave per-
mission to the women and children to leave the fort where- t !>
English troops held out. At this stage, apparently, it was not
thought that the fort could be reduced by famine; subsequent I v
when the garrison's food supplies were known to be running
short, permission to leave was requested for some ladies who
had not availed themselves of the original permission, but the
Boers would not accede to the request. 8 In the Spanish-
Spanish" 1 American war, the United States troops not only allowed the
American non-combatants in Santiago to leave the city before the
bombardment, but they provided food for the starving fugitives
who passed in a great stream through the investing lines. 4
What makes it so difficult to decide how to treat the inhabitants
of besieged towns in this matter of granting passage is that
commanders have not been able to find any means of reconciling
the opposing interests of military necessity and of humanity.
Compro- However, in the last Boer war an excellent expedient was hit
LaT\ at U P D * n t ne shape of the " neutral " camp at Intombi
smith. Ladysmith, which solved the difficulty I have referred to.
Generals White and Joubert arranged that this camp should !>
used exclusively by the sick, wounded, women and children of
the town, from which their rations were conveyed daily, and
there they remained unmolested during the siege. By this
means it was secured that the British commissariat department

1 De Martens, op. tit. p. 401.

* V. L. Nemirovitch-Dantcbenko, Personal Reminiscences of Centra
SkobeUJ, p. 166.

* The Transvaal War, 1880-81, edited by Lady Bellairs, p. 255.

4 Titherington, op. tit. pp. 267, 286-6 ; Atkins, The War in Cuba, p. 171.

v SIKGKS AND BOMBARDMENTS 179

was not relieve*! "ling food for the nun-

combatant*, while the latter were protected from the dangers
of die bombardment. 1 Commandant Weasels at Kimberiey was
even more chivalrous, if less ingenious, than Joubert ftt
Ladyamith. Before he began the bombardment, he suggested
to Colonel Kekewich that all the women and children should
be sent o town; ho offered to receive Afrikander

iei in hia own camp, and to grant free passage to all others.
Kekewich accept*! th- ..(far so far as the Afrikanders were con-
cern* dined it for the others, and, for some reason, the
receipt of the offer concerning the European families was not
made generally known. The Tinu* historian surmises that the
reason for the concealment of Weasels' offer from the British
and Colonial population was that the purport of his letter was
not understood, owing to an imperfect knowledge of Dutch on
the part of Kekewich ' staff. But General Maurice gives as
the reason Kekewich's lack of transport for families other than
aider and the fact that the publication of the letter might
have caused unnecessary alarm in the town.* When Cronje
was cornered by Lord Roberts at Paardeberg, it was not at first

i to ill.- l.irt.-r that there were women and children present
in the Boer camp. When he discovered it, he sent a chivalrous Free
and notable letter to Cronje, in which he expressed regret 5SCS*
that the women ani u should have been exposed to IWd*

thr r.nr>h tin and offered to grant them a safe-conduct

igh his lines. This offer Cronje curtly declined. N
day he repented and proposed that Lord Roberts should
supply him \wth a complete hospital equipment, which he
would graciously allow to be erected to the west of the laager.
As the History of the Berlin Great General Staff points out,
this suggestion of Cronje's was " an extremely crafty artifice,

ho Boers would then have been safe from an attack on t!

1 Times Hbtory, Vol. Ill, pp. 107-8 ; Maurice, OJtcial tfiKory, VoL II,
p. Ml.

Timm Hirtory, VoL IV, pp. 64ft-6 ; Maurice, VoL II. p. 67. Only fa
Afrikander* arailtd themselves of the liberty to depart ; bat afterwards, wneo
it became known, from a captured Boer paper, that toe general oflsr bad been
made, tome of the inhabitant* found ready fuel for a grievance in the conceal
mant of an offer which they would probably have declined at the time it WM
made (7*M History, /r.)

N '2

i8o WAR RIGHTS ON LAND CHAP.

moot dangerously exposed side." Lord Roberts, in his tin.il
n ply, regretted that if his original offer were not accepted, In-
could not make another. 1 He had done all and more than all
that chivalry and generosity demanded, and it was assuredly no
fault of his if the Boer women and children had to endure the
horrors of the bombardment of the succeeding days, when sixty
guns poured a converging fire upon the cramped laager where
the burghers stood at bay. 2 An American war correspondent
who was with the Boers states that the women in the laager
helped tin m, n to dig the trenches and used carbines, which
may account for Cronje's reluctance to let them go. 8

I have already said something of the offer made by the Mik-

i \'.i ado to certain of the inhabitants of Port Arthur in 1904.
Protection was promised to women, children, priests, diploma-
tists, and military and naval attaches of neutral Powers.
Young people of under 16 years were included in the term
children. The persons mentioned were directed to present
themselves, under the white Hag, at the Japanese outposts at a
certain hour, and they were permitted to take with them a
single bundle or package of ordinary size, which was not, how-
ever, to contain any written documents, etc., relative to the war.
The offer was declined by the Russian authorities in Port
Arthur, who said that " they did not find it possible " to take
advantage of it. 4 It seems to be a general experience in the
case of towns threatened with bombardment that the inhabit-
ants make light of the danger and deprivations until these evils
are actually present and it is too late to escape from them.

Churches, Article XXVII provides that buildings devoted to religion,
ar * science, and charity, and hospitals and lazarettos, shall, as
^ ar M P 088 ^ 6 an d on condition that they are not used for
military purposes, be spared in bombardments. The besieged
must notify his adversary of such buildings, which are to be

1 The Correspondence in given in the Ctrman Official Account of the War in
South Africa (authorised translation by Colonel Waters), pp. 262-4 ; see also
Maurice, Official History, VoL II, pp 162-3 ; Times History, Vol. HI, pp.
478-9.

* See Conan Doyle, Great Boer War, pp. 3.V> ff. for a description of the
fighting at Paardeberg.

1 Howard C. Hillegas, With the Boer Force*, pp. 288-9.

4 Ariga, op. cit. pp. 276-9.

SIEGES AND BOMBAH1 >MI \'TS 181

indicated by a special sign. What this sign is to be, is not
stated. For naval bombardment a stereotyped sign is laid
down in the Convention viz., large, stiff, rectangular panels,
<lt\i<lod diagonally into two painted triangular portions, the
hUi-k. the lower white." 1 In land war,

lag or sign would have to be specially arranged between
the belligerents, The hospitals referred to in this article are
civil hospitals, not t h< military hospitals which are protected
by the Geneva Convei It appears to be usual, however,

to hoist the Geneva flag with the Red Cross over such hospitals
in bombarded cities, but this practice is nou tly for-

bidden In \ Jl t i ( ieneva Convention of 1906.*

There is hardly any siege of moo!* -m times in which someThaabeU
complaint about the shelling of the hospitals has not been pSrif^H
made. Trochu and von Moltke waxed hot on the subject at pitab fo

1-71 Trochu complained that the Prussian fire was *
persistently directed in such a line and at such an angle as to
strike the "hospitals imraemorially consecrated to the public
weal," such as la Salpetriere, le Val-de-Graco, etc., and to
danger th- lives of th- n, women, and incurables tin-r-

am 1 he requested that orders should be issued by the Prussian
authorities to ensure to these asylums the respect due to the
flags displayed on their domes. In reply, Moltke emphatically
protested against the insinuation that the hospitals were

-rately shelled ; the damage done to them was accidental
and even this would be avoidable as soon as a clearer atmos-
phere and shorter ranges allowed of the recognition of the flags
on the buildings. 1

It is inconceivable that the high militan ties of the

investing armies can have sanctioned the shelling O f th<>
hospitals, but it i <piite possible that some of the gunners may
have used the lofty domes and buildings, all the more pmmn
f<r the flags they flew, to range their fire. Sir William Russell,
a German sympathiser, wrote from Versailles to The Time* on
8th February L871:

I am informed that a special fire is likely to be directed agai
the Invalided the dome and front of which form very contpictiooA

1 lUgtic II RR jv lift. See RoaEU, op. <*. MC. 106&

* Oman Official //Mtory. Part U, VoL II, Appendix I4H.

1 82 WAR RIGHTS ON LAND CHAP.

marks in the landscape of Paris as seen from the plateau of Meudon.
This information comes from Prussian officers. 1

It is remarkable, too, that the hospital of the Val-dc-Grftce,
which had come in for an unpleasant share of the German L;UM
ners' attentions of malice, said the French, owing to the fogs,
said the Germans was left quite unmolested from the day
when General Trochu declared that he would transfer to this
hospital the German wounded prisoners of war. 2 The artiller-
ists' aim was, no doubt, impeded by the heavy smoke from the
old black powder, as it was at Sebastopol, where a hospital was
struck by a shell and burnt. 8 It may have been, too, that the
Paris hospitals were so scattered through the city as to make it
Hospitals difficult to avoid hitting them. The Turks complained that
' the Russian gunners shelled the hospitals in Rustchuk in 1877,

localised ^^ j) e Martens points out that this was quite unavoidable,
ae to make

They had organised some hospitals flying the Red Crescent in the
possible, centre of the town, so that, to spare the privileged places, the
Russians would have had to renounce every act of hostility. 4

At Santiago, too, in 1898, it is said that " one whole quarter
of the town facing the American lines seemed to be stuck all
over with hospital flags, so that if it came to even the most
legitimate form of bombardment the hospitals would inevitably
be struck"; 6 and the city generally appears to have fairly
bristled with white flags, claiming protection for missions. A
besieger has certainly the right to demand that a fortified city
shall not be so studded with hospitals as to make bombardment
impracticable. He cannot, indeed, claim, as Cronje did at
Mafeking, that only one building shall be neutralised 6 there
is no authority in conventional or uncoded war law for such a
claim but he can claim that the privileged buildings shall
not be so numerous and so disseminated as to prejudice his
general war right of bombardment. As Sir Henry Maine
observes, " the most abundant good faith should be used in the

1 Quoted, Cassell's Hilary* VoL II, p. 194.

a Fillet, op. cit. p. 112. ' Russell, Crimea, p. 220.

De Martens, op. cU. p. 400.

J. B. Atkins, The War in Cuba, p. 163.

See Article by M. Arthur Desjardins in Revue des Deux Monde*, 1st
March, 1900, p. 52. He says Cronje's contention was "too narrow an
interpreUtion of the Convention [of Genera].*'

v SIEGES AND BOMBARDMENTS 183

localisation and use of these beneficent mitigations of the ha
ships of war." l The question of localisation was raised at the
last siege of Port Arthur, togeth another of equally

great interest General Stoeesel complained that the hospitals
were being shelled and a meeting was arranged between re-
presentatives of the Japanese and Russian stafls, to settle the
measures which ought to be taken to safeguard the buildings.
As a result of this conference, a map showing the situation of
the hospitals was forwarded to the Chief of the Japanese Staff,
who acknowledged its receipt in a letter containing the following
words :

Availing myself of this opportunity, I have the honour of
explaining to you, onoe for all, the position we take with regard to

ing the hospitals out of danger daring the bombardment . !' .',"' '

As stated in the letter of General Baron Nogi to hi. Buff in
Excellency General Stoeasel, dated 16th inat., the Japanese army 19 *
does not under any circumstances range iu artillery intentionally
against hospitals displaying the sign of the Red Cross, but as the
unga marked on the plan as hospitals are situated in the midst
to close to, those which we deem it essential to bombard,
we cannot be absolutely certain that the shells will not touch them
by accident owing to the deviation of our ordnance.

As declared by the delegate of oar army in the negotiations
of tli,. 1 Mh mat, the fact of our receiving the plan does not imply
our acceptance of the obligation of not firing intentionally upon the
buildings marked as hospitals. We reserve the right to range
oar gun* on such of these buildings as come under the following

(a) If we are informed or have observed directly that a particular

ling is not actually used as a hospital ;

(6) If we learn by the same means that there is a violation of the
Geneva Convention with regard to a particular building, although
being actually used as a hospital 1

In th. above minute, in which Professor Ariga concurred,
two distinct points are brought out, both of great interest and
nnjHutance f >r future bombardments. First, if the besieged
choose to establish hospitals in dangerous proximity to buildings
containing war maUritl or supplies, it is he and not the besieger
who is chargeable with any damage incidentally caused to the
l>y the legitimate bombardment of the latter. The

1 Maine, /utoriMfioM/ Lam, p. MS.

Arigm. <*. c* p. 2W.

184 WAR RIGHTS ON LAND CHAP.

besieger is bound to spare hospitals, etc., " as far as possible."
He must not be deprived of his war right of bombarding a
defended city, and especially its warlike stores and such lik< ,
as a result of the defender's localisation of his hospitals.
Secondly, the fact that a building flics the Geneva flag does not
exempt it from attack if it is known, by conclusive evidence, to
be used for a warlike purpose. It will be noticed that the
Japanese proposed, in such a case, to shell the misapplied
hospital straight away not to request the Russian command-
ant to see that it was properly used. The latter course might
waste precious time, to the prejudice of the besieger's interests,
and the very fact that a building, which is really subject to
bombardment, is falsely represented as privileged and exempt,
by the hoisting of a lying flag, is in itself an additional reason
for shelling it : provided, of course, the misapplication be quite
beyond doubt. Deliberately to shell a hospital, used solely as
such, is a grave breach of the laws of war. General Schalk
Burger concentrated shell-fire on the town hall at Lady smith,
because the British had already a hospital at Imtombi camp
and he concluded, by some peculiar process of reasoning, that
the town building must therefore be used for some illegitimate
purpose, such as the storage of ammunition. As a matter of
fact, it was used, properly and naturally, as a temporary
hospital a kind of clearing hospital but Sir George White,
who had other controversies with the Boer General about this
time, adopted the line of least resistance in this question of the
hospital and simply moved it from the town-hall to a ravine out
of the line of fire. 1

War The burning church is as much an essential feature of the

|* conventional battle-picture as the impossible, prancing general

ih- ' waving a sword of no known sealed pattern. No sane

m Y belligerent would, it is needless to say, waste good shell on an

churches : innocuous church, but if his enemy choose to take up his

quarters in or near one, then it entirely loses its privileged

(1) they character and becomes simply a defended building. Churches

{^"oom 01 have been battered to pieces ere this by the most devout com-

pied ; mandors. In the bloody fight at Aspern, the church " was made

1 Times History, VoL III, p. 162 ; see H.H.S. Pearse's Fowr Months Besieged,
pp.89ff.

SIEGES AND BOMBARDMENTS 185

rn to act as a citadel for both tide*. It was almost the
only port of the village left in the possession of the Austrian*

10 end of the first da/s fighting, and after again changing
hands on the second day, tho Austrian commander finally
ordered the wall of the yard to be pulled down and the church
itself hi i nit, to deprive the French of it* shelter if they again
recapturtil ih, village." 1 At Froeschwiller village, where was
th.- i. . the church was shelled and then

burnt down after a fearful hand-to-hand combat had taken place

i its walk" 1 Tho church at Qravelotte was also the
centre of a desperate struggle, and after the battle its defenders
lay heaped on the floor and round the altar. 1 In the village of
N > ily. outside Mctz, the very ancient and beautiful church
was, says the Da\ly\Xew* correspondent, " pounded with shells
more severely than any building I have ever seen. The French
pelted it on one side, the Prussians on th* ..th. -r. " * One of the
fiercest encounters in the sorties from Met* raged round a
convent and church of the Sisters of Providence, between
Metz and Peltre. " Their church became a churn. 1- house; the
very sanctuary was stained with blood, and the house of mercy
was turned into the house of vengeance. The Prussians craved,
the French gave, no quarter, and ?' ere was none/' 6 At

l*ttle of Caney (1898), the Spaniards maintained a des-
perate resistance from tho security of a stone church, the walls
of which were loopholed for rifle fire. 6 If a commander of a (2) nor
besieged town uses a church as a stronghold (as the British *
troops did at Wakkc ret room in 188 1), 7 or as a store-house for
ammunition or military stores) (as Osman, devoutest of
Mahommedans, used the Plevna mosques), 8 or as an observatory
for defence purposes (as the Prussians alleged that the French
used the Cathedral towers at Metz, Strausburg, and Toul),
besieger has certainly a right to shell the building. And he is not

Clary, Mmar Tactic* (1880), p. 279.

' Hotter. /Vtmeo./VMM War, Vol I, p. 317

/ vii/y A'CIM War Ovrupmdm*, p. : Ibid. p. m

Holier, Fnutco- Pru**a* War, Vol. II, pi 100.

Titherington, op. fit. p. 888.

Bellain, TYwmw/ War y 1880-81, p. 355.

Y Herbert, Dtfmt* <tf Pbmto, &. 282, 310.
'<; T Robiiwm.BrtmyB/o/Jtfe*, p. 10B ; fr^ibramck im
p. 90 ; OMwir* //i-ory, Vol. I. p. 197.

1 86 WAR RIGHTS ON LAND CHAP.

for damages caused to churches and the other kinds
of buildings referred to in art id. XXVII, through th. n
proximity to buildings which are subject to bombardim-nt.
Over and over again churches, monuments, artistic and scion t ill,-
institutions, have suffered in bombardments, and it is impossible
to say whether the damage could have been avoided. The
Petersburg churrhrs \\vro hit by the Federal shells in 1864-5
and had to be closed. 1 In the Franco-German war, the Abbey
of St. Denis was knocked to pieces by 200 shells ; 2 the beam if id
cathedral of Strassburg was badly damaged ; 8 the Gothic chapel
of St. Gengoulph at Toul (dating from 814 A.D.) was ruined ; 4
the churches of Longwy, 6 Peronne, 6 and Bitsche, 7 were made
shdiingof heaps of stones and rubbish ; not only the Invalides and the
!irvt!3to hospital but the Sorbonne, the Panthdon, the School of Law,
art and ft ud the Garden of Medical Botany were shelled during the
bombardment of Paris. 8 The French themselves shelled t he-
splendid palace of St. Cloud, which was occupied by a number
of Prussian officers during the investment.* But the outstand-
ing instance of destruction of this kind is that of the Library
at Strassburg, when 400,000 volumes and 2,400 manuscripts
were destroyed by the German cannon. 10 It is hardly a fanciful
anticipation to say that this great world-loss will make the war
of 1870-1 memorable when the politics which led to it, and the
names of its battles, and leaders, are forgotten. One can con-
ceive, perhaps dimly, how it will be regarded by some future
generation, in whose eyes war is nothing but a long discarded
folly, like " trial by battle " in ours, one of the childish things
which nations put off when they came to manhood. It will be
a wit-mark to such a distant generation, a thing for wonder and

1 Captain R. E. Lee, Recollection* and Letters of General R. E. Lee,
p. 134.

' Bonfiia, op. cit. BCC. 1085, note.

Hoder, Franco- Prussian War, Vol. II, p. 70 ; Edwards, op. cit. p. l
Cassell's History, Vol. I, p. 198. Hozier, op. cit. Vol. II, p. 229.

Edward*, op. cit. p. 183. 7 Cassell's History, VoL I, p. 200.
8 BonfiU, op. dt. sec. 1085, note ; Hozier, op. cit. VoL II, p. 258.

Caasell's History, VoL I, p. 381.

10 Bonfils, op. cit. sec. 1085, note. 8il II- :;. ll/ r says of the burning
of the library " Since the apocryphal burning of the library of Alexandria,
perhaps no equally irreparable loss has occurred." (Franco- Prussian War,
VoL II, p. 71).

v SIEGES AND BOMBARDMENTS 187

and to provoke the sense of complacent superiority, that
men could actually once have given the pricelc** treasures of
the StnuMburg Library to the flames as a mere incident of t
egregiously stupid methods of settling their international

i. it- '.\.ir with Russia, the Japanese took especial care
pare t h- imjterial mausoleums and sacred towns of Manchuria.

they had perforce to shell Liao-yang, as the enemy had \*
constructed defences around it and offered a determined resis-
tance, After its capture, however, an order was issued to the
troops that they were not to enter the town without a special
pass, and if any considerable bodies wished to inspect the
monuments, they were to do so under the supervision of an
officer, who was not to allow them to break ranks. 1 After the
battle of Mukden, the 53rd Reserve Regiment of Infantry was
specially commissioned to protect the mausoleum of Yung- Ling. 1
town of Mukden itself was saved from damage through the
action of the Japanese authorities in persuading the 1,100
Russian soldiers, who held it after the great battle, to lay down
: arms, and the Japanese troops were strictly forbidden to
take up quarters in the town.* The Chinese Government was
so impressed and grat< tul t*r the care which the Japanese took
to protect the town and imperial palace of Mukden the
"Moscow" of China that it allowed the professors of the

rsity access to the monuments and the imj'
library of ttu> city, for the purpose of scientific and historical
research. Professor Ariga remarks that " it was one of the
most agreeable remembrances which he brought back from
theatre of war, that he was able, during his leisure from his
professional duties, to take part in this study.' '

The destruction of the Summer Palace at Pekin in 1860 and
that of the Mahdi's Tomb at Omdurman in 1898 were delib- J^JJjJ^
erateacts of policy, intended in the one case to awe then i

Chinese into respect for the British power, in the other to re- ? an**?
move a constant and tangible source of incitement for
fanatical dervishes. These cases hardly come within the pur-
view of the war law governing civilised conflicts, and one need

1 Arifft, op. cO. pp. 47t> Ibid. p. 478.

IKL pp. 480-* /M. pp. 484-A.

1 88 WAR RIGHTS ON LAND CHAP.

not, therefore, inquire too closely into Lord Wolseley's justifica-
tion of the earlier destruction. (" They might style us barbar-
ians if it pleased their vanity to do so, but we felt that for all
classes to recognise fully our superior military strength would
be the surest guarantee of peace in the future ") ; nor, on the
other hand, into Mr. Winston Churchill's condemnation of the
profanation and destruction of the Mahdi's Tomb. 1 The
(1< liberate shelling of historic monuments is a wanton outrage
on civilisation as well as a clear breach of war law. When t h<>
French under Oudinot besieged Rome in 1849, they were care-
ful to spare the monuments and art treasures in their bom-
bardment, although the Cardinals, it is said, pressed for an
unsparing bombardment. Their treatment of the Imperial City
compares very favourably with that accorded to Venice by the
Austrians in the same year; the latter city was bombanl* <1
with red-hot balls from high-angle guns and a great destruc-
tion of churches, hospitals, and priceless frescoes resulted. 2
Pillage. Article XXVIII forbids the pillage of a town or local i ft/
(localiU), even when taken by assault, and Article XLVII
expressly forbids pillage generally. The two articles may
conveniently be considered together. Professor Holland's note
to the later article, in the British Manual, defines pillage, or
loot, as " booty, which is not permitted," and refers to section 6
of the Army Act, which prescribes the death penalty or any
less punishment for the following offences committed by a
soldier on active service :

(1) leaving his commanding officer to go in search of plunder;

(2) committing any offence against the property or person of
any inhabitant of or resident in the country in which he is
serving ;

1 For the burning of the Summer Palace, see Lord Wolseley, The Story of a
Soldier's Lift, Vol. II, p. 74, and Lieutenant Colonel J. Cooper King, The
Story of the British Army, p. 346. For the destruction of the Mahdi's Tomb,
see Churchill, River War, Vol. II, pp. 211-4. He says the Tomb " had been
for more than ten years the most sacred and holy thing that the people of the
Soudan knew," and that it was the only fine building of any interest round
Omdurman.

3 Bolton King, History of Italian Unity, Vol I, pp. 338, 344. But
Trevelyan (Garibaldis Defence of the Roman Republic, p. 343) shows that a
good deal of damage was done to the Palaces and works of art in Oudinot's
bombardment.

v SIKGES AND BOMBARDMENTS 189

(3) breaking into any IIOIMO or oilier place in March of

1'illngo is an ancient parasite of war of which not even the
cleansing processes of modem times have been able to rid the
oly. The capture of towns bj assault has always
been its especial opportunity; witness the excesses which
accompanied the stormings of Ciudad Rodrigo, of St Sebastian,
and of Badajoz, as pictured in the pages < . The sack.

ing ! iu Allies m tin- Crimean war was almost Cttman

equally disgraceful 'To pillage and devastation they added ~-

i ltd murder/' and the measures taken by the officer* to
prevent outrage and destruction were, add* Sir William Russell,

lie feeblest and most contemptible character." * Ambalaki,
too, was shamelessly plundered in the same war. Zouaves,
Chasseurs, and Highlanders vied with one another in carrying
off the hens, ducks, clothing, etc., which they found in the aban-
doned t \\i\. \ IV nch soldier, who, in his indignation at not
tindin^ anything of value, had with great wrath devastated the
scanty and nasty-looking funir one of the houses), was

mi.; his comrades outside of the atrocities which had been
committed, and added, with the most amusing air of virtue in
th \\..iM. Ah, Messieurs, Mcssisur* ! ces brigand*, iU oni voU
taut.'" 3 The looting capacity of the Zouaves was summed up

D Irish Grenadier in the words 'Troth, if the devil was
asleep, a Zouave would stale one of his horns to keep his coffee

4 But it is questionable whether the Zouave was not sur-
passed by the Sikh of the Mutiny days in the art of ingenious
pillaging. The capture of Lucknow was succeeded by a regular
carnival of pillage ; the Sikhs began it, but it must be admitted
pean soldiers showed themselves determined not
to be outdone by th< n Indian brothers- in- amis in gang-robbery
any more than in prowess. 5 At Cawnpore things were better,

ssssrf0sssttt/irsr, ft* Section 40, A.A.,alao referred to by
totem Holland, deals with the court tatioa and procedure of Field Oeoeral
borta Martial, for trying OMB guilty of Men oflenoee at are mentioned in

Ruewll. Crimta, pp. 458, 472 : Nolan, War vWA AMMM, Vol. II, p. SSI

Rnawll. ibid, pp. 450-1.

Nolan, War witk touma, VoL II, p. 473.

Kayo and Melleeon, Hutoryo/tl* Indian Mmtimy. VoL IV, pp. 275-C

190 WAR RIGHTS ON LAND CHM

h.-iv llaM-l.M-k issued an ordi'i in \\hi.-h h<- threatened to
hang up, in their uniforms, all soldiers caught plundering.
It was only by some such drastic measure as this that the
troops could be restrained from exercising what they regarded
as their rightful privilege, dearly purchased with blood and
labour. To the discredit of the same national troops as fought
in the Crimea stands the looting of Pekin in 1860. The Fr.-n.-h
no doubt were the worse they dressed themselves in beaut i nil
female gowns and nearly every soldier donned a gorgeous
Chinese hat instead of his ke*pi but the British troops were
not far b< -hind in rapacity. One officer of the 15th Punjaul>. s
got 9,000 worth of loot, and each private soldier received a
grant of 4. Lord Wolseley, who was present as a subaltern,
was given by a French artilleryman a looted picture by Pettitot
a miniature of Boileau. 2 Forty years later the I nip. -rial
city had a further experience of the methods of the civilised
troops of the West and again she had reason to remember them :
looting and robbery, naked and unashamed, marked the second
occupation of Pekin no less than the first. 8 But on the second
occasion the pillage was at least not authorised.

Pillacein I have already spoken of the excesses committed by the
Jmneie " Jap* 0686 troops when they captured Port Arthur in 1894. The
war. murder and robbery to which they gave way on that occasion,
though quite unjustifiable, can at least be said to have resulted
from dire provocation, and find no counterpart in any other
action of theirs either in the same war or in that with Russia. 4
At Wei-hai-wei and at Makong in the Pescadores, their conduct
was unimpeachable, and when Kinchow was captured, an officer
was stationed at every store to protect the proprietor from
soldiers and coolies. 6 It is not so very long since European
commanders claimed a war right to give over to pillage a town
which had maintained its resistance until sacked, and their
view was endorsed by writers on International Law. 6 General

Kaye, Sepoy War, VoL H, pp. 387-8.

Lord Wolseley, op. cit. VoL n, pp. 77-9 ; Cooper King, op. cit. pp.
345-6.

See B. L. Putnam Weale, Indiscreet Letters from Pekin, pp. 227-280.

See Bonfils, op. cit. sec. 1227.

Holland, Studies in International Law, pp. 118-9.

See authorities referred to in Bonfila, op. cit. sec. 1227.

MKiES AND BOMBARDMENTS 191

ck, doul>l\ .|<i:ilifiod to state the umgea of war of but lima, PUTa,
give* an one of the exception* to the rule exempting private *
J.I-..JM rig tea eaptur. th.- os* : pop rig ib on ' U
battle or in storming a fortress or town/ Lieber't

Instruction* enunciate a more commendable rule of law than
that of Lincoln's (' the Staff. Article 44 prohibit*

mi. li-r jH-imlty of death " all robbery, all pillage or sacking, even
after taking a place by main force/' Ami lUuntschli's great
work, published a few years later (1868), states that it
ia not good war, to promise soldiers freedom to pillage a
place or camp, as an encouragement fur the assault*

iry to military honour," he says, "to incite soldiers
tod., th- it- <iuty by encouraging them to become brigands." 1

the confusion and fury of a storm must always \
an opportin {tillage or other excesses of which there

will be soldiers in every army who will be ready to take
advantage. "Pillage," says Sir Richard Maine, with pro-
fiiuiul truth, " is p-m-rally very easy." 1 Authorised pillage,
and pillage on the heroic scale, are no doubt no longer to be
feared. Even if Napier's suggestion that a storming party
should be followed by a select party of troops, authorised to
shoot any plum 1 TIT * has not been adopted in the many years
since he wrote, the advance in the discipline the mom/, the
genoi.il military conduct of armies have rendered impossible a
repetition <>f th. excesses which were enacted at St. Seba>
BadajoK, and Ciudad Rodrigo. It is inconceivable that any
present-day troops would shoot their officers when the latter
tried to restrain them, or that the foul lust, inunlt-r, rapacity
which seemed to transform gallant soldiers into fiends incarnate
in t he Peninsular days, are at all likely to be repeated, under any
; instances, by the educated, self-respecting, highly disci-
|.liiii-d men who formed the bulk <t m^lmi civilised armies.

1 Quoted. WhttUm (Bojd), Imtontatitmal La*, p 411. fUllcck'i
two exception* are (1) ooafiaofttiom or nizurM by way of penally for military
oflbooM ; (2) forced contribution* for the rapport of the invading armies, or *
an indemnity for the expenew of maintaining order and affording protection
to the conquered inhabitant*. I ahall deal with theae eioaptiom in a later
ohaptai

* Drvit Inlemational Cod#4, wo. 062, J /Imafioaif Lav, p. 198.

* T. lUt y. Itermalio*al Urn m Am/A Africa, p. 84.

i 9 2 WAR RIGHTS ON LAND CHAP.

I h. nil* th.it booty of war br<, -in, s ih, property of the Si n. .
not of th indi\idual soldiers who capture it, has operated to
bring a change for the better not less than the other salutary
rule, more directly due to humanitarian motives, that the per-
sonal effects of the dead, of the wounded, and of prisoners
of war, must be retained for th. -"WILTS or transmitted to their
families. 1

Gradual The general practice of pillage the high art of la marc
Imjntin ** deeply rooted in the origin of war. It has endured, in nn-
war usage broken continuity, since the days of Amraphel of Shinar and his
looting, raiders until to-day. Astute commanders like Qustavus Adol-
phus were able to see the danger which lay in allowing a liberty
which was commonly considered a divine prerogative of victor-
ious soldiers. The Swedish Army regulations of 1632 forbade
pillaging because of its bad effect on the efficiency of the
troops. 2 But when the maxim was current that " war should
support war," no general prohibition of looting was to be
expected. It was only slowly and by degrees that belligerents
came round to the view that unrestricted pillaging was likely to
undermine discipline. The restraints which were eventually
imposed were imposed rather in the interests of armies than of
populations : the victims do not seem to have counted for much
in the wars of the eighteenth century and even a little later.
One may see, side by side, a reference to the two motives which
make for restraint or looting, in a letter which Sherman ad-
dressed to a subordinate detached for clearing duties and in
which he points out that not only is the unnecessary seizure or
destruction of property unjustifiably cruel to the inhabitants,
but that it will result in the troops themselves becoming
"utterly lawless." 8

When troops lived by what they gained with their swords
like the border moss-troopers, pillage was simply in the nature
of things. Unpaid or badly paid men are hardly predisposed
to moderation amid the temptations of active service. One is
not surprised to find the Turkish troops, whose pay consisted of
uncertain trifles at uncertain intervals, giving way to pillage

1 See Fillet, op. cit. pp. 338-340.

* Hall, International Law, p. 424.

* Bowman and Irwin, Sherman and hit Campaigns, p. 126.

SIEGES AND BOMBARDMENTS 193

in Thessalay in 1897 ; l yet the Turk in naturally

ijs are different in the Turkish anny now. One is still le
surprised to find that the system of payment by loot-money, flgg*
h was at first adopted for the remuneration of the Na-
il Scouts in the South African War, was found to be so
objectionable in practice that it had speedily to be abandoned*
; > roper pay and proper equipment was undoubtedly
the rea.H4.il ..f nm. h !' the looting which occurred on the Con-
federate side in the Civil War and which on several invasions;
led to splendid chances of crushing a beaten enemy being
thrown away. At the battle of Shiloh, according to
Beau regard ' report, "officers, non-commissioned officers, and
men abandoned their colours early in the first day to pillage
the captured encampment*," and General B rax ton Bragg com-
plained equally strongly of the straggling and plundering of his
men. 1 Stonewall Jackson's success at Middleton in May, 1862,
was nullified by the misconduct of Ashby's troopers, who,
according to Dabney, " might have been seen, with a quickness
more suitable to horse-thieves than to soldiers, breaking from
the ranks, seizing each two or three of the captured horses, and
making off across the fields. Nor did the men pause until
they had carried their illegal booty to their homes, which were,
some cases, at the distance of two or three days'
:>-." * The Confederate cavalrymen had to find their own
horses, receiving no compensation for loss through disease or
capture, and it is hardly to be wondered at that they should have
tried even at the expense of their duty to replace their saddle-
galled, starving chargers from the Federals' ample stock of well-
conditioned remounts. 6 The same tendency to break ranks and
go in search of loot was exemplified, with still more disastrous
results, after Jubal Early a successful action at Cedar Creek, in
October, 1864. Early states in his despatch, speaking of his
troops' 4 But for their bad conduct, I should have destroyed
Sheridan's whole force," and again, " The victory already gained
was lost by the subsequent bad conduct of the troops, who

R.D.I. Sepumbcr-October, 1897, p. 707.

Tmtt History, VoL V, p. 407.

Memoir, tf H**ry PiBM, VoL I, p. 261.

Qooud, Hmknoo, 8tc~U Jack** VoL 1, p. SO.

Haochnott. fltoiumff /dbom VoL I, p. SM, *,*.

I 9 4 WAR RIGHTS ON LAND CHAP.

stopped in the camps to plunder." 1 The result of the
Southerners' unsoldierly conduct was that Sheridan, who had
been absent when the Confederate attack burst upon the unsus-
pecting Unionists, was able to hurry up from Washington,
riding post-haste in a wild gallop that is famous in story and song
as " Sheridan's Ride," reform his disheartened forces, and turn the
morning's disaster into a splendid victory before the sun Ml.
Men would be a little higher than the angels, if, all but starv-
ing, seldom paid, with no equipment, with uniforms like Qunga
Din's " nothing much before and rather less than 'arf of that
behind " they find themselves, by right of conquest, master of
all that they need so sorely and restrain their hands. It may
be, too, that the " thinking bayonets " who formed the rank and
file of the two great Territorial Armies who met in the Seces-
sion War had the defects of their qualities, and that initiative
and adaptability were paid for at the price of an occasional
failure in the matter of discipline. Grant's men were n>i
under-fed or badly equipped, like the Confederates, yet they
gave way to looting at Belmont. " Veterans could not have be-
haved better than they did up to the moment of reaching the
rebel camp. At this point they became demoralised from their

victory and failed to reap its full reward The moment the

camp was reached our men laid down their arms and com-
menced rummaging the tents to pick up trophies." * It is difficult
to decide whether pillage is bred more readily of failure or of
success. There are plenty of instances to show that men de-
moralised by defeat are especially prone to plunder ; like the
Sardinian troops who were crushed by Radetzky and his
Austrians at Novara in 1849 and who had to be charged by
their own cavalry to prevent their pillaging the town. 8 But
the few instances I have quoted from the Secession War show
that, in the case at least of troops who have not been hammered
by an iron discipline into that unemotional machine-mass which

1 Gordon, Reminiscences, pp. 364-9. He questions the truth of Early's
report and gives the rebutting evidence of many eye-witnesses who stated that
they saw no plundering, but on such a point, in a straggling action, negative
evidence counts for little, and the general in chief command would not be
likely to condemn his troops without reason.

1 Grant, Memoirs, p. 163.

Fyfle, Modern Swept* Vol. Ill, p. 100.

v KGES AND BOMBARDMENTS 195

in the standard and ideal of modern military training, demoral-
isation and plundering may be born of toe flash of success.
There was unquestionably a great deal of pillaging in the Se-
cession war, though one may fail to find the " sanguinary
excesses" which Calvo has condemned, 1 exoej case of

the Fort episode. The Confederates who invaded

Maryland and Pennsylvania in 1862 and 1868 displayed notable
moderation on the Union soil. On both occasions, Lee forbade
all depredations and supplies were paid fur on the spot* In
irg invasion, when Gordon occupied the town of
York, he " pledged to the town the head of any soldier who
destroyed private property/' Stonewall Jackson's scrupulous
respect for the rights of property owners may be judged from
an incident which happened on the march to Romney in
January, 1862. On one of the worst nights, the captain of a
Virginian company, on whose property a halt had happened to
be made, allowed the men to use the fence rails for camp fires ;
Jackson suspended the officer for allowing private property to be
destroyed.' Other generals, however, were less careful to pre-
vent any tendency to plunder. The Federal cavalry were
especially given to petty looting. A reliable historian records
that :

tho Richmond Examiner, Jane 27th and July 5th, 18'
printed official liste, sent by Generals Lomaz and F. Lee, of various
items of private property and personal effect* which had been taken
from Virginian homes by the Federal cavalry and which were found
" waggon-trains captured by the Confederates at Trevilian's
and at Reams 1 Stations. 4

Kilpatrick, who commanded Sheridan's cavalry in the march to
the sea, had " an invidious reputation for rapacity and lawless-
ness." But the southern "bushwhackers" or guerillas were
mi'loubtedly to blame for no small portion of the pillage whi< h
was charged to the Union soldiers. 5 It is especially difficult to

tenationnl Law m South 4/rvo, p. 82.

H. A. WhiU, Lm owl (Ac Striker* Gbft/MmMy, pp. 900, 886 ; MM> tbo
Drmptr, op. eft. Vol. U. p. 46*

Hmdmm, AowmBtf /adbcm, VoL I, p. 190.

H 397, Mte.

Wood and BdaowU, Jftrfory o/ Oe War m UU CTwfol OaiM, p. 406 (from
Cox's Mnrrk to tht Sta).

196 WAR RIGHTS ON LAND CHAP.

Difficult prevent looting when an army is moving in a hostile country
taSnJI* 111 from which the inhabitants have mostly fled, and in which
there are no civil authorities to fulfil requisitions. Th<
hare fled, abandonment of their homes by the residents of an invaded
district is "the very thing to provoke the plunderers." 1 It
was so in the Crimea, in the Seven Weeks' War, 2 and in the
Franco-German. As to the latter Mr. Sutherland Edwards
says:

All the stories of pillage told me had, on examination, resolved
themselves into that sort of thing. Troops famished, exhausted,
and at the same time excited by battle, arrive at a village from
which the panic-stricken residents have fled. The troops help
themselves and what else are they to do t 8

And the same story could be told of Sherman's march to the
sea. The civil authorities had fled and the Federal " bummers "
had to help themselves ; one cannot wonder that what began as
permissible foraging verged occasionally into unauthorised
looting. 4

Devuta- The clearing of a country of supplies, be it noted such as
pillage! 101 was carried out by Sherman and Sheridan in 1864-5 and by the
British in 1900-2 is not looting ; for the essence of loot is the
appropriation of property for the enrichment of the captor.
War necessity may demand, as I have shown, that private
property should be seized or destroyed as a means towards
overcoming the resistance of the enemy's armed forces. "If
a general can in any way," says Sir F. Maurice, "interfere
with the source from which an enemy is obtaining his supplies
of food, ammunition, and fresh men, he can diminish his fighting
power as effectually as if he broke up his organic unity in
battle." 6 And General Halleck wrote to Sherman in September
1864, " I do not approve of General Hunter's course in
burning private houses or uselessly destroying private property.
That is barbarous. But I approve of taking or destroying what
may serve as supplies to us or to the enemy's army." 6 (He was
speaking with special reference to the conditions obtaining in
the Confederate States, in which the whole country was

1 Russell, Crimea, p. 46. f Hozier, Seven WeekS War, p. 334.

Edwards, op. dt. p. 112. Sherman, Memoirs, Vol. II, p. 183.

Sir F. Maurice, War, p. 31. Sherman, Memoirs, VoL II, p. 129.

v SIEGES AND BOMBARDMENTS 197

practically the storehouse and granary of the active army,
whi.-h had no other supply-source.) But it is in such dealing
operations that loot finds the most fruitful soil for iU germina-

ind growth. It is nothing short of impossible to prevent
pillage when troops are employed, generally in small bands and

rider the command of an officer, in foraging or clearing
work over a wide region of country. The South African war
was a unique opportunity for the soldier-buccaneers and there
is evidence that the opportunity was not neglected. A brilliant

-h commander has commented on the low standard of
morality which his countrymen of the rank and file displayed as
regards lifting chickens and pigs, 1 and another writer, who
speaks from personal knowledge, states that the penalty for
looting was a " military fiction." 1 Lord Roberta himself had
to appeal for the restoration of family Bibles which had been
looted from the Boer farmhouses by the soldiers. Does not Mr.

tig's trooper, drawn from life, surely, and typical of his kind,
sing unblushingly

I wish my mother could see me now, with a fence-post under my

arm,
And a knife and spoon in my patteet that I found on a Boer

farm!

De minimi* ncn curat Ux and war law is powerless to prevent the lam-
looting of chance fowls, ducks, geese, sucking pigs, which
happens in every campaign and which the soldier regards rather
in the light of a joke, as an innocuous way of relieving his
over-wrought nerves, than as a form of theft " The hens,"
said Lee in the Secession War, " had to roost mighty high when
the Texan* were about" " According to a Confederate private
the most inoffensive animals, in the districts through which the
armies marched, developed a strange pugnacity, and if bullet
and bayonet were used against them, it was solely in self-
defence."

n.p. in.

The author tut*

are requested to pat the bodies wh

VoL II, pp.

I 9 8 WAR RIGHTS ON LAND CHAP.

Booty a* The prohibition of pillage does not extend to booty or spoil of
fromloot. war - As Baron Jomini, the President, remarked at Brussels,
" there is a kind of booty which is allowed on the field of battle,
for instance, that which consists of horses, munitions, can n<n,
etc., it is the booty gained at the cost of private pro]'
which the Committee wish to forbid." 1 Arms, equipm. nt
uniforms, horses, army stores and supplies, and public moneys
generally speaking, such things as are provided for in Army
Estimates come under the head of permissible booty. In th< list
of the " spoils of war " taken by the Japanese at Mukden and
Fushun, the following items appear: Arms, ammunition of all
sorts, engineering tools, iron wire, horseshoes, clothing,
accoutrements, machinery for coal mining, timber, horses, bread,
fin 1, forage, cereals, millet, beans, unrefined salt, preserved
provisions, oxen, tents, beds, stoves, telephones, balloon-waggons,
and ropes. 2 Cash belonging to the public Treasury is always
subject to seizure ; the Germans appropriated very large sums
which they found in Strassburg and Toul in 1870. 8 They also
seized tobacco on the ground that it was a State monopoly. A
tobacco-manufactory at Dieppe was made the source of con-
siderable profit to the invaders' exchequer. It belonged, like
all such establishments, to the State and " General von Goben
explained to the municipality that, as state property, the
tobacco-factory passed from the hands of the French to those
of the Prussian Government. As the representative of that
Government, he could not work the manufactory, neither could
he carry it away with him, and he had no wish to burn it. He
therefore proposed to sell it and (making a good guess) fixed
the value at the round sum of 100,000 francs. The municipality
protested against the exorbitancy of the demand, which was
ultimately reduced to 75,000 francs. Part of the money was
paid down at once and the rest a day or two after." 4 Similarly

1 Brussels B.B. p. 298. See Oppenheim, International Law, Vol. II,
p. 141.

3 Kinkodo Company's Rwno-Japanete War, pp. 1096-8.

Hosier, Franco- Pruuian War, VoL II, pp. 72, 74. The British Official
Field Service Regulation, Part II (Organisation and Administration), of 1909
lay down (section 37 (3)) that " public money belonging to a hostile Govern-
ment will be appropriated as directed by the Commander-in-Chief."

4 Hozier, Franco- Prussian War, VoL II, p. 212.

SIEGES AND BOMBARDMENTS 199

in the Seven Weeks' War, tobacco being a
monopoly in Austria, twenty-seven million e%an which
captured on the occupation of Prague, were oonftenated for the
benefit of the Prussian troops, and at Gating 60,000 worth of
cigar* were confiscated. 1 In the Secession War the Federals
seised cotton in the Southern States on the ground that, though
strictly private property, it had become practically Bute
property, being the means by which the rebellion was main-
tained l*rty be such that it ministers directly to the
strength of the enemy and its possession cUon* enables him to
supply himself with the munitions of war and to continue the
struggle, then it may be confiscated." * The case of the cotton
in th' ( 'ml War was practically tui y$mn$ and is hardly likely
to arise in any tut are war. State property which cannot be
turned to warlike uses is not confisoable. No commander
would to-day pack a famous library into his army- waggons and
carry it off as spoil of war, as the Palatinate library at
Heidelberg was carried off to the Vatican ; or, like Napoleon
iu Italy, ransack an invaded country for bronzes and marbles
which had endured the warfare of the middle ages only to
become at last the booty of a civilised nation. Assuredly the
better part was that chosen by England in 1812, when she
restored to the Academy of Arts at Philadelphia a collection of
Italian paintings and prints which a British vessel had
captured at sea. " The arts and sciences," so ran the document
relating to the restoration, " are considered not as the peculium
of this or that nation, but as the property of mankind at
largo."* The Germans adopted an equally commendable
attitude in 1870-1 with respect to scientific and artistic
collections: not a single piece of Sevres china was appro-
priated by them. 4

Private property is exempt from loot, but it must be
fully premised that by loot is meant the definitive appropriation Srorr of
of movable property for the purpose of the enrichment of the j**^j,
captor. 8 As I have shown in the last chapter, the imperative

> Boy,!' Waeftton'e h*tr*mti 9 mmt Lm* t sec. 34* b,

1 Hall, 7ftJ0ms*MNMl o, p. *** Holt. ' Fillet, op. rW, p, 3JD, Mfe.

On this question of booty it appears to me that Dr. Uwrraoe to certainly
in error. He defines booty as " prirafe morablee taken from UM lot in the

200 WAR RIGHTS ON LAND CHAP.

rity of war justifies the seizure or destruction of all kinds
of property, and I shall show later that the war rights of
requisition and contribution constitute a further limitation on
the rule exempting private property from seizure. It must
also be borne in mind that under the Hague Article LJII,
second paragraph, certain kinds of private property are subject
to seizure on the principle that they may be applied to warlike
purposes and may therefore be taken by a belligerent for his
own immediate use or to keep them from being used by the
enemy. They arc things of such a nature that they cannot be
safely left at large, as it were, in time of war. It is a natural
precaution for an invader to sequestrate warlike instruments
which might be used against him ; he may quite properly order
the inhabitants of an occupied district, e.g., to deliver up their
arms, or he may remove private stocks of dynamite or gun-cot-
ton. But any extension of the practice of sequestrating private
property is fraught with danger. The Germans appear to have
overstepped the mark in this respect in 1870-1. As Geffcken
remarks " What was styled, in the second half of the Franco-
German war, making safe or putting out of harm's way (le sauve-
tage ou la mise en lieu sur) was a grave abuse, which the better
kind of German officers deplored and condemned as well on
account of disciplinary objections." 1 It is said that the value
of the movable property taken, apart from requisitions, by the
The German invaders, amounted to over ten million sterling. 2 The
o?officers' ( l ue8tlon f suc h private property as officers' arms, uniforms, and
equipment is a little doubtful, but would appear to come under
owned! y ** ne g enera l TU ^ e exempting private property which may be used
for a warlike purpose from final appropriation, but subjecting it
to sequestration. Professor Bonfils lays down in general terms
that, " the right of booty extends only to the fortune of the
belligerent State, to the arms and equipment of the defeated

course of such warlike operations on land as the capture of a camp or th<-
storming of a fort." I think it is quite clear from Article LIII (and that
article, like the whole chapter of which it forms part, is applicable to invasion
as well as occupation), that private property which can be used for warlike
purposes can only be stqueMrated ; and from Article XL VI, that private
property which cannot be so used is entirely exempt from seizure.

1 Quoted, Bonfils, op. cit. sec. 1228.

* Bonfils, op. cit. sec. 1229.

v SIEGES AND BOMBARDMENTS 201

troops, and to contraband of war." l Contraband of war ii a
dangerous phraaa to apply outaide of iU proper element of
maritime war. Mr. Hall states more specifically that " arms and

rw in the possession of the enemy's force
as booty, although they may be private property." I
agree with this view. Article LIII (which I tihall deal with
more fully in its proper place) makes it clear that it is only
Government property which is oonfiscable; arms and other
article* which would be claimed as contraband of war at sea, and
therefore subject to capture, do not pass to the captor on land,
i f t hey are owned by private individuals. The enemy may
them, but he must either restore them or pay compensation.

BonfiU, op. of. wo. 12SQ.

H*ll, Irtermttionai Law, p. 436.

CHAPTER VI

SPIES

Conventional law of war, Hague Rlglement, Articles XXIX to

XXXI.

ARTICLE XXIX.

A person can only be considered a spy when, acting
clandestinely or on false pretences, he obtains, or endeavours
to obtain, information in the zone of operations of a
belligerent, with the intention of communicating it to the
hostile party.

Thus, soldiers not wearing a disguise who have penetrated
into the zone of operations of the hostile army, for the
purpose of obtaining information, are not considered spies.
Similarly, the following are not considered spies : Soldiers
and civilians, carrying out their mission openly, intrusted
with the delivery of despatches intended either for their own
army or for the enemy's army. To this class belong likewise
persons sent in balloons for the purpose of carrying
despatches and, generally, of maintaining communications
between the different parts of an army or a territory.

ARTICLE XXX.

A spy taken in the act shall not be punished without
previous trial.

ARTICLE XXXI.

A spy who, after rejoining the army to which he belongs,
is subsequently captured by the enemy, is treated as a
prisoner of war, and incurs no responsibility for his previous
acts of espionage.

Con- ARTICLE XXIX lays down the conditions precedent which
which 8 establish the character of the spy, in the esoteric sense of the

word. They are:

quality of (i) the obtaining or seeking to obtain military information for
the belligerent employing him ;

(2) doing so clandestinely or under false presences ; and

(3) doing so in the zone of operations of the other belligerent.

SPIES 203

nose three condition* are expressly specified in the firat
paragraph of the article ; but, perhaps through aome error in
drnt neeond paragraph goes on to apeak of nimanjtrt

and dupatok tervrs (who do not aeek information at all and are

vfore lacking in the essential condition No. (1) above), and
lays down that such persona are not oonaidered spiea if they
carry out their mission openly ; implying, at a neoeaaary inference
that, if they do not carry out their mission openly, they may be
regarded aa spies. One can therefore only conclude that, as
onventional war law of the subject stands, the following
proviso most be added to the three conditions matttiooed above*
namely :

(4) Messengers and despatch-bearer* are assimilated to spies if
they come under condition* (2) and (3).

I shall deal with this fourth class presently.

The essence of spying is false pretences. The philosophy of MM
the matter narrows itself down, one may almost say, to a philo- %
sophy of clothes : Heir Teufelsdrtfckh would have discoursed on
it admirably. The spy is usually a soldier who has abandoned
the recognised badge of his craft and his nation and adopted
some disguise to shield his real character and intent. He has
thrown away the insignia of his status, the evidence of his
brotherhood among fighting men, and that for a purpose which
the enemy has the greatest interest an army can have to frus-
trate. The soldier who " spies " openly is not a M spy " in the
military sense. Reconnaissance and scouting, however daring,
are not spying if there is no disguise. This point was brought
out clearly at the Brussels Conference, the Protocols of which
show that the delegates were agreed that soldiers wearing uni-
form " are considered aa patrols who are lawfully reconnoitring ;
but if, in order to do this, they put on the uniform of the
enemy, or disguise themselves in any manner whatever, they
are considered and treated as spies." l To establish the quality
of spy in the case of a soldier, there most be disguise ; in the
case of the civilian spy, disguise is not essential the clandestine
nature of the act is sufficient condemnation. The spy in
modern war is usually a soldier who dons civilian drees, or the

RB.. p. an.

204 WAR RIGHTS ON LAND CHAP.

uniform of the enemy, or of a neutral country; and in all these
cases, he would be liable to punishment, apart from this article,
for assuming a disguise to further a hostile act. The soldier
who creeps, disguised, into the enemy's lines to learn his strength
and dispositions, is a far more dangerous factor in war , than he
who does the same to carry out an act of direct hostility, and
it is for this reason that spies are punished with peculiar
severity. Spying is not criminal that follows from Article
XXXI, which relieves the spy who has regained his own army
from any further liability, which he would not escape had he
committed a breach of the laws of war.* The punishment of
the spy is solely preventive Abschreckungsmittcl, to use
Lueder's term a means of deterring others from following his
Spying example. Many jurists regard the spy as necessarily tainted
sarily dis- ^h dishonour. " It is legitimate," says Hall, " to employ spies ;
but to be a spy is regarded as dishonourable, the methods of
obtaining information which are used being often such that an
honourable man cannot employ them." 2 But if it is dishonour-
able to be a spy, surely it is more dishonourable to employ one ?
For the spy at least does grown man's work and risks his life
under conditions which try the heart, brain, and nerves beyond
any other phase of warfare. To be either principal or agent
in the matter must be dishonourable, or neither is dishonourable.
At one time, no doubt, the spy was a man who acted solely for
gain and risked his usually worthless neck for sordid motives.
But the spy of to-day is not seldom an eminent soldier, to whom
the dangerous and difficult task has been entrusted in virtue of
some peculiar capacity of his for such work. The reproach
which attaches to the term in its peace significance seems
somehow to hang about it in the very different circumstances
of war. Analogy association is probably responsible for the

1 It is somewhat anomalous that the spy, who is more severely punished
than the soldier who disguises himself for some overt hostile act, should have
this advantage over the latter, that once his act of espionage is finished he is
absolutely immune, while the other is still liable to be punished. The spy
may have been recognised by the enemy while acting as such, and having
escaped, be subsequently captured, but he cannot then be penalised for that
act of spying. His success purges his " offence," which is not a breach of the
laws of war, as is, say, assuming the enemy's uniform for a hostile end.

* Hall, International Law, p. 538. See, on the other hand, Lawrence,
International Law, pp. 427-8, and the quotation there from Napier.

vi SPIES 205

idea that the war-spy's calling dishonours him: "company,
villainous company, hath been the spoil " of the word and per-
haps it will keep its had significance to the end of time. Tet
every nation employs spies ; were a nation so quixotic as to
refrain from doing so, it might as well sheathe its sword for
ever, says Lord Wolseley. 1 " Spies," says an American military
writer, " are indispensably necessary to a general ; and, other
things being equal, that commander will be victorious who has
the best secret service." 1 Great commanders have thought it
no dishonour to essay the role. Catinat disguised himself as a
coal-heaver, Montluo as a cook, to spy out the enemy's land. 1
Ashby, the Confederate cavalry leader, Jeb Stuart's predecessor
and all but equal, first recommended himself to Stonewall
Jackson by visiting the Federal lines as a horse doctor. 4
General Nathaniel Lyon visited the Confederate camp at St.
Louis in disguise before he attacked and captured it.' These
were honourable men and soldiers, and it is surprising to find a
try historian like Sir Henry Uozier declaring, in face of
such instances, that " spies have a dangerous task and not an
honourable one." 6 The fact is that the spy is very much in
the same position as the revolutionist ; both risk everything on
the chance of success and no mercy is shown to either, if he
(ails. In the Franco- Prussian war, the Germans made an effort Appnoia-
to improve the position of the military spy. They organised

an " Intelligence Department " with different grades and good gMj
pay, and by this means, says Homer, " the reproach associated
espionage was taken away/' 7 It would seem that the
Japanese, too, are ready to break with the traditional view as
to the spy's calling. One who went through Kuropatkin's by U*
campaign in Manchuria has recorded the following instructive *" ptniM
incid-

To mark their appreciation of espionage as a distinct branch of
honourable warfare, the Japanese did a carious thing after the

Lord WolMley, Soldi** Pocktt Book, p. 81.
OoloMlA. L. Wagmr, Street o/8**rity and Infr-matto*, p. 181.
am* OufcMu. p. 145.

yam, VOL i, p. m

w^gMT, e> sft. *> in

Hodor, &M Wtthf Ifar, p. 81

Boater, Franco Pr*uia* War, VoL U, p. 101

206 WAR RIGHTS ON LAND CHAP.

battle of Liao-Yang. They captured a Russian spy dressed as a
Chinaman, and after shooting him, passed into the Russian lines a
communication in which they hailed him as a brave man, and ex-
pressed the hope that the Russian troops held many others as brave
as he. 1

The bearing of Article XXIX may, I think, be aptly illus-
pying trated by the case of two American officers who did valuable
secret service work for their country in the war of 1898. The
one, Lieutenant Victor Blue, United States Navy, made a
" daring journey of seventy miles through the enemy's country "
in Cuba, for the purpose of discovering whether Admiral
Cervera's ships lay in the blockaded harbour of Santiago or not
He wore his uniform and side-arms, and, therefore, had he been
captured, he would have been entitled to the privilege of a
prisoner of war. 2 The other, Lieutenant H. H. Whitney, of the
Fourth Artillery, shipped as a common sailor on a British
tramp steamer at St. Thomas in the Danish West Indies, landed
at Ponce, Porto Rico, and explored the interior of the island,
gaining valuable information. 8 As he was disguised, he would
have been treated as a spy if taken. I have already mention* <1
the case of two Japanese General Staff Officers who were cap-
tured and executed for endeavouring to blow up a bridge in
the Russian rear in 1904, being disguised as Chinamen. 4
They were not technically spies, for they were not collecting
information, but the Japanese army made frequent use of spies
during the war. It was even said that the " Chinese coolies " who
were employed by the Russians to dig holes in which to plant
mines across the Isthmus of Liatung (Port Arthur) were Japa-
nese soldiers in disguise. 6 But at times they chose to carry
out their reconnaissance or secret service work without the aid
of disguise. Thus :

On July 1 2, two Japanese officers were arrested by the Russians,
having been overtaken by daylight in examining the defences
before Liaoyang. These officers, being in uniform, were treated
as prisoners of war and sent west by rail in the usual way. 6

1 DougUa Story, The Campaign with Kuropatkin, p. 177.
* Titherington, Spanith-American War, pp. 197-8.

3 Ibid. p. 336 ; Wagner, Service of Security and Information, p. 180.

4 See p. 110 supra. ' T. Co wen, Russo-Japanese War, p. 287.

6 Reports of Military Observers Attached to the Armies in Manchuria, by
American Officers, p. 160.

vi SPIES 207

For some future military historian who will devote hi* at ten- HM
tion to the development and history of spying, as a measure of ^JJJJJ^
warfare, there is a rich field of material in the American Civil tlJCL-
War. Thespiesin that war "scouts" they were called were -kmw * r '
specialised men, like the British Intelligence Officers in the
Peninsula, but played an even more important part than the
latter and were constantly employed by the commanders on
both sides, whose combinations and strategy were founded very
largely on the information brought back by their trained spies.
Generally they were organised in separate battalions or com-
panies. Sheridan, for instance, had a battalion of sooute,
commanded by a Major H. K. Young, 1st Rhode Island
Infantry, who were disguised in Confederate uniforms whenever
necessary and paid from the Secret Service Fund 1 Federal
Cavalry regiments had a " scouting squad," clad in " butternut " or
" Confederate grey." * On the Confederate side too, the enemy's
uniform was the disguise generally adopted. J. R Gordon had
a very useful M scout" "young George of Virginia," who
passed through many a perilous coil to die long after of old age.
" He always," says Gordon, " wore his Confederate grey jacket,
which would protect him from the penalty of death as a spy, if
he should be captured Rut he also wore, when on his scouting
expeditions, a pale blue overcoat captured from the Union
Army." 9 He was never captured and so one cannot tell
whether the Federal authorities would have been disposed to
acquit him of spying in virtue of a uniform which could not be
seen. It is at least extremely doubtful. The American In-
sJmdtoiu define a spy as " a person who secretly, in disgui*
under false pretence, seeks information with the intention of
communicating it to the enemy " (paragraph 88), Gordon's
scout was undeniably disguised, whatever he wore underneath
the disguise, and this paragraph would certainly be a warrant
is condemnation. Had he fallen into Sherman's hands, he
would assuredly have been treated as a spy, for Sherman went,
if anything, beyond the Instructions in his interpretation of the
term 1 he said, " any person in an insurgent district cor-

1 Shtrkka, *<*, Vol. II, pp. 1-i

VUUnl, Mtmoin, VoL I. |t fl

Ootdoo, fitmmiwtmtn, p. *.

208 WAR RIGHTS ON LAND CHAP.

Undue ex- responds or trades with an enemy, he or she, becomes a spy." l
53?" A person who trades with the enemy is not a spy within the
applica- meaning of the word in war law ; though, of course, he may be
the term liable to punishment for contravening the martial law regula-
41 P7-" tions of the occupying army. (I shall show, too, in Chapter XI,
that in their war right to punish the inhabitants of an occupied
district for " war treason," commanders possess a power which
makes the restricted scope and significance given to the term
41 spy " by conventional war law a matter of little practical
moment : for the " war traitor " need not be taken in the act,
to be convicted, and the manner in which he comes by the in-
formation which he transmits is immaterial.) A spy is one
who collects or (for success in the search is immaterial) seeks to
collect information, 2 and the soldier who dons a disguise for any
other purpose than seeking information cannot be classed as a
spy. If Sir Henry Hozier voices the official view of the Ger-
man authorities in the War of 1866 when he describes as a spy
anyone in disguise who cuts the enemy's telegraph wire, on the
ground that " it is equally culpable in war to prevent communi-
cation by unfair means within the lines of an army as it is to
seek to obtain the same in disguise between the enemy's sen-
tries," * then on this point as in the matter of balloonists the
Germans stretched the application of the term beyond reason
Balloon. an( ^ precedent. They claimed the right to treat as spies all
isUare persons who tried to pass out of Paris in 1870 in balloons.

Hi >t BMSJI

Those whom they captured were not actually executed but were
treated with great severity. " A. M. Nobe"court had his bal-
loon fired upon and when subsequently captured, he was con-
demned to death ; the sentence was commuted to fortress
imprisonment at Glatz." 4 The Hague Rlglement, reproducing
the decision arrived at at Brussels, has now declared expressly

1 From Sherman's instructions to his officers, issued when he assumed com*
mand of the Department of the Tennessee, October, 1863 (Bowman and
Irwin, Sherman and Hu Campaigns, p. 126).

* American Instruction*, paragraph 88. " The spy is punishable with
death by hanging by the neck, whether or not he succeed in obtaining the
information or in conveying it to the enemy." This represents the usage of
war, now turned into conventional war law by Article XXIX of the Reglement,
which speaks of Cindividu qui recueitte ou cherche a recueillir.

> Hozier, Seven Weeks' War, p. 86.

4 Hall, International Law, p. 460.

SPIES 209

against the German view, though it ha* left open the question
of balloonist* wot out to gain information. With the advent
of air-ships as engines of war, and future WATS will probably see
aeroplane* largely used for reconnaissance purposes, the ques-
A ill in all probability arise again, with new complexities
and difficulties, but at present one may leave it until air fighting

IHT..IU, - .in .i.-tu.ihty.

The invention of wireless telegraphy has added a new problem Wira
to the rh.ij h deaU with the war law regarding spies. Ijjjby

So l lestion has only arisen in connection with sea-fight- aJn

ing, but improvements and modifications ni radiography may
make the question one of great importance in land war too. In
the Russo-Japanese war the steamer Haimun, fitted with De
Forest's wireless telegraphy apparatus, followed the operations
of the fleets in the interests of a London newspaper. She was
visited by the Russian cruiser Bayan and as a result the
Russian Government circularised the neutral Powers in an offi-
cial communiqut which stated that, should any neutral vessels
be found within the Russian zone of maritime operations, having
on board correspondent* supplied with apparatus of a kind not
foreseen in existing conventions, which was used for the pur-
pose of transmitting information to the enemy, such correspon-
dents would be treated as spies and the vessels would be made
prise of war. 1 The right or wrong of the Russian pretension
need not be considered in a book devoted to land war. How
far wireless telegraphy can be adopted to spying on land
remains to be seen. A wireless installation is not a thing the
iry spy can carry with him, like a signalling lamp, and
use as he goes ; nor can it be erected secretly and with speed.
An existing station could, of course, be used, and the case
might easily arise of some civil resident living within the
tines of one belligerent who secretly transmits military in-
formation to the other by wireless. Such a person would
almost certainly be regarded as a spy, were the facts proved
against him. The only difference between his case and that
of the ordinary civilian spy is that he calls applied science
to his aid in transmitting to the enemy the information he

m UU /br tout , pp. S3-9 ; Bcofik, <p. c*.

210 WAR RIGHTS ON LAND CHAP.

has collected, instead of going with it himself or sending it
by a messenger.

The my To be condemned the spy must be taken in delido. Once he
JJjJJ^ fa has fulfilled his mission and got back to the lines of the army
the act. employing him, he sheds his dangerous character once and for all.
The famous case of Major Andre* the cause ctlebre of spying -
shows that the spy who has passed the enemy's outposts but
has not yet regained his own lines, is still liable to condemna-
tion if taken. Andre* was the intermediary between Generals
Clinton and Benedict Arnold in the negotiations which led to
the latter's defection from the American revolutionary cause
towards the end of 1780. After visiting Arnold, he had passed
through the American lines in disguise, and was returning with
secret information as to the West Point Defences, when he was
seized by some American Militiamen beyond their outposts and
within sight of the British lines. He was tried by a board of
fourteen General Officers, convened by Washington, condemned
to death, and hanged. 1 The point involved in Andre's case
arose again in the Russo-Japanese war, but this time as to non-
The military spies, with fresh complications. Many Chinese who
had acted as spies for the Russians were arrested at their homes
by the Japanese, tried, condemned, and executed. They were
not spies, says Professor Ariga, within the strict definition of
Article XXIX, for they were not taken in delicto, nor did they
collect the information they transmitted within the zone of opera-
ations of a belligerent. They were persons who were bribed by
Russian agents to watch the Japanese movements, generally
from a position outside the latter's zone of operations, and they
were all captured some time after the act of espionage
alleged against them. He concludes that such persons cannot
go scot free because they are not technically spies, and that
they are properly classifiable in a distinct category mid- way
between spies and traitors.

Professor Ariga goes on to say :
really

war- Once the fact of their having furnished information as to the

traitors, movements of our army was established we did not trouble to

examine if the case corresponded exactly to the definition of

1 Dictionary of National Biography, . v. Andr6 ; Halleck, International
Law, VoL I, p. 573 ; Risley, Law of War, p. 122.

vi SPIES in

espionage in Article XXIX of the fyUm** but
aocuMxi tfiwply as Irmlor*. Many of these individuals were arrested
at their own bomei and, in almost every case, their former actions
were invoked in proof that they had intended to continue their
treasonable practices. 1

1 his last consideration, together with the fact that the
condemned Chinete were, ao far an it appears, within thetphere
of the invader's military authority at the time of their espion-
age or treason, which diMtmguishea their case from that dis-
cussed at the Brussels Conference of 1874, when the Belgian
delegate brought up the following problem:

An inhabitant of a district not yet occupied by
the aone of operations for the purpose of collecting information,
which he transmits to his Government or to the national army.
Having fulfilled his mission, be returns home. He subsequently
fall* with his nto the hands of the enemy. Has the latter

the right to punish him!

The president replied in the negative, and another delegate
sian) said that he could not be condemned, " as he is sup-
posed not to belong to an occupied territory/' * The matter
was not definitely decided, but the opinion expressed by the
President and the Russian delegate is clearly sound If a
resident of an occupied territory transmits military information
to the dispossessed belligerent, he is guilty either of spying or
of a hostile act against the occupant amounting to war treason.'
But in the case mentioned by the Belgian representative, the
man is an ordinary civilian spy and does not, like the resident
in an occupied district, owe the duty of quiescence to the hos-
til- belligerent Once he has completed his mission, he is free
'. liability, under Arti< \ \ \ I

ility of a spy is immaterial. " The n< izen

-uiity of spying is punished just the same as the citizen of a

1 Ariga, op. cil. pp. 9M-7. * Bros** RB. p. 201.

1 SM Bluntochli. op. <*, MO. 632.-" Any penoo who Mod*, from a pUoo
occupied by the enemy, information to the army or Oov*mmot of hi*
country, with ib intention of injuring the occupying army, may be
M a traitor." And Jmmea /nrfmefioiM, paragraph 90, lay down Uutt
the dtmsB or subject of a ooontry or place invaded or oooquered gives
lmhnBSSBtftUitmGsffmm^

army, or to the army of hit Government, he b a mr^nriftr, and death fai the
penalty of his oflenoe.*

i 1'

212 WAR RIGHTS ON LAND CHAP.

Nation- belligerent State." 1 In the French expedition to Madagascar an
m^mirn- American subj ret IKUIK <1 \\Vller was sentenced to twenty years'
material, imprisonment for corresponding with the enemy. The United
States Cabinet demanded particulars of the affair, which the
French authorities refused on the ground that the matter was
one solely for their own consideration. 2 Many Chinese civil
functionaries were condemned to death by the Japanese for
spying in the war of 1904-5, and a Chinese cavalry officer, the
holder of a decoration for distinguished service, was executed
for having supplied guides to the Russian General Mistcht nk<>
on the occasion of the latter's raid in May, 1905, and for " abus-
ing his position as a Chinese officer to prolong his stay in our
camp for the purpose of collecting information for the enemy." J
The Chinese Cabinet addressed an inquiry on the subject to
the Japanese Minister at Pekin, and General Baron Kodama,
commanding in Manchuria, being asked by Tokio for an explan-
ation, gave the facts of the case and added :

It must be distinctly understood that we punish spies and traitors
severely and that we shall do the same in the future. 4

The The motive of the spy is also immaterial. He is equally

also im- culpable whether he has acted in the spirit of the purest pa-
materiaL triotism or of the pettiest self-seeking. Some of the delegates
at Brussels endeavoured to have a distinction made in the
project between " the spy who acts from patriotic feelings, and
the spy who is solely influenced by mercenary motives." The
Committee which considered the question thought that " it
would be difficult to find a text which would establish this
distinction, which, moreover, would be inoperative, as in mili-
tary law a spy, whatever may be his motive for acting in this
capacity, is handed over to justice." 5 No doubt they also took
into consideration the difficulty of proving the motive in any
case. One cannot conceive the spy who is on his trial being
other than a patriot, and an eloquent patriot too, and one horri-
fied at the imputation of base motives.

ment*of Formerly, spies were hanged. It was so in Andres case, al-
though every effort was made to persuade Washington to grant

1 Fillet, op. cit. p. 206. * Ibid. p. 206.

Ariga, op. cit. pp. 401-9. 4 Ibid. p. 409.

Brussels B.B. pp. 199, 200

slMES 213

i soldier's death ; and also in the ease of an American
officer, Captain Hale, who was condemned for spying by the

-h in the same war. 1 The severity of the punishment can
hardly be justified to-day, even as a deterrent thing done
n terrortm with the changed conditions of espionage, and
although hanging is prescribed by the American IvMrwetvmi
(paragraph 88), the shooting of spies has become more usual in
modern times. The French code of military justice provide-
either hanging or shooting, 1 but in the Franco- Prussian War
the latter punishment only appears to have been inflicted 4 In
the Anglo- Boer War and in the Russo-Japanese War spies were
shot, 5 It is difficult to find any reason for hanging spies which
would not equally be a reason for hanging the General who

ys the spy. Indeed, some jurists would restrict capital
punishment even in its milder form to cases of peculiarly dan-
gerous espionage. 6 The objection to this is that every case of

< is potentially dangerous, and, on the ground of self-
protection, commanders will hardly forgo their war-right to
inflict the extreme penalty in all cases.
The clause in Article XXIX which speaks of " soldiers or The

liana, carrying out their mission openly, charged with the*
delivery of despatches intended either for their own army or for
that of the enemy," is very difficult to follow. Such persons
would not appear to be properly mentioned in an article deal-
ing with spies. As Professor Fillet observes, " the transmission
of despatches to the enemy's army is effected by means of
and these are inviolable. It was superfluous,

1 Fillet, op. eft. p. 908.

9 Colonel Wagner eyi (So-met o/ Seewrify and I format ton, p, 139), " The

, strere punishment habitually inflicted upon captured spies U nicmsry to

protect an enemy from the operation, of foes, whom it is difficult to detect, and

>. upon wbc the tererity of the puni*hnMtrUer than iUprobabiUty mart act

sp.oft.nt, nos.

See Hosier, franco- Pramian War, VoL II, p. 103 ;
Jfste, p. 138.

As to Anglo-Bow War, see Paper, rioting to Martial Lam (Od. 981),
p, 123, which reoords that a certain Transvaal borgher was condemned to
death and shot for spying. The Boers shot native spies employed by the

British (Despagnet, op, e*. p. 345). For the JhieWij War, see Ariga,

op. ci/. pp. 394-400.

Bluntechli, op. <*. sec. 628 ; Bonfils, op. c* sec. 1103.

2i 4 WAR RIGHTS ON LAND CHAP.

therefore, to say that they must not be considered spies." 1
And as to messengers carrying despatches to their own army or
Government through the enemy's lines, they can hardly be
conceived, in any circumstances, as likely to "carry out their
mission openly." There is, it is true, a historical precedent t- >r
troops setting out for a night attack with bands playing, but
even the deathless commander who authorised this operation
would probably hesitate to commission a messenger to carry
despatches of great importance through the enemy's x<>m
and instruct him to proclaim to all and sundry what he
was about. The explanation of the clause about despatch -
bearers is quite possibly that given by Professor Fillet, who says :
" It appears to me that there has been some mistake in the
drafting of the text and that the word openly, which would have
been in place if used of persons seeking information (spies), has
no meaning when applied to messengers." 2 I am, however,
inclined to the view that what the Conference intended was
to assimilate to spies messengers seeking to pass through an
enemy's lines clandestinely or under false pretences: e.g. a
soldier in disguise, or a civilian who pretended to come on
commercial business. This view is borne out by paragraph 99
of the American Instructions, which says :

A messenger carrying written despatches or verbal messages
from one portion of the army, or from a besieged place, to another
portion of the same army, or its Government, if armed, and in the
uniform of his army, and if captured while doing so, in the territory
occupied by the enemy, is treated by the captor as a prisoner of
war. If not in uniform, nor a soldier, the circumstances must
determine the disposition that shall be made of him.

"To make sense of this provision," says M. Paul Carpenti* r,
referring to the Hague Article, " it must be taken for granted
that a courier or a non-military messenger will only be treated
as a spy if he has committed some positive act of dissimulation
or perfidy"

Whether it is right to place messengers on the same footing
as spies is extremely doubtful. The commander who captures

1 Fillet, op. cti. p. 472.

* Ibid. p. 472. Even in the case of spies proper, the word " openly "
is hardly in place ; it is an unfortunate term to use. The confusion between
despatch-bearers and spies dates back to VatteL

vi SPIES 215

them has a right, ijuite distinct from his right as regards spies,
to punish * soldiers, because they have assumed a

disguise for a hostile purpose ; if civilians, because they have
meddled with hostilities, which, so Jar at least as
war law goes, no civilian may do except in a

or De Martens says, rightly, I think: " Neither under
the usages of war observed by civilised nations, nor under the
terms of the Declaration of Brussels [u*. now, the Hague
RlgUmettt], can individuals whose sole crime has been the
transmission of letters from one division to another, be assimil-
ated to spies." l The only precedent for treating them as spies
that I can find is one from the Russo-Turkish War of 1877-8,
when the Turkish commander in Armenia seized two of the
inhabitants who were carrying a letter from one Russian

ion to another, without the least dissimulation (according
to De Martens), and had them shot as spies.*

De MmrUM, La Pair rt to Wiierrf , p. 407. Ibid. p. 406.

CHAPTER VII

FLAGS OF TRUCE

Conventional Law of War, Hague Rfylement, Articles XXXII

to XXXIV.

ARTICLE XXXII.

A person is regarded as bearing a flag of truce who has
been authorised by one of the belligerents to enter into com-
munication with the other, and who advances bearing a
white flag. He has a right to inviolability, as well as the
trumpeter, bugler, or drummer, the flag-bearer and inter-
preter who may accompany him.

ARTICLE XXXIII.

The commander to whom a flag of truce is sent is not in all
cases obliged to receive it.

He may take all the necessary steps to prevent the envoy
taking advantage of his mission to obtain information.

In case of abuse, he has the right to detain the envoy
temporarily.

ARTICLE XXXIV.

The envoy loses his rights of inviolability if it is proved in
a clear and incontestable manner that he has taken advan-
tage of his privileged position to provoke or commit an act
of treachery.

The jwrfe- THE parlementaire, or person coming to hold parley with the

JUdTWs 6 enemy under a flag of truce, is granted inviolability under

attend- Article XXXII as well as the persons who necessarily

fnVio? re accompany him the trumpeter, drummer or bugler (to attract

aWe - the enemy's attention), the flag-bearer and the interpreter;

presumably also a guide, were the employment of one necessary,

would be inviolable, and so too would be the parlementaire's

J1S

CH. vii FLAGS OF TRUCE 217

hone-holder. 1 The parbm**tairt may present himself without
any of these Attendant*, and he is still entitled to protection
by reason of his white flag. M The bearer of a flag of truce,"
says Professor Holland, " will, of course, enjoy the privileges of
although he may come unaccompanied." 1 This is speci-
fically admitted in the Hague Sub- Commission's Report (1899):
" The jNtrtosMMtotr*," it says, M may dispense with one or more of
these attendants and present himself alone, bearing a white
flag in his own hands." 1 Do Martens is, for once, in error when
he states a parUmeniairt is not inviolable unless he is
accompanied by M the traditional bugler/' " The white flag,"
he says, M is not sufficient to ensure the privileges of a
parkmentaire to any military man who approaches the enemy's
out- posts." 4 There is no warrant for this view either in usage
or convention. The usual procedure is, however, for the
parUmeniairt to come accompanied by some or all of the
persons mentioned in Article XXXII.

The blindfolding of parlemcntaires is a common expedient to BHmHnM-
pre\ r picking up information in the enemy's camp ; '^

is prescribed by the French official Service da ArmU*
Campagnt (Article 41) by the German Field Service
Regulations (paragraph 235), and by the British Field Service
Regulations, which lay down (section 94 (3) ) that

The bearer of a flag of trace, also the trumpeter, bugler, or
drummer, the flag-bearer, and the interpreter may be blind-
folded.

It is no indignity for a parUmtntaire, however high his rank, to
have his eyes bandaged. A Field-Marshal of the proudest
army in Kurope has submitted to be blindfolded. After
Sadowa, Benedek sent Field-Marshal Gablents to the King of
Prussia to treat for an armistice : he was blindfolded in passing
through the army " as is the custom of war," says Sir Henry
Hosier and, when he fell in with the King between Sadowa

op. r*. MO. 1239 ; AViepfrrmx* im L**d*r*g* t p. 96.

teatfGsftJSM/rr.| 41.

> lUguel.RR p. 147

4 D Marten*, o /trae* fa 0wrr^ p. 411. Ho to cpamkinf of UM mm of
* Turkish pmltmntoin who approached th Roian Una* afUr UM battle
near Kan in July, 1877, and WM fimi at and wmUd by ihe

218 WAR RIGHTS ON LAND CHAP.

and Chi urn, the latter at first took him for a wounded Austrian
General, and wasted some august sympathy upon him )
discovering the real facts of the case. 1 How necessary the pre-
caution is may be seen from an event of the last Anglo- Boer
War. In August, 1900, De Wet says that he sent a messenger
to the officer commanding the post at Commandohoek,
ostensibly to demand his surrender, in reality to discover the
strength of the English force. The messenger succeeded in
getting into the enemy's camp before he could be blindfolded
and brought back valuable information as to the enemy's strength
and disposition. 2

The Elglement, like the French regulation which I have
SStHbe* quoted, sanctions the temporary detention of a parlementaire
treated as wno nas managed to acquire some information of military
value. Except in so far as Article XXXIV applies to a case of
the kind I shall speak of this in a moment there is no
express authority in the chapter of the Reghment concerning
Flags of Truce, for punishing such a man as a spy. The
American Instructions (paragraph 114) state that the bearer
of a flag of truce who " abuses his sacred character " by
"surreptitiously obtaining military knowledge" is deemed a
spy. The German Kriegsbrauch im Landkriege (p. 27) states
simply that the parlementaire may be accounted guilty of
espionage ; and the French Manuel (Ch. II) that " under
certain circumstances he exposes himself to be treated as a
spy or a traitor." There may be a question as to what amounts
to obtaining information "surreptitiously" and one might
perhaps draw a distinction between the parlementaire who
merely sees what he cannot help seeing and one who (to use
Dr. Lawrence's instances) purchases plans or attempts to sketch
defences. 8 But the parlementaire' 8 mission being what it is,
any information he gains he gains more or less surreptitiously,
and if he even looks about or listens to soldiers talking around
him, he might conceivably be regarded as a spy, since he
" obtains or seeks to obtain information in the zone of the
enemy," " clandestinely or under false pretences." But, as

1 Hosier, Seven WeekS War, p. 231.
9 De Wet, Three. Year* War, p. 182.
' Lawrence, International Law, p. 447.

vii IIJVGS OF TRUC1 219

. re i nothing to prevent a

taiwt reportng to f what he has teen or heard, and the

very fact that it ia laid down in the RigUmmt that all necessary
steps may be taken to prevent his acquiring information ia

nee that the general international conscience would not
Mph<>l<i in its entirety, the view I have just mentioned 1

ho commander who receives the flag of truce to ensure that
l>oaror gains no information, whether by sight or speech,
and if he fails to take the requisite precautions, it is palpably
an Hist to treat the envoy's offence, for which his (the
commander's) contributory negligence is partly to blame, as
the very grave offence of spying. Article XXXIV is authority
for the punishment of a parUmentaire who " instigates or
commits an act of treachery/' and under " treachery " would no
doubt be reckoned some such act as obtaining military plans or
documents from some accomplice in the enemy's lines, insti-
gated to his treasonable act by the parUmtntairc. Such a case
as this would seem properly punishable as espionage, for the
spy is not the less guilty because the enemy soldier is g<
too. Similarly a parlementaire who sketches defences, in
improbable case of his being able to bribe the soldiers told off
to keep watch over him to allow him to do so, would seem to be
a spy within the meaning of the term. The original draft of
the article which came before the Brussels Conference stated
that a parlcmentairc lost inviolability if proved to have abused
his privileged position "to collect information or to incite to
trea< 'tit the words in italics were omitted on the ground

the provision was already embodied in the article dealing
with spies (Article XXIX). 1 The Hague Conferences were
silent on the subject and there is some uncertainty as to
whether a parlcnuntaire who manages to obtain some military

i nation either by looking about him or by asking the
enemy soldiers is to be considered a spy or not. It is much to
be desired that the next Hague Conference should make the

' WunUchli, <p. <*. no. 683, note.

Braawl* aa pp. 175, 908. The German military JilajaH at PTMIJI
obemiuJ that he ooald not eaaily comprehend the ereotttal treachery of a
bearer of a Hag of truce, who i. all the tine obearred by the party raaeiviaj
him," but the Belgian delegate amid that oaata of the kind were cited (do,
p.887).

220

WAR RIGHTS ON LAND

CHAP.

matter quite clear. The protocol of the Brussels Conference
the commentary on an article which is now Conventional war
law and the last line of Article XXXIII are hardly con-
sistent Under the former, the parlementaire who "collects
information " (recueillir des renseignements) is a spy and liable
to be tried and shot or hanged ; under the latter, he is only
liable to be temporarily detained if he abuses his position " to
obtain information" (pour se renseigner). Of course the
parlementaire who commits a treacherous overt act if, for
instance, by making a sudden attempt, he kills the enemy
commander, or puts the finishing touch to a previously con-
certed plan of blowing up the enemy's magazine clearly
forfeits his claim to inviolability. 1 Such treacherous acts are
immediately damaging in their effects, and a special provision
is no doubt required to deter a desperate man from abusing
his privileged position to carry them out. But spying, or
guojt-spying, stands on a different footing. Here the detention
of the envoy would prevent any ill result following from the
abuse of the flag of truce, and this consideration, together with
the fact already referred to, that it is the duty of the belliger-
ent receiving the flag of truce to prevent any possibility of its
being abused, makes one incline to the view that in none but
the very extremest cases (if he purchases plans, say, or sketches
defences) ought a parlementaire to be regarded as a spy.
A flag of A belligerent is not obliged to recognise a flag of truce in
a ^ circumstances. Military necessity may make it necessary
to refuse to admit one while a secret movement is being
executed, or in the midst of an engagement when " to suspend
the fighting at the very moment the parlementaire presents
himself, would be to risk sacrificing the victory at the decisive
moment or paralysing the pursuit." 2 Paragraph 112 of the
American Instructions states that a parlementaire can be
admitted during an engagement only exceptionally and very

1 He loses his inviolability under Article XXXIV, but apart from that
article he would lose it under the terms of Article XXIII (b) in the cases I
mention. The word " treachery " in Article XXXIV was objected to at the
first Hague Conference as being inapplicable to a crime directed at the enemy ;
but it was retained because the penal legislation of some States regards the
provoker of an act of treason as an accessory (co-auteur). (Hague I B.B.
p. 147). * Bonfils, op. til. sec. 1241.

received

drcum-

vii FLAGS OF TRUCE an

rarely, and paragraph 113 lays down that if the envoy is killed
vounded in such circumstances, no complaint can arise.
A provision similar to this last one is to be found in the
original draft for the Brussels Conference, which reads

the boaror of a flag of truce presents himself in the enemy**
tinei during a battle and U wounded or killed, it thall not be con
sklered as a violation of law. 1

The words " by accident " were inserted after the word "
in committee, but the whole article was suppressed eventually
as being likely to give rise to recriminations, owing to the
practical impossibility of proving whether the killing was
accidental or not 1 It was felt, no doubt, that although the
article represented existing usage, no useful end would be
served by drawing attention, in a diplomatic document, to what
is an inevitable mischance of hostilities, like the fortuitous
killing of a woman or child To fire on an envoy deliberately
and without warning would be a breach of war law, but if,
having presented himself and having been signalled or warned
to retire, he persists in advancing, then military necessity
would justify his being shot at 1 If a commander has the right
to refuse admission to an envoy, he must have the right to
take adequate steps to prevent the man's forcing admission
perhaps just at the critical stage of some important secret
operation.

Has a commander the right to declare beforehand that he A
will not receive a flag of truce during a specified time or until a
certain demand is acceded to? The question arose at the
siege of Paris, in 1870, when the Prussian headquarters forbade U
any communication by flag of truce until satisfaction was 1
obtained for " an accident which a messenger with a flag of
truce had to complain of " some few days before. M. Jules
Favre stigmatised the refusal to communicate by flag of truce
as " directly contrary to the rules of war," and as amounting
to " an absolute denial of those higher claims of the amenities
of warfare which necessity and humanity have always upheld." *
The question presented itself from the reverse side in the

1 Bnunb RR p, 175. IKcL pp, 287, 112.

* MAIIM, /nlcma/ioMci/ Lntf D. 188.
4 B^A K__* VoL H/pp. 218-81

222 WAR RIGHTS ON LAND CHAP.

Spanish-American War. Marshal Blanco, besieged in Havana,
tied to the American General his intention of refusing
admission to any parlementaire who might present himself.
Professor le Fur, who records the incident, holds that Blanco
was quite justified in his announcement, for " on the part of
the besieged, the refusal to admit flags of truce is equivalent to
a declaration that the fortress will not surrender; now it is
evident that a declaration of this kind is perfectly possible ; it
offers no inconvenience except to the besieged commander
himself, who may find himself forced later on to retract Ins
words and open his gates to the enemy." 1 But there may
be other reasons for sending a parlementaire than to summon
the garrison to surrender it may be necessary, for instance, to
arrange about the localisation of the hospitals and other
protected edifices ; one cannot consequently regard the reasons
given by Professor le Fur as sufficient to justify Marshal
Blanco's action. The question was brought up at Brussels
in 1874 and again at the Hague in 1899. The Brussels
Conference, despite the opposition of some of the delegates,
who insisted upon the seriousness of a general interdiction of
flags of truce, approved a text which read as follows :

A commander may declare beforehand that he will not receive
a flag of truce during a certain time. Parlementaires presenting
themselves on the side of the party which has received such a
notification, lose the right to inviolability.

This provision was suppressed by the Hague Conference.
" According to the views of the Sub-Commission," says the
Report of the latter, " the principles of international law do
not allow of a belligerent being permitted to declare that he
will not receive flags of truce, even for a specified time. At
the Brussels Conference, in 1874, this disposition was very
keenly discussed and was finally admitted only to satisfy the
German delegate, General de Voigts-Rhetz. However, the
military delegates at the Hague, and especially the German
delegate, Colonel de Gross de Schwarzhoff, appeared
to consider that the necessities of war are sufficiently met by
the discretion which it is recognised that every military chief

1 R.D.I. September-October, 1898, pp. 812-3.

vn FLAGS OF TRUC1 223

possesses, not to receive a flag of trace in all circumstances (see

first paragraph of Article XXXI U) ; they have therefore voted

all the other members of the Sub-Communion, for the

suppression of the final paragraph of the old article 44 (in the

ted above)." ' If, therefore, a jMffemtfUatrv doee

actually present himself he may be ordered back, bat there is

no a in conventional war law for the legitimacy of a

general notification that a flag of trace will not be recognised

during a prescribed period But the practice is not expressly

<lden and is still stated to be legitimate in some of the official

manuals on war rights. The British Manual lays down that

hand that a flag of truce cannot be received.*
The German Manual states that :

TV army has the power to announce that it will

not receive parkmcntairt* during a determined time. If in ipite
of this declaration, parfeaMittoww present themselves, they have no
claim to inviolability.*

Assuming that the discussion at the Hague has not been
overlooked, it would seem that the British and German military
administrations regard the deliberate omission of the provision
from the text of the Rtglemtnt, not as condemning the practice,
but as leaving it in the domain of usage. It would, however, be
difficult for a belligerent to justify a general declaration, even
for a limited time, that no flags of truce would be admitted, in
view of the general expression of international opinion at the
Hague. It is evidently condemned by all the best expert

Besides his power of refusing admission to a flag of truce in Any

any particular case, a commander has the right to take such

precautions as general or local experience has proved necessary

he protection of his force, as regards the precise manner in

which parUnuiUaini are to be allowed to approach. The latter

iCeIB.B.p. n:

Proieeeor Holland's note to Article XXXIU in Britieh OOoial Lax* md
OMtafti o/ War, p. 41. The French Mamml * f C7p (p. 58) allow* a
commander to declare that ha will receive no flags of true* during a certain
time, bat only "for very grave motive*." Bat the date of the JftmaW fa

P n

224 WAR RIGHTS ON LAND CHAP.

cannot claim admission by any particular route ; it may b< in
convenient for the other side to admit them by the way they
select and another route may be prescribed. 1 Also, it may be
necessary to order that the parlemtntaire must approach, it
mounted, at walking pace, as was done at Strassburg in 1870.*
Where an enemy has been known to resort to treachery in con-
nection with a flag of truce, stringent precautions may be taken
to prevent a recurrence. After the Bronkhorst Spruit incident
in the Boer War of 1880-1 when the headquarters of the 94th
Regiment were defeated and captured by the Boers, who were
accused of having misused the white flag to surprise th<
British, the British commander at Pretoria issued the following
order :

No hostile armed body of men will, under any circumstances, be
allowed to approach the position of troops, or, when on the march,
within 1,000 yards. Any such body attempting to advance under
cover of a flag of truce will be fired upon. A flag of truce will
only be received when sent forward with an unarmed man and
provided no advantage is taken meanwhile by armed bodies to
approach. 8

Abuse of Every war sees complaints made about the misuse of the

often* diu? wn ite & & & Often, no doubt, such complaints are well founded,

to mia- for the white flag lends itself readily to treacherous misuse, but

a&n'of 611 at times pure accident or misapprehension is at the bottom of

war Uw. ^ ne apparent misuse. Thus at Manilla in 1898 the white flag

could not be seen owing to its being hoisted against a white

background, and an unnecessary bombardment by the American

ships resulted. 4 In the Boer War, the flag of the Orange Free

State was sometimes mistaken for a white flag. 6 I have already

referred to the common misconception which prevails as to the

war rights concerning the raising of a white flag in an action,

as a sign of surrender. 8 There is no such magic power in the

emblem as some people suppose. In fact, the idea of its

" sacredness " is more or less a popular myth ; it is sacred if

used strictly in accordance with the Articles of the Rtglement

1 Kriegabrauch im LandJcriege, p. 28. 8 Fillet, op. tit. p. 358.

Colonel Bellain, The Trannaal War, 1880-81, p. 445.
4 Major Youngbuaband, The. Philippine*, p. 95.
1 Dwpagnet, op. tit., p. 118. 6 V. supra, p. 92.

vii FLAGS OF TRUCE 225

quoted at the head of thin chapter, but no uch san-
attaches to it when used to indicate surrender, or to take a not
uncommon instance-when hoisted, not by a parlemndairt who
goat forward to meet the enemy in the recognised way, but by
a retreating force to stay the enemy's hand. 1 Military neces-
sity may jn-iiiV th- . mM. m l>. m^ totally ignored in such a case,
for soldiers whose 81100688 is at stake cannot be expected to
bute to the white flog tho potent qualities of a fairy wand
the waring of which is sufficient to check their pursuit or at-
tack on the spot and to ensure their opponents a safe escape
from a tactical mess. In the first Boer War the British com-
mand. r \\\ the Transvaal issued the following District Order,
the opening words of which refer to an abuse of the white flag
by the Boers at Zwart Kopje on 6th January, 1881 ; f it is a
sound statement of the practical war law on the point :

In order to protect the troops against a recurrence of loss of
torn such savage proceedings, it becomes necessary to direct
that whenever a flag of truce is displayed from a rebel position, no
one from our side should advance to meet it until it hat come
unaccompanied by any armed body, close to our lines. The troops
will be careful to keep under cover on such occasions, although the
"cease-fire" may have sounded, until the O.C. directs them to
USA

On the occasion of the siege of Port Arthur in 1904, the
Japanese legal counsellors drew up a very valuable *

;h< guidance .-i t lu> besieging troops. These
instructions were approved by the Staff and distributed to the

1 When the Boon were retreating from Talana after the
October. 1800, the British artillery under Colonel Piekwood failed to

ber Imsmtg the commander thought that British mounted troop*
mingled with the Boera or because he taw a white flag raised. "Which,
erer it was," ears the Time* historian, very properly, " it was no reason for
even a moment's hesitation.'* (Tim** Jftstory, VoL II. p. 161.)
The above seems to hare been doe in part, at least, to the oontinoed
of the Volunteers on the British aide. Many oaeee of abuse of the
flag will be found, on etasrinatkm, to bar* beta oaoesd by wan* of
offlrttactks.

v.u,. ,,: ' i SB m i

226 WAR RIGHTS ON LAND CHAP.

IMPORTANT POINTS TO BE REMEMBERED DURING THE BOMBARDMENT

OF A FORTRESS.
regarding
the white As a genera) rule, the enemy who hoists the white flag during

the course of a fight indicates, by this means, that he intends to
' lt u ;" sunviulrr. But it may very well happen that the enemy, without
having that intention, and simply in order to obtain some
advantage, hoists the white flag; it may happen also that tli<>
enemy really intends to surrender, but the surrender would be so
inopportune for us that we could not accept it. Hence, tin-
simple fact of the enemy hoisting the white flag does not
necessarily imply a complete surrender, and consequently he
should by no means cease to be fired on for that reason : the
sending of the bearer of a flag of truce should establish the under-
taking on both sides.

Here are several hypothetical ca^-s in which the enemy may
hoist the white flag and the way in which to behave in each
case:

(1) If a soldier hoists a white flag (a handkerchief, etc., may
serve the purpose), indicating that he surrenders, make him a
prisoner of war.

(2) During the bombardment of a fortress, although a par-
ticular fort may hoist the white flag, it is not necessary to cease
fire against that fort. The bombardment should continue until
an understanding results from the arrival of a bearer of a flag of
truce. A special order to cease fire will then be given by the
commandant of the force.

(3) The procedure should be the same when all the hostile forts
have hoisted the white flag ; but, in this case, a report will be
made as soon as possible to army headquarters ; the troops should
await orders whilst, however, continuing their fire.

(4) During the bombardment, if the bearer of a flag of truce
is seen to come from the hostile camp, it is not necessary to cease
or even to abate fire in the direction from which he comes, but ho
should not be fired on intentionally.

(5) If, during the bombardment, the enemy is seen to despatch
the women and children from his camp in order to send them to
a place of safety towards our line of battle or in order that they
may crave the compassion of our army, there is no necessity to
cease or abate the fire in the direction from which they come, but
they should not be fired on intentionally. Army Headquarters
should be notified and orders awaited.

(6) In the hostile fortress, the buildings at the top of which
is hoisted the white or Red Cross flag are recognised as churches,
hospitals, etc. ; care should be taken not to fire on them unless
there is evidence that the flag is being used as an artifice of war.

vii I LAGS OF TRUC1 227

(7) The bearer of a flag of trues should be respected according
to the customs of war ; he should be treated as follows

Generally, the bearer of a flag of trace comes towards Us
adversary accompanied by an interpreter and by another person
holding a white flag and blowing a trumpet. It goes without
saying that be should not be fired on, but he should be stopped
tie outposts and headquarters notified through the usual
channel in order that the necessary instruction* may be received.
He should be treated with the honours due to his rank and, if
occasion calls for it, an escort should be given him. When
it,- h NOI baoi h- fcoald iajeja tfsi bosftfli anq .*;!.,,.

The sad necessity of removing the dead and wounded after Tb whiu
an engagement IB frequently the occasion for communication JjJ w
by flag of truce. The rule of war ia that each commander rnor*lof
must tend the wounded and bury the dead, his own and the

enemy's, within his own lines, but permission must be requested
commander who remains in possession of the field to
remove those lying in front of his position. In the case of a
iriege it would usually be the besieger who would thus have to
seek permission after an attack, for the defender's dead would
ordinarily be inside his earthworks or forts. The necessity for
ending a parltmentaire after each attack was overcome at
Sebastopol by a special arrangement which was arrived at
between the belligerents. It was settled that firing should
eeaae whenever a white flag appeared on the battery flagstafls
to indicate that a burying party was at work in front of the
batteries. 1 The arrangement appears to have worked satisfac-
torily under siege conditions, but it is not one which could be
d to field operations with due regard to military
exigencies. When Grant and Lee were waging their long,
-in i ting duel between the Rappahannock and the Chickahominy

former proposed " that, hereafter, when no bat

raging, either party be authorised to send to any point between jj^gy 1
t h- )'i< keta or skirmishers, unarmed men bearing litters to pick Mbjtet*
up th.-ir dead or wounded without being fired upon by the
other party." Lee replied that such an arrangement would
lead to misunderstanding, and proposed that the commander
wishing to remove his dead and wounded should send a flag of

Crimea, p. 329.

228 WAR RIGHTS ON LAND CHAP.

trace. Grant appears to have misunderstood Lee's meaning
and replied :

I will direct all parties going out to bear a white flag and not
to attempt to go beyond where we have dead or wounded, and not
beyond or on ground occupied by your troops.

Lee could not agree to this suggestion, and proposed that the
usual method of asking permission by means of a flag of truce
should be resorted to on each occasion before search-parties
were sent out. 1 A Union general, F. A. Walker, who was on
Hancock's staff and therefore under Grant, has ascribed the
latter's delay in sending a flag of truce on this occasion to
unworthy motives ; it would, he says, have amounted to an
admission that he was beaten on the 3rd June (at Cold
Harbor). 2 There is nothing in Grant's career to show that he
was actuated by anything but feelings of humanity. It is
inconceivable that Grant could have lacked the moral courage
to own himself beaten Grant, who, after he had declared that
he " proposed to fight it out on this line if it takes all summer,"
had the magnificent inconsistency to abandon that line and
take a better one when he saw it. Nor is it right to accuse
Lee of callousness to the sufferings of the wounded. A
commander must retain his liberty to decide whether the
enemy's search-parties shall be allowed access to the battle-
ground he has won or not. Sometimes it is an abj
necessity of war to refuse permission : it was so at th
siege of Port Arthur the Russian defenders turned tin ii
search-lights and their guns on the fatigue parties sent out b)
the Japanese to look for their wounded and Professor Ariga
upholds them for doing so. 8 When the requirements of the
defence and the requirements of humanity come into collision
the latter must give way. Little time would ordinarily be lost
through having to ask permission and even had Grant's
proposal been accepted by Lee there might still have been
cases in which it would have been necessary to send the
enemy's searchers and litter-bearers back, so that humanitv
would not have been served any the more.

1 Grant, Memoirs, pp. 501-2.

a H. A. White, R. E. Let and the Southern Confederacy, p. 387.

* Aahmead-Bartlett, Port Arthur, p. 189 ; Ariga, op. cit. p. 164.

N9OIU

te la

VII

FLAGS OF TRUCE 229

Th. t! ig t truce must not be made a cloak for hostile action No
that is an illegitimate rose, involving treachery, and would

: fy reprisals against the parlem**ta\r* and the oommandftr
who sends him. But though a commander moat not attack
un.ler cover of a flag of truce, ho is under no obligation to
maintain the atoliu quo of the moment he tends it forward. MBL
He may alter hia dispositions, just as he may during an
armistice, and it rests with the enemy to prevent his doing so,
by refusing to receive the parUmtntairt and by continuing the
engagement The British Field Service Regulation* (section 94
authorise a general to disregard a white flag - in oases

: o movements of troops or material are carried out under
its protection." Some jurists have condemned Arabi Pasha for
ejecting the withdrawal of his army from Alexandria in July,

_'. by displaying a flag of truce in a boat and on a fort 1 If
movements may be carried out, during an armistice, in places
not dominated by the enemy's guns, or movements of such a
nature that he could not have prevented them were no
armistice existing (and all jurists would allow so much liberty,
at least), there is no good reason for condemning such move-
ments during the preliminaries of an armistice, that is, during

sending of a flag of truce. The British should not have
allowed themselves to be hoodwinked by Arabi ; if his action
wa "sharp practice," it was no breach of war law. In July,
t he Turkish army evacuated the Shipka Pass under cover
of a white flag which they despatched to General Gourko,
ostensibly to negotiate a capitulation, really with the sole

t of gaining time to withdraw. 1 Professor De M*rtnf.
who is a harsh critic of Turkish actions, states that such a ruse
was " permitted by the usages of war," and that " the Turks
can justify by several historical precedents this military ruse of
ending a parlementairc to treat for a surrender, with the sole
aim of gaining time for a retreat" *

The RegUmeni is silent as to safe-conducts and safeguards,
and the usage concerning them may be briefly

PptnlMta, Irttnmtioml Low, VoL II, p. SM.

Bpmoohin, QpmtfNM <tf CfeMnBJGor*o'* Ad,*** Oman* (Hmtoofc'i
ranftUUoa), pp. 118-8.
' La Put* * Lm Omm, p. 41 1

2 3 o WAR RIGHTS ON LAND CHAP.

The subject is not strictly in place in a chapter on Flags of
Truce, but it is convenient to discuss it here.

Brit A " safe-conduct " or " passport " is a written authority issued

MU\ pan- ty a commander to one or more individuals, allowing him or
?<** them to pass through districts occupied by his forces. The
terms appear to be convertible, though some would make the
"passport" confer a more extended liberty of movement than
the " safe-conduct," which they would confine to an authority
to come to a specified place for a specified object. 1 At any
rate, a passport or safe-conduct may be given by a commander
in respect of the country or district under his command. 1 1
has, of course, no effect upon the other belligerent. 2 It is a
personal authority and is not transferable by the grantee to
another ; hence the photograph of the grantee is sometimes
annexed to it. It is revocable by the grantor or a higher
official, but good faith demands that it shall not be withdrawn
to the detriment of the grantee unless it has been abused. 8
If circumstances require the revocation of the passport, the
holder should be allowed to retire in safety, but not necessarily
by the route chosen by himself. 4 It may be given either to
combatants or to non-combatants. Safe-conducts were given to
the Boer leaders in April and May, 1902, to allow them to
confer about surrender ; the war was prosecuted while the
negotiations were in progress, notwithstanding the absence of
the Boer generals from their commandos. 6 There is no stereo-
typed form for passports or safe-conducts ; they would probably
be usually couched in some such terms as the following
safe-conduct which was given to a non-combatant by the
Japanese in the war with Russia

Safe-Conduct.

Jokan Fewari, hospital attendant of the Red Cross detachment
of the trading community of Moscow. The above-mentioned
person, forming part of the medical personnel as aforesaid, is
authorised to return. Certified by the Japanese army near Ta-
Mou-Tcheng. 6

See Hall, International Law, p. 542.

3 Bonfils, op. cU. sec. 1246 ; Fillet, op. cti. p. 359.

* See KrUgibrauth im Landkriege, p. 41. Hall. '.<-.

5 Times History, Vol. V, pp. 526-7, 577. Ariga, op. cit. p. 200.

FLAGS OF TRUCE 231

A safe-con- i goods, sometimes called a " license N it

not personal to the grantee but pasm* with the good*, provided

transferee IB approved by the authorising belligerent

a passport, it only bind** tho army of the belligerent who

isSUCti it

A " safeguard " is " a notification by a belligerent commander

tmildings or other property, upon which tho notification is

usually posted up, arc exempt from interference on the part of

his troops; but tho term is also used to describe a guard

placed by the commander to ensure such exempt i

)i .-all tho first kind of safeguard morfe, tho second VMML*

ic laws of war and if the enemy occupies the
locality it is usual to send them back to the army to which
they belong " ; * and in such a case their arms and baggage
accompany them. 4 The object of a safeguard is generally to
protect museums, historic monuments or the like ; occasionally
to show respect for a distinguished enemy, as in the case ot
safeguard whi< h McClellan placed over Mrs. R E. Lee's
residence, White House, Virginia, in 1862.* When the allies
invaded France in 1M4, th.- Emperor Alexander of Russia
honour. 1 himself and Poland by his graceful act in assigning a
guard of honour of Polish soldiers to protect the house of
Kosciusko th<n living, almost as a peasant, nearTroyes from
pillage and contribution.

feseor Holland in official Loam <md Otttomt o/ (for, pp. 44-5.
BonfiU, op. e*. eec. 1247.

.llet, op. <*. p, 90a BonfiU.

McCUUa*'* Oim Story, p. 380. The houee had a farther claim .
napeot of all Americana, as being that from which Washington took his

rwpeci

bride ; yet McClellan wat attacked by the AbolitioniiU in the North for not

disregarding iu pact and preaont aeBociatione, when he might have

of it ae a hospital (do., p. 406).

CHAPTER VIII

ARMISTICES

Conventional law of war: Hague Rfylemcnt, Articles XXXVI

toXLL

ARTICLE XXXVI.

An armistice suspends military operations by mutual
agreement between the belligerent parties. If its duration
is not defined, the belligerent parties may resume operations
at any time, provided always that the enemy is warned
within the time agreed upon, in accordance with the terms
of the armistice.

ARTICLE XXXVII.

An armistice may be general or local. The first suspends
the military operations of the belligerent States everywhere ;
the second only between certain fractions of the belligerent
armies and within a fixed radius.

ARTICLE XXXVIII.

An armistice must be notified officially and in good time
to the competent authorities and to the troops. Hostilities
are suspended immediately after the notification, or on the
date fixed.

ARTICLE XXXIX.

It rests with the contracting parties to settle, in the terms
of the armistice, what communications may be held in the
theatre of war with and between the populations. 1

1 Article X X \ I \ has been badly treated by official translators. The
French text which waa approved at the Hague in 1899, and confirmed in 1907,
reads as follows :

" II depend des parties contractantes de fixer, dans les clauses de I'armistice,
les rapports qui pourraient avoir lieu, sur le theatre de la guerre, avec lee
populations et entre elles. "

The meaning of this is that given by me, but in Hague I B.B. (p. 332) it in
translated

" It is for the contracting parties to settle, in the terras of the armistice,

CH. viii ARMISTICES 133

ARTICLE XL.

Any eerioua violation of U* armfcrttoe by one of the parties
gives the other party the right of danonnoing it, and even,
in oases of urgency, of reoomrnenfring hostilities imme-
diately.

ARTICLE XL1.

A violation of the terms of the armistice by individuals
acting on their own initiative only entitles the injured party
to demand the punishment of the offenders, or, if necessary,
compensation for the losses sustained.

CONTINENTAL jurists distinguish between " armintioes " Arab

fciutilUtand) and " suspension of arms " ( Waffcnrukt), the
former being a con the general suspension of

hostilities, sanctioned by the Governments, and usually the
precursor of peace; the latter a more limited suspension
arranged by the generals in the field and usually terminated
lie resumption of hostilities. Of course an armistice may
end in a renewal of war and a suspension of arms in peace, but
generally they terminate in the manner stated. An armistice,
too, may not apply to all the forces in the field for instance,
the armistice signed at Paris on 28th January, 1871, which
preceded the peace, excluded the departments of Doubs, Jura,
and Cote d'Or, and the town of Bel fort 1 English jurists make

tion between armistices and suspension of arm>
(inner term being used m<litV< r ntly of all such conventions >

what i*irmnnmfrimtfflm may be held, on the theatre of war, with the populations
ad with eodk otter."

This incorrect translation is repeated in the British Official Mammal, Law
amd CWosw of War, p. 43. The tnuulation given in Hague II B.B. (p. 88)
Is inexact too, and quite misleading :

rests with the contracting parties to Mttle, in the terms of thearmfetios,
what ooawmnicaUons may he held, in the theatre of war, with inhabitants
and between the inhabitants of the belligerent State and those of the

Of course, what is intended to bo regulated is the intercoms of the
population of the oenytsrf territory with the population of the country still
held by the enemy (in both oases national* of the enemy State) ; and also
between each belligerent force and the inhabitants of the tonalities held by
th- B*SJ BM H.V.-U. i K.I;. ,,. u>

art U \i.i k .v.-.. Wfriissslj taMlrtei h n..- n I r. i- ,
the French word particaliers " being tnuuUuxl " privaie persons * instead of
iTidoak."
mum official JSTMfory, Part II, VoL 11, Appendix 156,

time in

234 WAR RIGHTS ON LAND CHAP.

and no distinction is drawn in the Rfylvnient. A suspension of
arms is indeed only a particular kind <>t armistice and the same
rules apply to both.

In armistices time is of the first consideration. The moment
the f commencement and the moment of termination should be

fixed beyond all possibility of misconception. Obviously the
passage from hostile to amicable relations and the subsequent
passage from amicable relations to hostilities supply a ready
source of complaints, recriminations, and reprisals unless
managed with the utmost possible care. 1 No difficulty arises
when the suspension is for a specified number of hours,
provided time be allowed for notifying the troops on both sides
of the moment of commencement. But when it is for so many
days, the question whether the days are to be reckoned
inclusively or exclusively is always likely to cause trouble, and
in such cases it is preferable to word the agreement in such a
way as to make the intention clear. If the armistice is for an
indefinite time good faith requires that notice must be given of
the intention to resume hostilities. A good example of such an
armistice and of the proper way to terminate it is to be found
in the famous negotiations between Sherman and Joseph
Johnston in April, 1865. An armistice was arranged for an
indefinite period, terminable by either party on reasonable
notice, but as some of its terms embraced political matters
which Sherman had no power to deal with, it was disapproved
by the President and Secretary of War when submitted to
Washington for sanction. The extraordinary manner in which
Sherman was treated by his ministerial superiors is an
instructive lesson in the unwisdom of putting trust in princes,
even in the princes of a Republic. Stan ton, the War Secretary,
sent to the northern newspapers an official communique which
practically accused Sherman of treachery to the Union cause,
and which in the latter's words, " invited the dogs of the press
to be let loose upon him." Since he came out of the west to
hew his great path through the heart of the Confederacy,
Sherman had been the idol of the northern people, but all his

1 See, for example, G. M. Trevelyan's Garibaldi's Defence of the Roman
Republic, pp. 162-4, for the unfortunate results of a vague understanding as to
the time of the termination of an armistice.

\K\1M ICES 23$

mty vanished in a moment when the news of the armistice

1 the official comment* thereon were made

known, and he became the most universally vilified individual

in a frve-tongued country. Instructions were issued to his

ommander to disregard his orders; Grant was

sent off post-haste to North Carolina to direct operations

against Johnston; Sherman himaelf was instructed to n

-ton of the tenniM.n i"M of the armistice and to resume
hostilities * at the earliest moment, acting in good faith." On
Grant's arrival at Raleigh, Sherman's headquarters, the follow-
ing message was sent by Sherman to Johnston

You will take notice that the truce or suspension of hostilities
agreed to between us, will cease in 48 hours after this is received
in your lines, under the first of the articles of agreement

Hostilities were not, however, resumed, as Johnston agreed to
rider on the same terms as had already been granted to
Lee at Appomattox, the obnoxious political clauses of the first
agreement being suppressed. 1

The question of what may or may not be done during an Whatmay

armistice is one of much difficulty, if one tries to solve it by daring M
recourse to the jurists' writings. One school would forbid armistice.
every operation or act whirh th< enemy could have prevented
had there been no armistice. "Thus, it would not bo
permissible for a belligerent who finds himself in a disadvan-
tageous position from which he could not have escaped without
meeting with opposition, to profit by the armistice to take up
a better position. In a siege, the besieged should not repair
an open breach, or construct new works or introduce fresh
troops, if, but for the armistice, the besieger could have
prevented his doing so, and the besieger could not continue
his siege and circumvallation works, since the enemy's artillery
could have prevented him." 2 This view is now generally

Draper, Amman Cictf War, Vol. Ill, pp. 003-611 ;
VoL n. pp. 846 ft 158, 367 ; Bowman and Inrin, Stows* md kit
p. 408* Shaman's comment on Btanton's disloyalty was
Halleek had waned him thai ao aawatin named Clark was detailed to kill
him : alter tho armistice incident he wrote to HaUeek "I little dreamed,
when 7011 warned me of the aaiatin Clark being on my track, that he would
Urn up in the direction and goise he did." (Bowman and Inrin. ojn c*. p. 485.)

* BonfiU, op. ciL sec. 1954 (bat he personally adopts the other view I

236 WAR RIGHTS ON LAND CHAP.

discredited by the continental jurists. It is open to sen.. us
objection on the ground of vagueness, making all kinds ,r
abuses, uncertainties, and recriminations possible. It is now
generally held that a belligerent may do everything which is
not expressly forbidden in the armistice and if he thus secures
an advantage, the other belligerent is estopped from complaining,
for he should have displayed more foresight in the negotiations.
It was proposed, in the draft for the Brussels Conference, to
make the matter clear by laying down that

On the conclusion of an armistice, what each of the parties
may do, and what he may not do, shall be precisely stated.

The article was suppressed, not because its principle was con-
troverted, but because it was supposed to be implied in the
terms of what is now Article XXXVI. 1 It is perhaps unfortu-
nate that the article was not allowed to stand, but one cannot
take the suppression as a denial of its correctness. It is cer-
Thc tain! y the principle which has been followed in practice. A
cT^^dern c* 86 wnicn arose in the Russo-Turkish War of 1877-8 is
ware. instructive on the point. During the armistice of Adrianople,
which preceded the peace of San Stefano, General Totleben
erected a series of high observation posts, from which the Rus-
sian sentries could see into the Turkish entrenchments, along
the front of his position. Such posts could not have been
erected without opposition had no armistice existed, and the
Turkish Commander, Fuad Pasha, demanded that they should
be removed at once, failing which he proposed to open fire
along the whole line. Totleben declined to remove the posts
and sent a strongly-worded remonstrance to Constantinople,
with the result that Fuad Pasha's action was disavowed by his
Government. The right of Totleben to do as he had done was
never questioned. 2 The same principle of liberty of action was

mention); see also Lawrence, International Law, p. 456, who says, quite
unjustifiably, that "it is univermlty agreed that during an armistice a
belligerent may do in the actual theatre of war only such things as the enemy
could not have prevented him from doing at the moment when active
hostilities ceased." Professor Westlake, too, completely ignores the accepted
view of Continental jurists, which I have adopted.

1 Brussels B.B. pp. 175, 209.

* Von Pfeil, Experiences of a Prussian Officer during the Ituwso-Turkiah War,
pp. 346-8.

vui ARMISTK 237

followed in the unniatico arranged at Santiago in 1888, each
belligerent being left free M to profit by the armistice to the beat
of hi* interests, on the sole condition that his acU were not
actually hostile ooea " * which would, of course, amount to a
violation of the armistice, kotiiltiu* being suspended Similarly
during the armistice conclude! \\\ July, 1866, at the close of the
Seven Weeks' War, the Prussian commander, whose line lay
from Briinn to Ebenthal, aroused no Austrian protest when bo
missed his troops on his left with a view to making a dash on
Presburg if the peace negotiations should fail ; the Prussians
lay * concentrated in one huge mass, like a crouching lion, ready
to spring upon the Danube." * If Hall's opinion is correct, that

i truce between armies in the field, neither party can .
redistribute his corps to better strategical advantage," * then
the action of Prince Frederick Charles on this occasion was a
breach of the armistice, which Austria would hardly have al-
lowed to go without a protest. But the English jurist's view
does not appear to commend itself even to the British military
authorities. The British Official History of the Boer War
records that, as the armistice arranged by Buller and Botha at
the Tugela Heights on 25th February, 1900, did not expressly

i t he movements of troops, the artillery commanders were
able to transfer their guns to new positions without being shelled
he Boers, and much work was done on the right bank of
the ri\.-r in making roads to the site of the proposed pontoon
bridge. 4 There is little likelihood of a belligerent regarding
himself as bound by the very doubtful rule which the English
jurists maintain, and of refraining from exercising a very full
hWty of act: nun -armistices; if his liberty is curtailed

ust be in >f an express clause in the armistice and

not under any general rule of war law. Where no mention of
a particular act or operation is made, silence will certainly be
taken as giving consent Toral, the Spanish commander at
Santiago, objected to the movements which Shatter made to the
north of the city in the armistice of J u 1 \ . 1 898, but that was be-

> IMIet. o f , r,/. p. 365. t Hoskr, S~ Wm& PTor, p. 414.

,11. Inter***** Law, p. 644.
Maurioo, OJIciat //Mtory, Vol. II, p. 50*; Timt* 7/irfory, VoL III,

P. m

238 WAR RIGHTS ON LAND CHAP.

m<>\vmentiO(Nlld

the terms of " the rather indefinite truce between the two
armies." ! Actual hostilities need not be forbidden in the an u i
slice convention, but everything else which it is desired to pro-
hibit should be specially legislated for. In the armistice of
Shimonnsiki (Chino-Japanese War, 1895), it was expressly pro-
vided that the parties should not " extend, perfect, or advance
their attacking works or reinforce or in any way strengthen
either for offensive or defensive operations their confronting
military line." * The armistice of Portsmouth (Russo-Japanese
War, 1905) forbade the Russians to send reinforcements south
of Harbin and the Japanese to send them north of Mukden, but
otherwise full liberty of action was allowed to each party, and
as regards the detailed terms of the armistice drawn up by the
Russian and Japanese commanders in Manchuria, it was stipu-
lated, says Professor Ariga, that " each belligerent should do
whatever he wished within his own lines .... Every offensive
and defensive operation would be allowed, provided only that
such offensive operations did not touch the enemy's line." 8 It
was the intention to give each combatant a free hand as to what
he could do and the armistice was purposely made as simple as
possible. No difficulty arose as to carrying out its terms. The
armistice arranged between the Corean armies was somewhat
fuller, and it differed from the Manchurian armistice in for-
bidding " any preparation for attack or defence near the line
limiting the neutral zone." 4 In both cases the principle was
followed that whatever was not expressly prohibited was allowed.
This is the only safe and satisfactory rule. Where jurists dis-
agree as to what may and what may not be done, it is most
unwise to leave the question to the vague domain of Inter-
national Law. The French Maniul (p. 62) expressly rejects the
view that a belligerent must abstain from everything which the
other could have prevented had there been no armistice. " This
theory," says the Manuel, " has the capital defect of not being
practical, of opening the way to abuses and recriminations, and

1 Titherington, op. til., p. 298.

1 8. Takahathi, Case* on International Law during the Chino-Japanete War,
p. 205.
Ariga, op. tit. p. 564. 4 Ibid. p. 560.

VIII

ARMISTICES 239

consequently it has not prevailed during recent wan." Both

America* In*rudicm* (paragraph 143) and the German

'/fora** im bmdkritge (p. 44) reoommend that the eon-

iir i,.n- ,.i tin* armistice should make it quite dear in each case

her damaged or destroyed fortifications may be repaired,

w of the diversity of opinions on the subject, and the re-

commendation is equally applicable to the many other points in

whi.-h disputes may arise as to a belligerent's right of action

during an armistice.

Bach belligerent must notify his troops of the existence
an armistice. "One is not bound to accept the notification
from the enemy as to the conclusion of an armistice. The ^ bi *
experience of military history furnishes a warning against mrf*
credulity in this ri'*|*-ct." l The case of Murat and the Prince ^^^
iiersberg to which I have already alluded is an example of annkUo*.
the kind, but there are also many cases in which a belligerent

ha> ..itV- jvl thn-u^h a.-.-.-pt in-^ hi- .|I|M .n.-nt '- Mat- -m. -nt. iual--

with an honest belief in its accuracy, as to the conclusion of an
armistice. The Franco-German armistice of January, 1871, was

iod to the German commander in the east, General
Manteuflcl. by the French General Clinchant (who had succeeded Modern
Bourbaki in command of the Army of the East when the latter I***** *
attempted to commit suicide) : Clinchant being unaware that
the eastern theatre of war was excluded from the scope of the
armistice Manteuffel suspended his operations and restored
about 1,000 French prisoners whom he had captured since the
date the armistice was signed* but the consequences of the
mistake was more costly still to the French army, which
suspended its retreat, with the result that, when the mistake
was discovered, it had no alternative but to take refuge in
Switzerland, where it was disarmed. 5 In the Seven Weeks'
War, the Prussians showed themselves equally confiding but in

case the announcement of the armistice turned out to be
correct They had the Austrian army completely at their mercy

umenau on the 22nd July, 1866, when an Austrian officer
came out under a flag of truce and announced that an armistice
had been signed the day before, to take effect at noon on the

p. 43. Ibid. p.

BonfiU, op. tit. tee.

2 4 o WAR RIGHTS ON LAND CHAP.

22nd 'I'h.' Prussian commander, General Bose, at once order. !
the cease-fire to be sounded and broke off the combat. 1 The
Russo-Turkish War of 1877-8 furnishes an instance of an
enemy's notification of an armistice, made in good faith but pre-
maturely, being acted upon by one mlnnm <>f an invading army
and disregarded, quite properly, by the others. When Goui k > s
tour columns were advancing on Philippolis and had reached
the Turkish position at Trajan's Gate and Samakoff, a
parlementaire came out to say that an order had been given
from the Turkish Minister of War at Constantinople to cease
hostilities as a truce had been made. One column, Lieutenant-
General WilhelminoflTs, was delayed for 24 hours as a result of
this bona fide misapprehension on the part of the Turks, but
otherwise hostilities were not interfered with. 2 Even where a
commander is hard pressed and has everything to gain from the
conclusion of a general armistice, it may be his duty, and it i-
certainly his right, to refuse to accept his enemy's notification,
which may be a Greek gift, designed with a political or
strategical object of which the isolated commander cannot be
cognisant. The cautious commander would hesitate to act on
anything less than a written authority from his responsible
superior in such a case. The armistice concluded in March,
1881, between Sir Evelyn Wood and General Joubert provided
for the British garrisons beleaguered at Pretoria, Potchefstroom,
Standerton, Marabastadt, Lydenburg, and Wakkerstroom
being informed by the Boers of the suspension of hostilities.
The result was as might have been expected. Cronje, who was
besieging Potchefstroom, did not notify the garrison at all ; the
British commandants at Marabastadt and at Wakkerstroom
refused to recognise the existence of the armistice in the absence
of written authority. The commander at Standerton appears to
have accepted the announcement. As the terms of the armistice
provided that it should not come into force at the several
invested towns until they received a convoy of provisions which
the Boers undertook to pass through their lines, and as the
waggons did not reach Pretoria, Rustenburg, Marabastadt, and

' Hosier, Seven Week* War, p. 407.

* F. V. Greene (U.S. Army), The Russian Army and ite Campaign* in
Turkey, 1877-8, p. 340.

VIM ARMISTICES 241

nburg until after peace bad been made and notified, the

defender* of these place* were not called upon to decide

ther they would give effect to their adversary's notification

ot 1

Some jurists maintain that a belligerent is bound, during an

.mm-"... n..; t.. put im..- .t out ->i iteiUnj diftaao ! in-
enemy by a retreat."* There i* no a<. in convention or

in iu.ni, -11, practice for such a view. I have already touched
estion of a command-

i I In- *im- |.nn.-i|.l.-- .i|>|l\ U>S r--tu. :u nt dOODg -m

In the Russo-Japanese War a Russian force effected
i ring an armistice which the Japanese commander,
General Asada, commanding the Guard** 1 * u, granted on
7th March, 1905, for the purpose of removing the dead and
wounded. The general was taken to task by Marshal Oyama,

1 1 lowing the suspension, which was merely a ruse to cover
the Russians' withdrawal. " The enemy," says Professor Ariga,

rtted by a perfectly legitimate act to conceal his retreat
The ruse was legitimate. It was our generals who allowed

selves to be hoodwinked." s A commander has always the
right to refuse an armistice when there are military reasons
against it or when he has reason to suspect trickery. It was

1 necessary on two occasions during the last siege of Port
Arthur to decline to grant an armistice even for the sacred
l'ity of removing the dead and wounded; in one case the
Russians were the refusers, in the other the Japanese. 4 Lord
Roberts refused to accede to Cronje's request for an armistice at
Paardebergin February, 1900, and Sir Archibald Hunter refused
Prmsloo's similar request in the Brandwater Basin in July of
the same year. In the former case, an armistice would have
given the Boers time to perfect their defences, and they had
hopes, too, from the forces which were thought to be hurrying
to relieve them ; in the latter, the delay might have enabled
them to find some way of escape from the enveloping British
Did the officers think, " says De Wet, referring

i Colonel BelUiw, TYvMMM* War, 1880-1, pp. 275, 283, 287, 325, 340, 887,
403, and Appendix 0.

* Hall, Iniertatiomal La*, p. 648. Abo Uwrtoo*, I*ttnati<mal Law,
p. 445. Arigft, op. cA. p, 257. * Ibid. p. 2M>

Tmt tfMory, VoL III, p. 453 ; VoL IV, p. 340.

242 WAR RIGHTS ON LAND CHAP.

to Prinsloo's request, "that the English would be so

as to grant an armistkv at such a time as this, wh.-n all

that the burghers wanted was a few days in which to effect their

" l

Another question which has been much disputed is that of
beege?l tne re victual ling of a besieged place during an armistice.
ij; l ; ^ Thiers and Bismarck discussed it with heat and volubility in
1870. The former claimed that the usage of war allowed the
iv victualling of Paris during a suspension of arms, on the
principle that, at the end of the armistice, each belligerent
ought to find himself in the same situation as at the beginning;
and that, without such an arrangement, an armistice would of
itself suffice to capture the strongest fortress in the world. 2
There are precedents to be found in the Napoleonic Wars for
allowing revictualment ; the armistices of Treviso (1801) and
of Pleiswitz (1813) provided for re victualling every ten days
in the first case, every five days in the latter. 3 Again, in 1866,
the Austrian fortresses were allowed to draw supplies from
a limited space in their vicinity during the armistice of
Nikolsburg. This space was ten miles at Olmtttz, five mil* -s
at Josephstadt, Theresienstadt, and Koniggratz. 4 But the
right of revictualment has never been universally admitted.
Bismarck refused to allow it at Paris unless some " military
equivalent " were granted to the Prussians, and by a military
equivalent he meant the handing over of one or more of the
forts in the enceinte. To this Thiers would not agree. " It
is Paris," he said, " that you ask from us, for to deny us the
iv victualling during the armistice is to take from us one month
of our resistance ; to require from us one or several of our forts
is to ask us for our ramparts." 6 The negotiations fell through
over this question. No doubt a strong case may be made out
for M. Thiers' contention, but on the other hand the fact that
a belligerent is asked to grant an armistice shows that he is in
the stronger position, and that the suspension is more advan-
tageous to the other party than to him ; else he would have

1 De Wet, Three Years' War, p. 166.

8 Cansell'g History, Vol. I, p. 454 ; German official History, Part II, Vol. I,
p. 282.

* Hall, International Law, p. 545.
4 Hozier, Seven Week* 1 War, p. 423. Cassell'a History, VoL I, p. 454.

nil ARMISTICES 243

aske<i He ia therefore j unified in requiring wmiething

more tlmn the maintaining of the &itu* quo at the moment of
tgreement He i (in colloquial parlance) M the upper dog "
at the time, and he has grounds for demanding tome equivalent
he advantage which would presumably have accrued to
him hod hontilitit.fi continued with.mt a break. At any rat-
is absurd to speak, as Professor Fillet does, of an M incontestable
tnalmeir right A/M been contested, very

specifically. The fact is that there is no inherent right of
ualmont in an armistice ; if the right is claimed, it must
be claimed, not as a right following necessarily and auto-
matically from the nature of the contract and conferred by the
usage of war, but solelv in virtue of an express stipulation in
the bond. As advised in the German official manual, the ques-
tion of n? victual mont hod better be settled when the conditions
of the armistice ore drawn up. Otherwise difficulties are sure
to arise.*

Article XXXVIII provides for the prompt notification of the DM from
troops of cither belligerent Sometimes varying times are which *"

1 for the commencement of the armistice, to allow of distant begin* u>
or isolated forces being notified without delaying the effect of n
the suspension in nearer places, and to prevent complications
arising through such forces continuing hostilities should the
armistice take effect from the date of signature. Hostilities
cease from the moment of signing unless a later date is specified
in the agreement They need not cease during the negotia- HwtUi-
ti.>ns for on armistice ; the negotiations must not be made the frrtrTrarir
cover for a treacherous attack, but a belligerent is not bound
to discontinue his operations because an armistice is being
discussed. Spain protested against hostilities being continued

he United States in 1898 while the French Ambassador at
Washington was in treaty with the President and Ministers as
regards the conclusions of on armistice. The United States
Government replit <1. .juito properly, that it was a belligerent's
strict right to continue his operations so long as an armistice
had not been concluded. 1 Once the armistice is signed,

r/. p. 367.

p. 44.
X.D.I. Seputmbcr-Octobcr, 1880, p. 575,

244 WAR RIGHTS ON LAND CHAP.

is not to commence at a later date, any acts of war don < m
ignorance of it are null and void, and should be rectified as far
poanbb, In April, 1865, Major-General J. H. Wilson,
U.S.A., captured Macon, Georgia, during the armistice between
Sherman and Johnston, of which Wilson had Ix-.-n informed by
the Confederate General Cobb,but not (as he should have been)
by his own superior commander. On hearing of the captuiv
Sherman ordered Wilson to release the captured Confederate
Generals (Cobb, G. W. Smith, and McCall) and to occupy
ground outside Macon. 1 Manila was captured by Admin)
Dewey and General Merritt after the commencement of the
general armistice which ended the Spanish-American War. It
was not, however, restored, as an article of the Protocol of Peace
surrendered the city to the United States. 2 The capitulation
of Potchefstroom in 1881 was cancelled merely as a matter of
form and to salve the honour of the defenders under peculiar
circumstances. The armistice had not begun to run when the
town surrendered, but the besieging commander, Cronje, was
then in possession of information that an armistice was to com-
mence as soon as a convoy of provisions arrived; and this
information he was bound, by the terms of the armistice, to
pass on to the garrison immediately on receiving it. He did
not do so, and the commandant, not knowing that relief was on
the way, had to capitulate for want of provisions. As he mi^ht
have made an effort to hold out longer if aware of the terms of
the armistice, the capitulation was annulled. 8

Usual to It is usual to fix, in the conditions of armistice, a certain

Central 8 P ace ^ neutral ground between the armies a kind of " Tom

zone.* 1 Tiddler's ground " which must not be encroached upon by the

soldiers on either side. The extent of this zone varies according

to circumstances. It was two miles wide in the case of the

armistice of Nikolsburg (1866),* about 1,000 yards in the

armistice which ended the Graeco-Turkish War of 1877, 6 and in

the armistice between the Corean armies in 1905, it was at one

Bowman and Irwin, Sherman and his Campaigns, pp. 408-0.

R.D.L September-October, 1899, pp. 607-8.

Colonel Bellaire, Transvaal War, 1880-81, pp. 272-6.

Hozier, Seven Week? War, p. 421.

Clive Bigham, With the Turkish Army in Thestaly, p. 108.

mi ARMISTICES 245

point only the breadth of the narrow river Tou-Micn. 1 In this
last ease the Japanese commander suggested a wider zone of
ili-marcation, as the Japanese soldiers used the water of the

; and were encamped on its banks, so that there was danger
of collision with the Russians on the opposite bank ; but
Russians would not agree to any altenr no originally

settle*!.* At Paris, in 1-71 the neutral zone was the space

voen the outer perimeter of forts, which were handed over
to the German* under the terms of the armistice, and
fortified enceinte which was held by the French.* The armistice
drawn up in September, 1905, by Marshal the Marquis Oyama
and General Linevitch, commanding the Japanese and Russian
armies in Manchuria, designated the space between the first
lines of the two armies as the tone of demarcation. " It is
usual/' says Professor Ariga, " in fixing the zone of demarcation,
to provide for the maintenance of the outposts of the two
ix-lligerents at a specified distance, in order to prevent any
conflict, especially when the entrenchment** of the two armies
are rather close. However, in the Manchurian armistice,
although in certain places the entrenchments were only three
or four kilometres apart, there was no question of maintaining
the outposts at a distance, because, in modern wars, the works
of defence in the first line are so important and must be kept
so secret, that the troops would never think of quitting them,
even during an armistice." * In the case both of the Manchurian
and Corean armistices, maps were exchanged showing the
limits of the neutral zone, which, as I have said, were the lines
of the opposing armies in the former instance.

Article XXXIX lays down that the parties must settle what The
relations are to exist with and between the populations
during an armistice. This provision is rendered necessary by f
the principle that an armistice suspends fighting but does not be had
affect the state of war. Neque pax tuni indutia ; ceaat mtst- Jjjjjjj*
p*gnn,btUumautcmmantt. In the absence of a special provision, UM popa

nvading belligerent's war rights as against the population

\riga, op. <*. p. 560.

OuMU's Jfrtory, VoL II, p. 222; German Official //Mfory, Part II, VoL
11 Appendix 106.

Hga, op. eft. p. 50&

246 WAR RIGHTS ON LAND CHAP.

continue unchanged. He can raise requisitions, billet his
soldiers, demand services in kind and even levy contributions,
and his general martial law regulations remain in full force. 1
And war conditions still hold good as regards the mutual
relations of the inhabitants of the districts held by the two
belligerents. In the absence of special conditions in the
Protocol, the conclusion of the armistice does not free the in-
habitants of the occupied territory from their obligation of
holding no intercourse with the people in the other belligerent's
zone of authority. They may be treated as spies or war-
traitors if they offend, just as if hostilities continued.
Bluntschli remarks that in the case of a general armistice,
which is the preliminary of a treaty of peace, there are grounds
for allowing the inhabitants of the territories occupied by the
two belligerents to circulate freely, but that there are general
military objections to their doing so when the resumption .f
hostilities is likely. He does not, however, appear to have any
authority for his rule that " freedom of circulation is presumed
if the armistice is a general one and has been concluded for a
sufficiently long time." 5 According to the rule laid down in
the American Instructions (paragraph 141), there would always
be a presumption against intercourse being allowed, 8 and
general consideration of war law and military policy are in

1 Professor Ariga (op. cti. p. 556) states that the Japanese continued to
exercise their rights of billeting and requisitioning, and to apply martial law,
during the armistice of September, 1905, but he gives as the reason for this
the fact that " the inhabitants were not, before the armistice, the inhabitants
of a hostile territory." I do not think this fact makes any difference. The
Germans exercised the war rights in question during the armistice mad' in
January, 1871 (German Official History, Part II, VoL III, pp. 218-9), although
Thiers had expressly demanded that requisitions should be stopped, " being a
war measure which must necessarily stop with hostilities " (Busch, Bixmarck,
Vol. I, p. 316). The armistice convention signed at Nikolsburg in July, 1866,
provided for the Prussian troops being rationed from the territories occupied,
but no contributions were to be raised (Hozier, Seven WeeJu? War, p. 424).
As the war subsists during an armistice, a belligerent would still retain any
war rights not specially surrendered in the agreement.

1 Bluntechli, op. cit. sec. 693.

* Paragraph 141 reads "It is incumbent upon the contracting parties of
an armistice to stipulate what intercourse of persons or traffic between the
inhabitants of the territories occupied by the hostile armies shall be allowed,
if any. If nothing is stipulated, the intercourse remains suspended as during
actual hostilities."

ARMISTICES 247

fovoir s latter view. The French Manual (p. 61) lays

down thai-

It the contracting partie* have omitted to Arrange as to the
mutual relations of the population during the armistice, each
the absolute right to aetUe the question M be

chooses on the territory held by him. An armistice M not a
temporary peace; it leaves the state of war in existence; con-
sequently the comings and goings of the inhabitant* about the
respective positionn or within the neutral tone may offer incon-
venienoea and facilitate spying.

The Report of the Second Sub-Commbwion of the Hague
Conference of 1899 states that " in default of special clauses in
the armistice these matters [i.e. the relations with and between
the populations] are necessarily governed by the ordinary rules
of war law, especially by the rules applying to the occupation

Art \ L has gone through a process of evolution. As Violation

of an

originally drafted for the Brussels Conference it A

The violation of the clauses of an armistice, by either one of
Parties releases the other from the obligation of carrying
thrin out, and warlike operations may be immediately resumed.*

It was admitted that in terminating an armistice
was essential that the enemy should not be attacked
unawares, and the following clause was substituted for that
n above, in preference to one proposed by the German
Military delegate which laid down that hostilities might
commence in two or three hours :

The violation of the armistice by either of the Parties gives to
the other the right of terminating it

question was discussed again at the first Hague Coi
enoe. It was pointed out that in some cases of violation the
aggrieved belligerent cannot fairly be deprived of the right of
resuming hostilities at once ; a case in point would be where
i consisted of a treacherous attack. But it was at
th< >am. run.- uihuiittid that to regard trivial violations as a
ground for terminating the armistice, and, a fort ton

1 Hague I RE p. 148. ' Brass* aa p. 177.

Brossslsaapp.**

248 WAR RIGHTS ON LAND CH. vm

resuming hostilities at once, was unreasonable, and the Brussels
Article was therefore modified at\d enlarged into the present
present Article XL. 1 During tjjSe Manchurian armistice in
1905, the Russian soldiers violated the terms of the agreement
by entering the neutral zone. \\ * <lid not however think it
necessary/' says Professor Ariga, " to raise an objection, because
it was really a question only of petty individual infractions
which could have no effect on the armistice generally." 2

1 Hague I B.B. p. 148. * Ariga, op. cit. p, 655.

J
^ '.

CHAPTER I\

CAPITULATIONS

Conventional Law of War, Hague RigUmtnt, Article

ABTIOLB XXXV.

Capitulations agreed upon between the contracting parties
must take into account the rules of military honour.

Once settled, they must be scrupulously observed by both
parties.

"A CAIMTII. H i<>\ is a military convention which puts an The right
end, with or without conditions, to the resistance of a body of Jj^JJ^
troops shut up in a fortress or surrounded in the field." ! A capital*-
commander of a fortress or the com man- 1 r -in- hit f of an army
has always the right to capitulate. " He may have to answer
for his conduct before the judges of his country : but the con-
on which he has concluded is not affected by that" 1 Wh n
General Toral capitulated at Santiago in 1898, there was a
dispute as to his authority for doing so. Marshal Blanco, who
was at Havana, telegraphed immediately to Madrid that he had
not authorised the capitulation iin-.-tly or indirectly, and the
ish Govern m< -nt also denied having sanctioned it "But
the Spanish Government was forced to recognise the vali<
of the capitulation, for a governor of a fortress may capitulate
under his personal responsibility without any authorisation
tn>m his Government" * His powers do not, however, extend
beyond what is necessary for the exercise of his command.
He has no capacity to treat for the definitive cession of the

Boofib, op. e* MO. IS* Freneb M*mi* TUrn*, p. 86.

1 K.D.L September-October, 1888, p. 816.

250 WAR RIGHTS ON LAND CHAP.

place under his command, for the surrender of a territory, for
the cessation of hostilities in a country situated beyond the
sphere of his authority. 1 He has power to conclude a military
convention but none to make or agree to terms of a political
nature or such as will take effect after the termination of
hostilities. In March, 1865, Lee wrote to Grant proposing a
meeting at which it should be arranged to " submit the subjects
of controversy between the belligerents to a military conven-
tion." This letter Grant sent on to Stan ton, the War Minister.
In reply, Grant received the following letter, which was written
by Lincoln himself but signed by Stanton :

The President directs me to say to you that he wishes you to
have no conference with General Lee, unless it be for the
capitulation of Lee's army, or on solely minor or purely military
matters. He instructs me to say that you are not to decide,
discuss or confer upon any political question. Such questions the
President holds in his own hands and will submit them to no
military conferences or conventions. Meantime you are to press to
the utmost your military advantage. 2

The extent and limitations of the powers which the
commander of the army of a constitutional country has as
regards capitulations are accurately expressed in this letter.
A capita- The capitulation once signed, the terms of the contract must
be strictly observed. "So soon as a capitulation is signed,"
signed, it says paragraph 146 of the American Instructions, " the capitu-
adhered ktor h* 8 no right to demolish, destroy or injure the works,
to. arms, stores or ammunition, in his possession, during the time

which elapses between the signing and the execution of the
capitulation, unless otherwise stipulated in the same." Some-
times a clause to this effect is inserted in the conditions but it
is unnecessary, being implied in the contract. " It is an
implied condition in the capitulation of a place that the
capitulating force shall not destroy its fortifications or stores
after the conclusion of the agreement." 8 The second article of
the capitulation of Metz provided that

The fortress and town of Metz, with all the forts, the material
of war, stores of all kinds, and all public property, will be handed

1 French Manuel it, FUmge, p. 05.
3 Draper, American Civil War, VoL III, p. 561.

* Professor Holland's note to Article XXXV 7 in British official Laws and
OmUomtof War. See, too, French Manuel (p. 64).

ix CAPITULATIONS 251

over to the Prusftian Army in the ssme condition in which it stands

ut ili.- MUM* of signing ihU agreement '

Article 4 of the act of capitulation of Port Arthur in 1905
it iluwii that

If it i discovered that the Russian army ha* dmtroyed or
modified in MIT manner the nuu in which the articles enumerated
in a. [forta, batteries, ships of war, vessels, arms, flags,

hones, munitions of war, monie* and other public property] happen
to be at the moment of the sigmr the capitulation, the

Japanese army will consider the present negotiations null and will
resume its liberty of action.*

At the meeting to discuss the terms of capitn the

Ruasian plenipotentiary requested that a delay of three hour*
might be granted before this article waa to take effect The
Japanese representative could not agree, but it was arranged
when the agreement was signed, a letter should be dis-
patched at once to General Stoessel, and that the duty of
preventing all destruction should commence an hour and a
half after the despatch of this letter. 9 Stoessel, has been The
blamed by uninformed writers in the Press for destroying war
material during the negotiations for the surrender. Had he tioo of
done so, he would have done no wrong: but as a matter of Arthur m
net, he seems to have destroyed nothing but the flags ; 4 a very
capable correspondent relates that no effort was made by the
Russians to destroy the forts in the west or even to damage the
guns, before evacuating th< m. .md he asks M Surely it is no
small responsibility for a general to surrender a fortress in-
tact when he might have destroyed the defences and guns with-
iltcration in the subsequent terms." 5 The basis of the
newspaper complaints against Stoessel is the fact that during
the negotiations some fires broke out in the city and on the
Japanese representative pointing this out to his Russian
colleague, the latter sent back a message requesting that they
it be stopped. It was purely a special arrangement
between the belligerents ; the Russians agreed to put out the
fires if the Japanese suspended hostilities. 9 A commander

1 German Official tf Mtory, Part II, Vol. I, Appendix 78.

Ariga, op. <*, p. 310. ibid, pp, 309-310. Ibid. p. 308.

Aahmad.BarUeU, Port Artkmr. ,.

Ariga, op, of, p. 313,

252 WAR RIGHTS ON LAND CHAP.

who has brought a fortress to the point of capitulating, may
make the non- destruction of property during the negotiations
a condition for granting better terms, and it m ay suit, the
besieged's interests to meet him in the matter. In the absence
of such a special arrangement, the commandant has a perfect
right to dispose as he chooses of his mattriel up to the moment
of the signing of the act of capitulation. 1 On 12th December,
1870, the French commandant of Phalsbourg capitulated uncon-
ditionally ; he had offered to capitulate before on condition of
being allowed to march out with arms and baggage, and on this
offer being refused, he destroyed all the war munitions in the
place, including 12,000 muskets with 800 rounds of cartridge for
each, and huge stores of gunpowder. He was honoured for his
soldierly conduct by friend and foe alik< . Though he had
surrendered at discretion, the Germans allowed the garrison
the privileges which usually accompany a capitulation " with
the honours of war," and two years later the French commission
of inquiry decreed a special vote of thanks to the commandant
The and garrison. 2 Bazaine was tried by a council of war for sur-
^"itula ren dering Metz and was sentenced to death 8 and military
tionof degradation for treating with the enemy "without having
previously done all that duty and honour prescribed." Among
the charges for which he was tried and condemned was that of
failing to destroy his arms and ammunition before surrendering. *
In a General Order addressed to the army of the Rhine after
the completion of the preliminaries of capitulation, Bazaine
urged his troops to " shun acts of indiscipline, such as destruction
of arms and materiel, since, according to military usages, places
and armaments will be restored to France when peace is signed." '
If the reason given here is unsound, the advice is unimpeach-
able. Bazaine's attitude after the capitulation was strictly
correct, but there was nothing in war law, usage, military
tradition or etiquette, to prevent his destroying his munitions

1 Pillet, op. tit. p. 362.

* CasseU's Hilary, VoL II, p. 41 ; Bonfils, op. cit. sec. 1285.

1 The death sentence waa commuted to 20 years' imprisonment but Bazaine
escaped to Italy and finally died at Madrid.

T. Robinson, The Betrayal of Metz, pp. 364, 375-8.

Hosier, Franco- Pruunan War, Vol. II, p. 121 ; Cassell's 7/wtory, Vol. I,
p. 296.

ix CAPITULATIONS 253

before the capitulation. N<>t . .. n the eagles were destroyed,
had been irsonal to be

hand* of tli. Germans, as well as 400
piece* of .in. I !" Ileuses.* The whole story of

Mets w Htill a myster Bajuiine fail in loyalty or only in

nerve? It is hard to concei . hn.: m war-

tried veteran who had fought It in way from

Inn md owetl nothing to fat* ii

tun.-, illicit have been expected to
!> name part at the great fortress on the Moselle whi -h

Italian Kapp had played at aimth. r ^i-
Napoleonic France DanUic on th \Vtula M \ty-three years
-. Thin, at any rate, is certain he * ;. his peers,

record stands written and signed. \\ Bazaine

lost his love of France when the eagles were taken
flag, or whether ho was constitutionally or morally unliit-<I for
the position which circumstances had assigned him to, there is
no questioning the verdict of the council of war that hr tailel
in his military honour and duty. One cannot h<-lp pictu
the blackened ru rts and the heaps of scrap-iron guns

that Totleben or Osman would hav. left as spoil of war t<
Germans had they been in his place. Only the grant of very
favourable terms could have justified the surrender of so rich a
prise as Mets, with all its wealth of warlike materiel intact.
Williams, the gallant Englishman who held Kara for the Turks
i n 1 s55, handed > : < irtreas intact to the Russians, but then

he surrendered with the honours of war and on advantageous
ti-nns. H. ha.l thivat.-m-ii '..l>mM al! BJSgUIsi! M-uru .- 11
insisted upon an unconditional surrender. 1

The same principles which apply to the maUriel of a fortress
which has capitulated are applicable also in the case of the
personnel. Once the capitulation is signed, the position
stereotyped and fixed ; the statm quo of the moment of signa-
ture must IK- honourably maintained. The victorious belligerent
is justified in expecting that not only the maUrid but the
personnel of the capitulating force shall be handed over to him

HMO Official JKrfory, Part II. VoL I. p. 901.

CbiMU'a JSTMtory, VoL I, p. 80S.

NoUii, Ifara^aMjl AMMO, VoL II. ,.

254 WAR RIGHTS ON LAND CHAP.

in accordance with the terms of the convention. After the
capitulation of Metz and before the actual surrender, over 1 ,000
nch officers made their escape 1 some, it is said, because
th. y thought it a dishonourable condition to require of them a
written parole (Thonneur.* Yet one may question whether they
did not dishonour themselves more by escaping as they did than
they would have done by signing their names to a parole.
Before the capitulation they might have legitimately escaped
(if they could), or after the actual surrender, but to withdraw
at the time they did was to fail in that strict good faith which
is required in the execution of a military convention.

Troops which have capitulated become prisoners of war, but
sometimes the terms of the capitulation provide for some or all
become of them retaining their liberty. When Belfort surrendered in
February, 1871, the garrison were allowed " free withdrawal with
the honours of war, in recognition of their brave defence," and
they marched out with their "eagles, colours, arms, horses,
carriages, military telegraph apparatus, as also the baggage of
the officers and kits of the men, and the archives of the fortress." 8
At Potchefstroom, which capitulated " with all the honours of
war " in 1881, the troops were allowed to pass into British
territory. 4 But at Manila in 1898 the troops became prisoners
of war, though they had capitulated " with the honours
of war ; " however, as peace followed at once, they were sent
back to Spain immediately and not brought into captivity. 6
Article 2 of the convention for the capitulation of Kars in
1855 provided that " the garrison of Kars, with the Turkish
commander-in-chief, shall march out with the honours of war
and become prisoners." 6 Unless it is otherwise stipulated in

1 Cassell's History, VoL I, p. 304.

* Robinson, Betrayal of Metz t p. 336.

1 German Official History, Part II, Vol. Ill, Appendix 172.

Bellairs, Transvaal War, 1880-81, p. 272.

Titherington, op. cU. p. 377.

6 Nolan, War against Russia, VoL II, p. 532. The form of capitulation
which was given in the 1899 edition of the British Manual of Military Law,
p. 1881, but not reprinted in the Edition of 1907, contained the following
clause, supported by references in the margin to Martens' Recueil de Trails :

"The garrison shall march out from the gate at (10a.m.) on the

.day of with all the honours of war, including colours flying and

drums beating, and shall lay down their arms on the glacis, and shall be
transported as prisoners of war to such places as may be decided upon."

ix CAPITULATIONS 255

terms of surrender, a cap < garrison roust be con-

sidered as ordinary prisoner* of war. Usually, however, as an
act of grace, the officers and functionaries of similar standing
are allowed to return to their homes on giving their paroU
(Tkunneur and there are a few instances of the same privilege
being extended to the rank and file. I shall deal with the
question of paroling in the next cha j

war materiel and public properties and monies of a Uj"l u
as or force which has capitulated pass to the conqueror.
Private property, except arms, horses, and military papers, are
free >propriatiin umi- io IV of the Beglement.

Usually, officers are allowed to retain their swords, and when
the capitulut with the honours of war/' the men keep

I arms as well 1 General Voigts-Rhetz, the first military
delegate of Germany, suggested at the Brussels Conference that
to allow officers to keep their swords while depriving the
soldiers of their weapons was to introduce a dishonourable
condition into an armistice, but he was not supported by the

r delegates, and the practice is a common one. 1 If, as in
th. I'.ntish army, the officers' arms are their private property
while the men's are provided out of public funds, the practice
is logical as well as courteous. After the Port Arthur
capital it ion, some difficulty arose as to the interpretation of
7 of the convention of surrender, which allowed the
Russian officers d porter leurt epees. The officers who went to
Japan as prisoners of war, in preference to giving their parole,
rl.uim.l th.it th--\ h.i'l th. r:-h' fed MSJT th.-ir .\\..nU. l'r-
fessor Ariga admits that the word porter is misleading; the
word emporter (fepee), as used at Metz, or coneerver (Sedan
emmenfr (Belfort), would have been clearer. But as Article VIII
of the Rtylement lays down that prisoners of war are subject to
the laws, regulations, and orders in force in the army of the
capturing State, and as no one in Japan is allowed to wear a
sword except military and civil functionaries in uniform, the
wordsof the act of capitulation were ruled by the authorities
to confer merely a right of property in the swords. 1 Horses,

1 At Potchehtroom in 1881-* capiluUtion with hoaoun-tlM men't
rifle* were umodered, but this U unusual.
* Brunei* RB. p. 208. > Arifl* op. c*. p, 319.

256 WAR RIGHTS ON LAND CHAP.

butnot ovi'ii whrn pri \.ite property, are usually > <1. In this

horse*, respect the practice of the Secession War was more generous
than that usually followed in Europe. At Vicksburg, mount* d
officers kept their horses, and at Appomattox the same
privilege was granted to the men who n 1 horses or mules
they would want the animals for putting in a crop, Grant said. 1
General Stoessel wished to present his charger to General Nogi
after the fall of Port Arthur, but the latter courteously
intimated that he could not accept tin- animal, as it was
< -saury to hand it over to the Japanese Commissioner :il..n_^
with the other horses: he promised, however, that he would
obtain it afterwards through the proper issuing chanm-l and IIP
would keep it, as General Stoessel desired. 2 If public horses are
not confiscated and if private chargers are not sequestrated, it
is owing to an act of grace on the part of the victorious
belligerent, who is under no obligation founded on convention
or usage to allow the concession. Horses are too valuable a
means of war to be assimilated to ordinary private property.

Private Although officers and men have a right to their personal
property, practical considerations require a limit to be put to

Uimmune. the nature and extent of the property which they shall be
allowed to take with them. The Confederate officers at
Vicksburg claimed the right to take their slaves as " private
property " ; to this Grant naturally demurred ; he could not be
expected to endorse the view that a black slave and a black
portmanteau were, in essence, one and the same. 8 As to the
amount of baggage each officer and soldier can take with him,
the rule followed by the Japanese at Port Arthur appears t In-
most commendable. They allowed the men to take away their
tents and " necessary personal effects," the officers to take their
baggage within the limits of the weights fixed for correspond-
ing ranks in the Japanese army, but reasonable excesses were
not objected to. 4 Such property as had to be left at Port

1 ( irant, Memoir*, p. 632. The form of capitulation given as an example in
the 1899 edition of the British Manual of Military Law, allows officers,
whether paroled or not, to retain their horses ; but no such privilege was
granted to the Boers who surrendered with Prinsloo or on other occasions
during the last South African War.

2 Kinkodo Company's History, p. 946.

Draper, American Civil War, Vol. HI, p. 62. 4 Ariga, op. cit. p. 312.

ix CAPITULATIONS 157

Arthur was to be entrusted to the Russians who remained in
the Hospitals or to the ordinary inhabitants of the town.
Qeoeral Btosjatj .-m-i nog othtj oOa n bankd opsj HstJi
effect* to the European merchants of the new town. At Mete,
the baggage left behind by the French officers was protected
he Germans and permission was granted to the owners to
remove it within six months after the establishment of peace
<r th.-ir being set at liberty. A somewhat leas liberal arrange*
ment was necessary at Port Arthur, a town which was not, like
Mets, situated in the midst of a civilised country and which
had, too, to be made ready for a possible attempt to retake it
hermore, Japan needed all her soldiers for the Manchurian
War and could not spare a garrison to protect the private
property left in Port Arthur from the robbing of the Chinese
and Chunchuses. The Japanese Commission declined, there-
fore, to assume any responsibility as regards the private property

tie Russian officers. 1
In the following tabular statement I have tried to show the Table
manner in which certain forms of public and private property
have been treated in some modern capitulations. The terms ^
of the capitulations are not always very full or very clear 1
so far as it goes, the statement is, I think, useful and instruc-
tive as a rough guide.

</. p. fift.

TABULAR STATEMENT SHOWING HOW CERTAIN F<>|;\

Capitulation*

War vMttritl, etc.

Arms of
Troops.

Officers' Swords.

ivivatf
Property.

m .... i .. . i

Siirrntirfnj^vl

RAia.ii io<l

Itofjiiii ,.,1 1

Vick*burg(1863) ...

Surrendered.

Retained.

Retained. 1

Appomattox(lM5).

Surrendered.

Retained.

I
Retained.

Sedan (1870)

Surrondorod.

Surrendered.

Retained by paroled
officers, others not

111. Ilti..!H'<i.

i: : ii... il.v pooled
officers, others ai

DMQtkOMtL

Stnwburg(1870) ...

Surronderod.

matawl,

Retained, j

If oU (1870)

Surrendered.

Retained.

Retained. 1

Belfort3(1871) ...

Eagles, colours, car-
riages, telegraph appa-
ratus retained, other
mattrid surrendered.

Retained.

Retained, i

BiUchcS(1871) ...

Fortress artillery sur-
rendered, rest retained.

Retained.

Avliar (1877) (Muk-
tar Pasha's capitu-
lation).

Surrendered.

Retained.

Wei-hai-wci(1895)...

Surrendered.

Retained.

Santiago (1898) ...

Surrendered.

Surrendered.*

Retained.

Manila* (1898) ...

Surrendered.

Retained.

Veriie>fontein7(i900)
jPrinaloo's capitu-

Surrendered.

None.

Retained.* I

Port Arthur (1905)...

^ -^ ^_^^_^

Surrendered.

Retained.

Retained. |

The terms of the Bclfort capitulation provided for the archives of the fortress being token by 1

documents, up to a limit of 50 Ibs. per Regiment, i

KBN DBAI.i \\lin IX Kl<

I: - 1, II - ,

WA A | ...-,

< "The

:....-..

- (ft

Drum Jtfmein. p. |.

.. //., . ; , n

II. VoL I.

IfiJtory. PL II. VoL I,

Vol. Ill,

A <mpituktloo " with UM honooni of

war." Iriiy+rauck im Urndtntyt. p.

Marten^ la Pois * to

word* abould b

The Span Urd. made a hard flfht lor
UM retention of UM meo't anM,Wl tk*

! W

goodaootto
the tenne of

(Article 1 of

;. ,,//,: ,fWLl?,| Mi

; thon of the Port Arthur

CHAPTER X

PRISONERS OF WAR

Conventional Law of War, Hague Rtgkment, Articles IV to XX.

ARTICLE IV.

Prisoners of war are in the power of the hostile Govern-
ment, but not of the individuals or corps who capture them.

They must be humanely treated.

All their personal belongings, except arms, horses, and
military papers, remain their property.

ARTICLE V.

Prisoners of war may be interned in a town, fortress,
camp, or other place, and bound not to go beyond certain
fixed limits ; but they cannot be confined except as an indis-
pensable measure of safety, and only while the circumstances
which necessitate the measure continue to exist.

ARTICLE VI.

The State may utilise the labour oi prisoners of war
according to their rank and aptitude, officers excepted. The
tasks shall not be excessive, and shall have no connection
with the operations of the war.

Prisoners may be authorised to work for the public service,
for private persons, or on their own account.

Work done for the State is paid at the rates in force for
work of a similar kind done by soldiers of the national army,
or, if there are none in force, at a rate according to the work
executed.

When the work is for other branches of the public service
or for private persons, the conditions are settled in agree-
ment with the military authorities.

The wages of the prisoners shall go towards improving
their position, and the balance shall be paid them on their
release, after deducting the cost of their maintenance.

CH. x PRISONERS OF WAR 261

ARTICLE VIJ.

The Government into whoee hands prisoners of war have
fallen ia charged with their maintenance.

In the absence of a special Agreement between the
belligerent*, prisoners of war ahall be treated as regards
board, lodging, and clothing on the same footing as the
troope of the Government who oaptnred them.

ARTICLE VIII.

Prisoners of war ahall be subject to the laws, regulations,
and orders in force in the army of the State in whoee power
they are. Any act of insubordination justifies the adoption
towards them of such measures of severity as may be
considered necessary.

rejoin their own army, or before leaving the territory
occupied by the army which captured them, are liable to

Prisoners who, after succeeding in ^*ping t *** again
taken prisoners, are not liable to any punishment on account
of the previous flight.

ARTICLE IX.

Every prisoner of war is bound to give, if he is questioned
on the subject, his true name and rank, and if he infringes
this rule he his liable to have the advantages given to
prisoners of his class curtailed.

ARTICLE X.

Prisoners of war may be set at liberty on parole if the laws
of their country allow, and, in such cases, they are bound on
their personal honour scrupulously to fulfil both towards
their own Government and the Government by whom they
were made prisoners the engagements they have contracted.

In such cases their own Government is bound neither to
require of nor accept from them any service incompatible
with the parole given.

ARTICLE XI.

A prisoner of war cannot be compelled to accept his liberty
on parole ; similarly the hostile Government is not obliged
to accede to the request of the prisoner to be set at liberty
on parole.

ARTICLE XII.

Prisoners of war liberated on parole and recaptured bear-
ing arms against the Government to whom they had pledged
their honour, or against the allies of that Government, forfeit
their right to be treated as prisoners of war, and can be
brought before the Courts.

262 WAR RIGHTS ON LAND CHAP.

ARTICLE XIII.

Individuals who follow an army without directly belonging
to it, such as newspaper correspondents and reporters,
sutlers, and contractors, who fall into the enemy's hands
and whom the latter thinks expedient to detain, are entitled
to be treated as prisoners of war, provided they are in
possession of a certificate from the military authorities of
the army which they were accompanying.

ARTICLE XIV.

A Bureau for information respecting prisoners of war is
instituted on the commencement of hostilities in each of
the belligerent States, and, when necessary, in neutral
countries which have received belligerents in their territory.
It is the function of this Bureau to reply to all inquiries
about the prisoners. It receives from the various services
concerned full information respecting internments and
transfers, releases on parole, exchanges, escapes, admissions
into hospital, deaths, as well as other information necessary
to enable it to make out and keep up to date an individual
return for each prisoner of war. The Bureau must state in
this return the regimental number, name and surname, age,
place of origin, rank, unit, wounds, date and place of capture,
internment, wounding, and death, as well as any observa-
tions of a special character. The individual return shall be
sent to the Government of the other belligerent after the
conclusion of peace.

It is likewise the function of the Information Bureau to
receive and collect all objects of personal use, valuables,
letters, etc., found on the field of battle or left by prisoners
who have been released on parole, or exchanged or who
have escaped, or died in hospitals or ambulances, and to
forward them to those concerned.

ARTICLE XV.

Relief societies for prisoners of war, which are properly
constituted in accordance with the laws of their country,
and with the object of serving as the channel for charitable
effort shall receive from the belligerents, for themselves and
their duly accredited agents, every facility for the efficient
performance of their humane task within the bounds
imposed by military necessities and administrative regula-
tions. Agents of these societies may be admitted to the
places of internment for the purpose of distributing relief, as
also to the halting places of repatriated prisoners, if
furnished with a personal permit by the military authorities,
and on giving an undertaking in writing to comply with all
measures of orders and police which the latter may issue.

x I'UISOM KS OF W 263

ARTICLE XVI.

Information Bureau enjoy the privilege of free pontage.
Letter*, money-order*, and valuables, ae well ae parcel* by
poet, intended for prisoners of war, or despatched by them,
shall be exempt from all postal duties in the countries of
origin and destination, as well as in the countries they psss

through.

Presents and relief in kind for prisoners of war shall be
admitted free of all import or other duties, as well as of
payments for carriage by the State railways,

ARTICLE XVII

Officers taken prisoners shall receive the same rate of pay
as officers of corresponding rank in the country where they
are detained, the amount to be ultimately refunded by their
own Government.

ARTICLE XVIII.

Prisoners of war shall enjoy complete liberty in the exer-
cise of their religion, including attendance at the services of
whatever Church they may belong to, on the sole condition
that they comply with the measures of order and police
Issued by the military authorities.

ARTICLE XIX.

The wills of prisoners of war are received or drawn up in
the same way as for soldiers of the national army.

The same rules shall be observed regarding death certifi-
cates as well as for the burial of prisoners of war, due regard
being paid to their grade and rank.

ARTICLE XX.

After the conclusion of peace, the repatriation of prisoners
of war shall be carried out as quickly as possible.

ho first sentence of Article IV one may see an allusion to HM
an ancient prerogative of the warrior the right of the
iwli vidual soldier to the captive of his bow and spear. When war
supported war and men fought for what they could make out
of fighting and not for a shilling a day or its variants, the
capture of spoil and prisoners was a matter of great moment to
the professional soldier who lived by his trade and guarded his
rights and perquisites as jealously as the modern gratuity-paid
waiter. A prisoner was then a valuable asset as representing
potential ransom-money. Originally the prisoner's value was
governed by the ordinary economic law of supply and demand ;

264 WAR RIGHTS ON LAND CHAP.

he fetched a high or a low price according to the state of the
market in prisoners. Then a more or less definite scale was
introdund. In the 17th century, the ransom of a pris.m.-r
of superior rank appears to have been fixed at the equivalent of
a year's income ; that of a prisoner of inferior rank was one to
three months' pay. 1 " Sometimes prisoners whose ransoms had
been fixed were given away as presents or transferred in pay-
ment of a debt like banknotes or bills of exchange." * At the
end of the 18th century, England and France arranged a
tariff to govern the exchange and ransom values of prisoners of
war. A French Marshal or an English Admiral was assessed at
60 men and the ransom value of a man was a pound sterling, so
that a Marshal or an Admiral was valued at 60. 8 Meanwhile,
as the custom of paying troops for their services was introduced,
the taking of prisoners came to be regarded as part of the
day's work for which the soldier was paid and the prisoner was
appropriated by the belligerent sovereign to his own uses, and he,
and not the actual captor, benefited by the ransom money.
One may see the change in process in the army regulations
of Gustavus Adolphus, who left prisoners of inferior grade to
the takers but reserved such tit-bits as superior officers for
himself, recompensing the captor. 4 The system of ransoming
is now long obsolete in civilised war. It savoured too much
of chattel-slavery on the one hand, and of the methods of the
Macedonian brigand on the other, to commend itself to modern
ideas. 6

Improved The second sentence of the Article is also one which reminds
treatment one of o i dj unhappy far-off things and battles long ago." It
prisoners calls up a picture of the cruelty, torture, slavery, which were the
" ^ 1** f t^ 6 unfortunate captive in the wars of the good old days.
One may almost hear in it the clank of the chain and the swish of
the thong. In nothing connected with war has a greater improve-

1 Hall, International Law, p. 410.

* Lawrence, International Law, p. 884. * Ibid. p. 334.
4 Hall, International Law, p. 410.

* A modified form of ransom is recognised by the American Instructions,
which lay down (Article 108) that "The surplus number of prisoners
remaining after an exchange has taken place is sometimes released for the
payment of a stipulated sum of money, or, in urgent cases, of provision,
clothing, or other necessaries."

x PRISONERS OF WAR 265

ment been wrought than in the treatment of prisoners of war.
One need not go back to the times when prisoners ware enslaved
to appreciate the magnitude of the change, A hundred years
ago, England, while she prayed in her national Liturgy for M all
prisoners and captives," had no compunction about confining
tho French prisoners of war in noisome hulks and feeding them
on weevily biscuit, tail junk ami jury rum, which sowed the
seed for a plentiful harvest of scurvy, dysentery, and typhus. 1
To-day the prisoner of war is a spoilt darling ; he is treated with
a solicitude for his wants and feelings which borders on senti-
mentalism. He is bettter treated than tho modem criminal,
who i> infinitely better off, under the modern prison system,
than a soldier on a campaign. Under present-day conditions,
-such captivity as that of the Boers in Ceylon and
Bermuda and of the Russians in Japan is no sad sojourn by
tho waters of Babylon ; it is usually a halcyon time, a pleasant
experience to be nursed fondly in the memory, a kind of
inexpensive rest-cure after the wearisome turmoil of fighting.
The wonder is that any soldiers fight at all ; that they do so,
instead of giving themselves up as prisoners, is a high tribute
to tho spirit and the discipline of modern armies.

Prisoners must be treated with humanity. I have already The exe-
referred to the right sometimes claimed for a commander of "

destroying prisoners whom he finds it inconvenient to keep.* <*
To do so in civilised war would be simply sheer barbarity, allowable
excusable on no conceivable ground. The second Spanish J^
delegate at Brussels asked for the insertion of a dame
providing that :

Troops escorting a convoy of prisoners of war may not execute
them, even in the case of their being attacked daring their march
by the hostile force, with the object of rescuing the prisoners.
But if the prisoners take part in the combat in any way they
forfeit by this act their character of prisoners of war.

The Committee held that the Spanish proposition was met
by the general provision prescribing humane treatment and
simply recorded tho proposition in the Protocol as a * gloss" on

1 Lieutenant-Colonel J. Cooper- King. Tkt Aery o/ Cfc BntiA Army.
Ptft Mpro, pp. 88-90.

266 WAR RIGHTS ON LAND CHAP.

thr text 1 It clearly contains an implied and unwritten law
of war. The second sentence indicates very properly the
conditions upon which the immunity of a prisoner of \\ur
depends. He must not take any part whatever in a combat ;
it ht o. mimics to resist he becomes again an active enemy :ml
may be killed. And his resistance need not be an overt act of
violence, to warrant summary measures being taken with him.
When De Wet captured the British transport and "U"
Battery of Horse Artillery at Sannah's Post in March, 1900, by
concealing his men in the bed of the Koornspruit and capturing
the waggons and guns, one by one, as they came down the
sloping bank to cross the river and regain Bloemfontein, it
was essential to his success that the whole thing should be
done silently. The Kaffir drivers of the transport waggons were
terrorised into silence, and the gunners and drivers of the
Artillery were disarmed and warned not to call out or signal
to their comrades in any way, on pain of being shot. 2 They
obeyed ; had they not done so, it cannot be questioned that
the Boers would have been justified in shooting them not
in revenge, but because they continued an act of war by
trying to aid their uncaptured comrades and thus < n-
dangering their captors. If a prisoner of war makes himself
dangerous, he loses his privileges as such. But no such
justification can be alleged for such a wanton act as a Chilian
officer is stated to have committed in the war with Peru.
Lieutenant Struven captured forty-eight Peruvian prisoners
in 1882, and, because, they hampered his movements by their
presence, killed them in cold blood. 8 Such things are not done
in good war, though one expects to find them occurring when
South Americans fight for so elevating a cause as the owner-
ship of a guano patch. They are bad policy, as well as being
inhumane, for bloody reprisals are bound to follow. In the
fighting between the Imperialists and the Republicans in
Mexico in 1865-6, " 11,000 men of every rank in the Republican
army, ranging from General to common soldier, were shot down
in cold blood, after falling prisoners of war, without the

1 Brussels B.B. p. 212.

8 De Wet, Thru Years' War, p. 89 ; Times History, Vol. IV, pp. 37-8.

3 Markham, War between Peru and Chili, p. 270.

x I'KISONERS OF WAR 267

slight* >t in-, iiny description." 1 When, in turn, the

imhipi., Emperor Maximilian, who had authorised the
ezeci. n*i hiinsi it in the powerof Juarez, the Republican

leader, he paid the penalty for hia inhum . lie was

aentenoed to death and shot at Queretario in Juno, 1867, and,
ill his \irtut**, one cann ' It ia im ply cold-

1)1. MM!,, l muni, -r u> shoot a priaonor unieas ho has forfeited hia
in. in unity by some definite act of resistance or hostility. The
f-'iM Service Rtpdatwna (Ft II, section 97 (2)) allow
prisoners to be fired upon if they resist their escort And the
French Manual, Service des Armk* enCempayns (sect. 121),
authorises the guards of a convoy of prisoners attacked on the
march to order the prisoners to lie down and to fire upon any
who rise after having received the order.

As General de Voigts-RheU pointed out at Brussels, there are
occasions when it is absolutely necessary to use violence
against prisoners of war as, e.g., if they refuse, during a battle,
to go to the place assigned to them.' In all such cases, the
rule as to humane treatment does not forbid their being
summarily dealt with shot, in tcrrorem, if necessary. There
is also the very vexed question of reprisals affecting prisoners
of war ; with this I shall deal in a later chapter.

Prisoners of war must not be interned in unhealthy localities,
A specific proposal to this effect was put forward at Brussels by
the Spanish delegation, but was not pressed when a delegate
pointed out that it was covered by the provision as to humane pUow
treatment 4 During the Anglo- Boer War the inhabitants
St Kitts, West Indies, petitioned that Boer prisoners might be
sent to that island ; the British Government declined to accede
to the request, as the island was " subject to filarinais, which is
an early stage of elephantiasis." * Prisoners must be treated
humanely; suffering, whetln r physical or mental, must not be
intlirtcd upon them wantonly. The world has moved on since
lays when "the mile-long triumph," with its array of

1 W. Harris Chynoweth, Tke Fall qfMaximiliam, p. 5&

* Fyffe, Modem Jfertpe, Vol. HI, p. 399.

Bruneb B.R p. ill

flat . a*

* Dttaftt, MMion 1908, Vol. U f p. 38ft.

268 WAR RIGHTS ON LAND CHAP.

chained prisoners, followed a Roman consul to the Capitol.
They must be properly clothed, fed, and housed.

It must, however, often happen that prisoners have to be
put on short commons when first captured. They come, like;
uninvited guests, to share the commissariat of an army which
has provided supplies for its own needs only, and they cannot
complain if they have to take "pot-luck" at first. And wh.-n
the capturing army is itself on short rations, it cannot effect
the impossible and create luxuries for its prisoners out of aery
nothing. In part, the hardships suffered by the Union prisoners
in the Secession War are to be explained by such considerations
as these. But no such justification can be put forward for the
condition of the permanent camps in the South; the ill-
treatment of the prisoners at Andersonville, Libby, and Belle-
Isle was due to sheer bungling and criminal indifference on the
part of the Richmond authorities. There was a bitter con-
troversy at the time over this matter, and I think a somewhat
detailed examination of the subject will not be a waste of time,
if only for the purpose of comparing the treatment of the Union
prisoners by the Confederates with that of the Russian prisoners
by the Japanese in 1904-5. It is useful sometimes to compare
improper and proper methods of doing a thing.

It may be at once admitted that there were insuperable

difficulties in the way of providing adequately for the prisoners

Treat- while they were at the front. The Confederate soldiers who

Un?on f f u ghfc from 1863-5 were probably the worst-fed soldiers who

prisoners ever fought on this planet. The great army of Northern

( ~ 5 " Virginia, which " carried the revolt on its bayonets," was an

army of " tattered uniforms and bright muskets," and, to put it

plainly, of empty stomachs. 1 When it lay shivering along the

Repidan from December, 1863, to March, 1864, the ration in

this army was a quarter pound of fat pork with a little meal or

flour, and very frequently the pork only was dealt out, or

perhaps the meal, or a bundle of crackers (biscuits). 2 Until

provisions failed, the Secessionists appear to have treated their

prisoners well. In a letter written in June, 1862, McClellan

1 The words in inverted commas are from Swinton's Army of the. Potomac,
p. 16.
White's Lee, p. 333.

x I'KIM)M.RS OF WAR 269

. ! I

our wounded and prisoners as well as they can." 1 When
Swell's corps had to eras tho Potomac after Gettysburg, the
was swollen breast high by tho rains, and the soldiers
folded it with great difficulty, owing to the mud and slime of
the swift current " Most of our wounded/' says Gordon, " and
our blue-coated comrades who accompanied us as
were shown greater consideration they were ferried
boats." s Lee himself gave orders that "the wants of the
prisoners should be first attended to, as from their position they
could not save themselves from starvation by foraging or ot
wise, as the army could when in straits for provisions."* But
when the Confederates had nothing to give their prisoners, as
often happened towards the end, there was a great deal of .
unavoidable suffering among the latter. Lee had a thousand for their
prisoners with him when he made his last despairing march
westwards from Richmond, only to find that the supply trains
which had been ordered to meet him at Amelia Court House
had been sent elsewhere, and these men had perforce to satisfy
their hunger with parched corn there were no other rations
in the army. 4 When even this sorry substitute for rations
failed, " the men had nothing to eat except the young shoots of
the forest trees." * What can a commander do in such circum-
stances as these? Over and over again the Confederate
authorities had endeavoured to induce Lincoln and Grant to
revert to the system of paroling and exchanging prisoners which
had been in force at first, but was abandoned in 1864. Even
when the Confederate Exchange Commissioner, Judge On 1.1.
offered to hand over some fifteen thousand sick and wounded
prisoners without an equivalent, provided transportation was
offer was refused 9 The policy of the Washington
authorities was intelligible enough ; the South needed men, the
North did not, and to have relieved the Confederates of the
necessity of guarding, clothing, and feeding their prisoners
would have meant a saving to the South of both men and

Gordon, Rtmmitctncn, p. 17X

i-:. !*' LM p. fflo.

4 Ibid, PL 153 ; FiUhogh Ue'i LM, p.
1 Draper, op. eft. VoL III, p. 585.

White's Lm, p. 444.

270 WAR RIGHTS ON LAND CHAP.

supplies, both badly needed for the fighting line. In the North
itself the policy of non-exchange was not suffered to go without
protest. It was denounced, partly no doubt for purely political
reasons, by the Democrats who supported McClellan for th<
Presidency in 1864. The fifth plank of the Democratic plat t; .mi
ran " Resolved that the shameful disregard of the administra-
tion to its duty in respect of our fellow citizens who now are,
and long have been, prisoners of war in a suffering condition
deserves the severest reprobation, on the score alike of public
policy and common humanity." l But Lincoln and Grant were
adamant, and the policy was maintained. The prisoners at
Richmond, Belle-Isle, and Andersonville were the pawns in a
great match, and had to be sacrificed to the rigour of the game.
The state The northern administrators knew of their sufferings and
prisoners' privations, and, knowing, disregarded them, and to this extent
unpt they are chargeable with responsibility for what happen* d.
* But a far larger measure of blame attaches to the Confederate
Government. There was no proper supervision of the intern-
ment camps, and no one in authority appears to have made it
his business to see that they were managed as they ought to
have been. " Sufficient information," Lee wrote in 1866, " has,
I think, been officially published to show that whatever suffer-
ings the Federal prisoners at the South underwent were
incident to their position as prisoners, and produced by the
destitute condition of the country, arising from the operations
of war." 2 Assuredly Lee's honest belief is expressed in these
words, but on his own showing he knew nothing of the actual
state of affairs at the camps. " As regards the treatment of the
Andersonville prisoners to which you allude," he wrote, also in
1866, " I know nothing and can say nothing of my own know-
ledge. I never had anything to do with any prisoners except
to send those taken in the fields when I was engaged to the
Provost Marshal General at Richmond." 8 The very state of
the Andersonville camp shows that Lee could not have known
how it was administered. Dr. Draper draws a dark picture of
the life there. Over 30,000 prisoners were cooped up in a
narrow space ; there was no shelter from the sun or the cold

> White's Lee, p. 393. 8 Ibid. p. 444.

R. E. Lee's Lee, p. 223.

PRISONERS OF WAR 271

what the men could improvise for themselves; every
possible disease was ramj* prisoners were largely naked;

tin- dead were pitched into a ditch and covered wit ime;

the smoll of the dreadful stockade extended for two miles. 1
One <t th<- m-.-t pitoous human documents on record is an

ict which Draper quotes from the diary of a soldier of the
47th New York who was confined at Andersonville. It is as
follows:

March 36. No rations UxUy. March '27. Rations not served
till 3 o'clock. April 1. No rations issued. Aj.nl - -Rations
issued at 5 p.m. ; meal and mole fleah. April 10. No meat
April 27. Man shot for getting over the line. May 3. Our
friend the Cavalryman shot May 15. The singular cripple
kamanga shot dead July 3. No rations. July 4. Rations
full of maggots; had to be thrown away. July 13. Man shot
at dead-line, Aug. 6. Man went to the brook, reached over the
lino with a pole and cup, and was shot dead ; water coloured
with hi* blood. Sept 10. My God ! My God ! Why hast thuu
forsaken met 1

The jailer, Win, was subsequently tried by the U. S. Govern-
ment for committing murders with his own hands, condemned,
and hanged.' The wretched condition of the prisoners may be
judged from the nature of the supplies which Sherman obtained
General Hood's permission to send through to Anderson vi lie in
September, 1864, as being most needed there; they were,
inter alia, " 1,200 fine-tooth combs and 400 pairs of shears for
mg hair." 4 However great were the difficulties in the way
of providing adequately for the great number of prisoners in
the South, it cannot but be admitted that the story of
rsonvillo is a very dark page in the history of the Con-
federacy. The state of affairs at the camp was known, or might
have been known, at Richmond, for Colonel Chandler, inspector-
general of the Confederate army, inspected the camp and
reported upon its administration in no halting terms. M It is a
place," he said, " the horrors of which it is difficult to describe

1 Draper, op. eft., Vol. Ill, pp. 510-3.

Ibid. p. 514. > Ibid. p. 514.

Jftotr,VolII,p.U2. Therappliasdid not retoh
rille in time, for the pruonen were removed woo after thU, and reoeired UM
mooh-neoded article, finally only jut before the dote ol UM war (do.,
p. 143).

272 WAR RIGHTS ON LAND CHAP.

it is a disgrace to civilisation." l His report might have been
the report of a British Royal Commission, so sterile was it <>t
any good result. The Confederate authorities cannot be
relieved of their responsibility by the argument that Lincoln
might have emptied Andersonville at any moment by \\\\\\
drawing the embargo on exchanges. Lincoln's policy was a
stern one, which sought the ending of the war and the ultimate
good of the whole nation, and was indifferent meanwhile, as
great policies must often be, to the sufferings of individuals ;
but he was entirely within his rights in acting upon such a
policy if he chose. It is within a belligerent's discretion to
decline to allow exchanges or paroles, and if he does decline,
that does not free the other belligerent from his obligation to
treat his captives with humanity. Such an obligation was not
created at the Hague. It would exist, and did exist, if no
International Conference had ever sat. The worst hardships
which the Federal prisoners suffered were due, not so much to
the failure of supplies, as to the brutality of their guards, the
filth of the camp, the want of the ordinary necessities for health
and cleanliness all matters which proper supervision would
have put right. The Richmond Government was not less
enlightened than the Government of the late South African
Republic, yet the latter displayed a far higher standard of
Humane humanity under not dissimilar circumstances in 1900. After
notable ^ English prisoners were removed from Pretoria, they were
precedent confined at Nooitgedacht in the Eastern Transvaal, and there
oJJe^l they were " so badly housed and so badly fed that Viljoen him-
Viljoen. self was ashamed of the treatment they had received from his
Government. This general, on his arrival at Nooitgedacht,
where he found the 2,000 prisoners under a guard of fifteen
Boers, asked the President what he should do with them. He
was told to release them, which he did after a few genial words
of greeting." a

TreAt . There appears to have been little to complain of in the

nwntof treatment accorded to the British prisoners in the war last
ofwarly referred to up to the commencement of the guerilla operations,
the Boers. ^ft^ they fared well or ill according to the clemency or

Draper, op. cit. V,,l. Ill, p. 513.
* Times Hittary, Vol. IV, p. 467.

PRISONERS OF WAR 273

severity of the particular commandant into
chanced to fell Some of the Boer genera!*, like Viljuen and
De la Bey, displayed the highest chivalry and consideration for
their captives. On one occasion, De la Bey flogged some of his
men tor ill treating their prisoners. 1 De Wet state* that he
made no difference between his own men and the British
prisoners ; * in which case he cannot have been an ideal com-
mander to serve under, for he undoubtedly dismissed a body of
prisoners in a very miserable and destitute state on the
Basutoland border at the beginning of the year 1902.' It was The
in the "stripping" (uUxbttddtn) of the prisoners that the Boers ^
offended most against the canon of war usage. The serviceable
uniforms of the captured soldiers were too tempting a prixe tor
men who were in rags and who had no other means of refitting;
and there is some force in De Wet's contention that the seizure
was justified by the British practice of removing or burning all
the clothes left in the farms and even of taking the hides out
of the tanning tubs and cutting them in pieces. 4 For some
considerable time the Boers, like the Confederates in the
Secession War, trusted to their captures for the renewal of
their wardrobes. Sometimes the victims were dismissed with
nothing but a shirt ; sometimes, if a British column was danger-
ously nigh, they were left to make their way to it at the sedate
and solemn pace which men must adopt who have at once a
sense of personal dignity and trousers from which the buttons
have been removed " Applied as a measure of humiliation or
derision," says Professor Despagnet, " this treatment would hare
been odious ; as a measure of defence, to prevent the prisoners
rejoining their army as quickly as they might, it can be justified.
The Boers could have detained the captured soldiers, and qwi
pUUplu*jxUUmoiH$."* Generally no ill resulted from the
despoiling of the prisoners, who were able to reach a friendly
column or town without delay. But the Boer practice was
sheer barbarity and inhumanity when it involved (as it did at
times) the abandoning of starving, unarmed, and practically

Tmm Jftrfory, VoL IV, p, 607.
D Wei, TOrw rr' War, p. 261.
Tim** //irfory, VoL IV, p. 445.
D* Wet, Tfett IW.' IFor, p, m
La Qtttrrt mi ttf-itmmt, p. SOS.

274 WAR RIGHTS ON LAND CHAP.

naked men far from any white settlement or British force. The
British commanders would have been amply warrant i <l in it-sort-
ing to reprisals against Boer leaders who authorised such acts.
And certain of the Boer commandants were chargeable \\iih
Inhumane worse inhumanity still. In December, 1901, one of the Free
if^rifion 1 State commandants was put on his trial for sundry offences.

er> in this Among the charges preferred against him were the following

\\ .ii .

two:

.... (9) A barbarous act contrary to the customs of war
(placing prisoners in the firing line).

(10) A barbarous act contrary to the customs of war (driving
prisoners on foot with mounted commando and starving them).

At the trial an Afrikander scout employed by the British
Intelligence Department, who had been taken prisoner by the
commandant, testified that at the fighting at Zeegogal in
March, 1901-

Only we prisoners and the guard were in the firing line

As far as I could see the firing was always concentrated on us
prisoners, and when we wanted to put up a flag the guard said,
" if you do I shall shoot you." We were simply exposed like

this to draw the fire We were driven at a fearful rate on

foot without any food, and they were always cracking whips over
us. We begged all our food from the farms, and while I was
with the commando I never got any food from the commando.

Similar evidence was given by another witness who had been a
prisoner with the commando on the same occasion. For these
and other offences against the laws of war the death penalty
was inflicted. 1 There is ample evidence that such inhumanity
as this man was guilty of was the exception and not the rule ;
in the main, the Boers, leaders and men, treated their prisoners
not only with kindness but with tactful courtesy. When the
Gloucesters and the Irish Fusiliers were captured at Nicholson's
Nek, the conduct of their captors was beyond reproach. " The
sting of contumely," says Sir Arthur Conan Doyle, " or insult
was not added to their misfortune .... No term of triumph
or reproach came from their [the Boers'] lips .... Those who
were within reach of human help received all that could be

1 See Papers relating to Martial Law in South Africa (Cd. 981, 1902),
pp. 271-2, 290.

x ISONERS OF WAR 27$

given. Captain Rice of the Fusilien wan carried wounded
down the hill on the back of one giant, and be ha* narrated
bow the man refused the gold piece which was offered him
icn the victors gathered together and sang paalms. not
jubilant, hut Had and quavering." l

ish troops were not long in showing that they too Tfctat-
could bo chivalrous and considerate in the hour of triumph. JS?
After the Paanloberg surrender, " the troops/' says the German J^JJJ"
General Staff historian of the war, " followed the good example feu*.
. Commander-in-Chief, making a point of providing their
starved prisoners with food and drink, each man sharing, in
the most liberal manner, the little he had, while the Boers were
also treated with every consideration in other respects." The
sh officers and soldiers M behaved as perfect gentlemen
towards the prisoners." * The testimony of a responsible writer
.:* kiii'i is more valuable than the catch -penny stories of
British inhumanity which flooded the Press of Europe at the
of the war. One is surprised to find such a writer as
ir Desjardins lending his authority to back the unin-
d newspaper abuse, and ascribing the brutality of the
sh Army (which he presumes) to the fact that "a certain
number of its soldiers, accustomed to fighting away from
Europe, have not the least notion of the laws and customs of
war obtaining among civilised nations." * The transportation
of the Boer prisoners over-seas was the great rock of offence to
the Continental writers. 4 Yet such a precaution was amply
justified by the troubled and disaffected state of South Africa
.' time of the war, and is in no wise contrary to the
letter or spirit of International Law. There is not one tittle
of evidence that the prisoners were ill-treated in any way
whatever in the camps of internment in Ceylon, St. Helena, or
Bermuda. I shall give one instance to show the spirit in which
they were received and the solicitude for their feelings dis-
ci by the British authorities. A few days before the

Ortat Boer War, p. 194.

Uerma* QJIcial Account <tf UU Wmr m Son/A 4/rva (Colonel Watan'
translation), pp. 21O 1 1

m dM De*x Jfoirftt, ttth March, 1900, p. 64.

276 WAR RIGHTS ON LAND CHAP.

Paardeberg prisoners arrived at St. I !.!< na, Governor Sterndale
issued a proclamation in which he said :

H.E. the Governor expresses the hope that the inhabitants
will treat the prisoners with that courtesy and consideration
which should be extended to all men who have fought bravely in
what they considered the cause of their country, and will help in
repressing any unseemly demonstration which individuals might
exhibit

The Boers were deeply touched by the courtesy and kindness
of their reception. 1 One finds an echo here of the fine
courtesy which Grant displayed when he stopped the salute of
guns after Appomattox. " The Confederates," he says, '
now our prisoners and we did not want to exult over their down-
fall." * One thing is certain about the Boer prisoners : they them-
selves were con tent and more than content with the treatment they
received. They sang a very different tune from their champions
in the European Press ; though doubtless, if the latter had
heard (as I have) from the poor victims themselves, how they
fared in confinement, they would still have vilified perfidious
Albion for her treatment of her captives. There was a popular
demand at the time for denunciation of England, the hotter the
better, and the writers were too good journalists not to suit their
output to the popular taste. With the question of the concen-
tration camps, another stock subject for hysterical abuse, I
shall deal a little later.

Treat- I* 1 nothing was the splendid efficiency of the Japanese army

_ f administration more noticeable, in the Russian war, than in the
arrangements made in connection with the prisoners of war.
Regulations on the subject were issued by the War Minister
immediately after the opening of hostilities (14th February,

1 From an article Exiles of St. Helena, in African Monthly, October, 1907.

1 Grant, Memoirs, p. 633. Gordon (Reminiscences, p. 443) speaks of the
"marked consideration and courtesy" of the Federals at Appomattox.
Generals Gibbon, Griffin and Merritt, who were appointed to discuss the
details of the surrender with Generals Longstreet, Pendleton, and Gordon,
earn till quite unable to remember any engagements in which the Federals had
won ; they " endeavoured rather to direct conversation to engagements in
which the Union forces had been vanquished. Indeed, Confederate officers
generally observed and commented upon this spirit, which at that time
seemed to actuate the privates at well a* the officers of the victorious army "
(do., p. 462).

x i'KISONERS OF WAR 277

1904), and a little later an Imperial decree created a " Bureau

nformation relative to prisoners of war/' in aoootdanoe with

the Hague X&mmt. Besides embodying the Hague nil

i ~ - -.

^i __* I^A : ^

of International usage and might well serve M a standard and
guido for similar regulation* in future wan. They are ere*
better than the Russian rules of 1877, admirable though the
lattarare. 1 And the practice of the Japanese in regard to their
prisoners was as irreproachable as their precept IB one
only was there anything to find fault with, and in this
the enormous difficulties of transport and the difference between
Eastern and Western standards of comfort and modes of living
were responsible for the hardships suffered by the Russian
prisoners. Professor Ariga fully admits that the latter had
reason for complaining of their treatment in Manchuria, and that
in many cases they were badly fed, badly housed, and in-
sufficiently clothed But this, he argues, was absolutely un-
avoidable. Under the Japanese regulations the sum of -60 yen
(Is. i) per diem was devoted to subsisting each prisoner of
officer's rank* and *80 yen (Id.) for each soldier sums which are
about twice as high as those provided for Japanese officers and
soldiers respectively. When some Russian officers, taken
prisoners at Mukden, complained to one of their captors of the
lack of proper nourishment ami clothing, the latter answered them
in a very practical way. He showed the Russians the portion
which had been allotted to him, the Japanese, for his meal, and
which consisted of rice with some morsels of hashed meat and a
salted plum. He also unbuttoned his tunic and showed that
there was nothing underneath but flannel which is the
regulation. Whenever it was possible, as it was after the
capture of Port Arthur and Mukden, the Russian prisoners were
fed on their national black bread from the supplies taken as
spoil of war. 1

The most perfect organisation cannot entirely prevent a
certain amount of harsh treatment being inflicted upon prisoners

1 Ibr the Jipuxae ragoktioM, Mt Arigm, p. c*. pp. 91 ft ; I or
Bos** (1877), De Martm, op. or. p. 479.

Arigm, op. e*. pp 111-11. Kir IAD Hamilton WM told by UM
they Wt hungry *m Uil boor ator

their ration of rioe (8ta(f Qfictr>9 An* Book, Put I, p. ilS).

278 WAR RIGHTS ON LAND CHAP.

Compare when they are first captured The French prisoners of 1870-1
inn'of the na ^ more reason for complaining than the Russian prisoners of
|J?5J 8ri 1904-5. One may read, in the War Correspondence of the ti i m
Franco- of trainloads of prisoners arriving in Germany in the most

terrible and pitiable plight: of men scantily clad, without
greatcoats and boots, herded like animals in open trucks and
exposed to a cold so bitter that it was no uncommon thing to
find them frozen to the boards in their own filth and, in some
cases at least, exhausted beyond recovery when the destination
was reached. 1 Nor were the German prisoners in France
without good grounds for complaint. Bismarck protested
against the treatment of the prisoners confined at Orleans and
with General Faidherbe's army. The former were " penned up
in the gangways and cells of the prison at Pau. For a bed
they had a bundle of straw, and for six days only bread and
water was given them, until English and German ladies took
pity on them, assisted them from their own means, and induced
the reluctant authorities to take some care of them." Faid-
herbe's prisoners were " kept in lofts without fire, without
blankets, without warm or sufficient food, in a cold of sixteen
degrees." 2

Once Japan was reached the ration allowances were found
prisoners to be amply sufficient for the prisoners' wants, everything being
had no* ver y cheap in Japan. With a few exceptions, all the prisoners
grounds were perfectly satisfied with the food, clothing, etc., found for
pUint. them at the depots of internment. 8 Everything possible was
done for their comfort and health. Some of the officers brought
out their families from Russia to share their captivity ; others
whose families had been in Port Arthur and who had decline!
the privilege of returning to Russia on parole, were accompanied
by their families when they proceeded to Japan as prisoners of
war. 4 Interpreters to the number of 182 were attached to the
internment camps, for the convenience of the prisoners. It is
a testimony to the happy lot of the interned Russians that
some of them elected to take up their residence permanently

1 See The Time* correspondent's report in Cornell's History, Vol. II, p. 130.

(Swell's Hirtory, VoL I, p. 222. Ariga, op. cit. p. 118.

4 A similar concession the privilege of being accompanied by their
families in captivity is granted to prisoners of war by the French Reglemenl
relating to the subject (Fillet, op. cit. p. 157).

I 'KISONERS OF WAR 279

tpan when peace WM declared. 1 But the mott triking
proof of the humanity of the captor* is the generous tribute of
the Russian jurist and statesman, the late Professor De Marten*.
Those who hare read his " Peace and War" know how mercileasly Th
he could criticise any (allure to comply with the rules of Inter- JJ2j|
national Law or usage, and they can appreciate at its proper njj_
value his acknowledgment, addressed in an official minute to
the Japanese Government in November, 1906, of the "devoted
care bestowed upon the Russian prisoners of war in Japan
< luring the course of the war." s

I was only to be expected," says Professor Ariga, " that in Trmt,
Russia, the country of Alexander II and N ' II :. : ,-['[ . _;.
Imperial authors of the Declaration of Brussels and thepnmtra
RtyUment of the Hague, the Japanese prisoners would
properly treated. All the evidence shows that it was so, save
in two cases." * The two cases he refers to are the action of the
Russian army in parading the Japanese prisoners in the streets
of Mukden, which was to inflict upon them a moral indignity
and to fail in the duty of humane treatment prescribed by
Article IV ; and the very inexact returns as to the number of
Japanese prisoners in Russia which were made by the Russian
Bureau of Information. Before the peace of Portsmouth,
numbers were returned as 46 officers and 921 soldiers ; they
proved ultimately to be 2,083 in all. Except for these two
oases, there was nothing to complain of in the treatment of
the Japanese prisoners ; the regulations issued on the subject
were " very fair,' 1 says Professor Ariga. 4

The effects of prisoners of war remain their property, with The
the exception of the things especially mentioned in Article IV.
The regulations for the treatment of prisoners of war issued by of prim-
the 2nd Japanese army in 1904 contained the following*
provision :

Not only the spoliation, bat even the simple transfer, by way of
a gift, of articles of a non-warlike nature which the prisoner* have
been permitted to take with them or which have belonged to the
enemy's dead, are strictly prohibited.*

The captor, may, however, find it advisable to take charge of

Ariga, op. <*, p. 190. /Wrf. p. Ui ' Aid. p. 191.

Ibid. p. 194. Ibid. p. 111, note.

280 WAR RIGHTS ON LAND CHAP.

thoir effects temporarily. As General Voigts-Rhetz pointed
out at Brussels in 1874 and his observation was recorded in
the Protocol as an accepted " gloss " upon the text " if a
prisoner is the bearer of a large sum of monoy, it might be
taken charge of for the time, because money facilitates escape ;
a receipt should be given to the prisoner and the money should
be repaid to him later." l The Russian Regulations of 1877,
the German Official Manual and the Japanese Regulations of
February, 1904, all provide for the property of prisoners being
stored by the capturing State and returned to the owners on
their liberation. 2 It is usual to allow an officer to retain his
sword on capture, but he cannot claim to wear it during
captivity. 8

Prisoners of war are not criminals and must not be confined
exce P& M an indispensable measure of safety. If they commit
beoon- offences against common law (burglary, for instance) they may
criminal! be punished therefor by imprisonment, and infractions of
disciplinary regulations would also make them liable to penal
confinement. Apart from such cases, confinement would only
be justified where it is "deemed necessary on account of
safety." 4 In October, 1870, the German authorities had to
remove five hundred Turco and Zouave prisoners from Wahn
Heath near Cologne, to the citadel at Wesel, as the result of
the discovery of a plot among the prisoners to effect their
escape from the place of internment. 6 During the Anglo-Boer
War ' ^^ Roberts and the President of the S.A. Republic
subject exchanged correspondence on the subject of the confinement of
Ifrftiy prisoners of war. The former addressed a letter to the
and Boer President saying that he had learnt that Colonial troops who
tie. In " were captured by the Boers were treated as criminals and
1900. imprisoned in the Pretoria prison. The President denied the
fact, but admitted that a small number of prisoners who had

> Brussels B.B. p. 21..

* Do Martens, op. cit. p. 480 ; Kritytbrauch im Landkriege, p. 14 ; Ariga,
op. cit. p. 06.

9 Article 73 of the American Instructions ; Article 10 of the Japanese
Regulations of February, 1904, Ariga, op. dt. p. 94. See alao supra
pp. 265-266.

4 American Instruction*, Article 76.

Cassell's History, Vol. I, p. 423.

PRISONERS OF WAR 281

d some offence against the laws of war and were
trial, or who had either actually attempted or were
suspected of the intention of attempting to escape, had been
confined in the common prison as a measure of safety, but
apart from the ordinary criminals. Lord Roberto iiipiessui
satisfaction with thin explanation, bat pointed oat that the
British authorities made no difference of treatment in the case
of such prisoners as were suspected of wishing to escape, and
that exceptions of this kind opened the door to abases on the
part of subordinates without the knowledge of the authorities. 1
I H usual to allow a fairly wide liberty of movement to
prisoners who give their parole not to attempt to escape.*
Officers are generally given greater privileges in this respect
than prisoners of inferior rank. The Turkish officers interned
in Russia in 1877-6 and the Russian officers in Japan during
the late war were allowed to lodge with private families in the
villages near the internment dtptiU*

" Work is an element of health and morality, 114 an- 1
of war may be compelled to work by the capturing belligerent 1
The exemption of officers is an amendment proposed by the <
Spanish delegate and adopted by the Conference at the be f CM
Hague in 1907. It represents Japanese practice in the war to work -
with Russia ; the Russian officers were not forced to work, as
the prisoners of lower rank were. 6 The work must be suitable

1 DeBpagnet, op. eX, pp. 221-2. Ariga, op. of. p. 1 10.

De Marten*, op.ciLp.4T9 ; Ariga, o*x of. p. 119.
Fillet, op. /. p. 166.
Bru**eb&Rp.289,

Ariga, op. c*. p. 114. The chief rea*on for the eseeapiion is that it is
derogatory to the dignity of ~**i-b*~A officer* to haw to work beaide
their men, ren in oaptiTitj.aod that it would tend to andermiue diadpltae
for the future. But one may *unni*e that the fact that efficiency at day.
labourer* would vary inrenely with army rank in the ease of a

bann of pnaonerv nay ha ye Dean an unoxpree*ed but nererthel

After the break-up of Lee** army in 1866, the
a* a mmm of charity, by the

Confederate fanner*, and Gordon (Ktmimitctnett, p. 451) retite* an
story which bear* out the truth of what I *ay :

Binee the war eome of theee private* hare told with great relfeh of the

urrender, to any of Lee'* reteran* who might wieh to work a few day* for
food and mall wagea. He divided the Confederate employe* bito equad*
accordiag to the reepectite rank* held by them in the amy. Be wa*

282 WAR RIGHTS ON LAND CHAP.

to the prisoners' rank and abilities and must have nothing to
do with the military operations (. . . . nauront aucun rapport
aver Us operations de la guerre). The provision as to this last
point is somewhat vague. The Brussels project forbade work
having " an immediate connection (un rapport direct) with the
operations in the theatre of war," and the terms of the Oxford
Manual (Article 71) are the same as the Brussels terms.
Under the latter provision, a belligerent would certainly be
entitled to employ prisoners on military works at a distance
from the scene of war ; this was admitted by the President l
and one delegate pointed out that such a provision, worded as
it was, was on that account undesirable and suggested modify-
ing it. 2 What, exactly, the Hague Article forbids is somewhat
doubtful. Professor Holland says that " work, even upon
fortifications, at a distance from the scene of hostilities, would
not seem to be prohibited by this paragraph," 8 and Bluntschli
held that the unwritten law of war authorised the employment
of prisoners in constructing fortifications, " while the struggle is
still distant." 4 In the Crimean War, the Russian prisoners
were employed in building the British military railway at
No mili- Balaclava. 6 The best modem opinion is adverse to permitting
tAry work an y military work whatever being exacted from prisoners.
be de- Geffcken states that " if such work is not an immediate and
' direct participation in the hostilities, it at least amounts to
increasing the military force of the capturing State and the

uneducated, but entirely loyal to the Southern cause. A neighbour inquired

of him as to the different squads :

* Who are those men working over there ? "

" Them is privates, sir, of Lee's army."

11 Well, how do they work ?"

"Very fine, sir ; first-rate workers,"

" Who are those in the second group ? "

"Them is lieutenants and captains, and they works fairly well, but not as
good workers as the privates."

" I see you have a third squad : who are they ? "

"Them is colonels."

" Well, what about the colonels ? How do they work ? "

" Now, neighbour, you'll never hear me say one word ag'in any man who fit
in the Southern army ; but I ain't a-gwine to hire no generals."

1 Brussels B.B. p. 213. ' Brussels B.B. p. 289.

' Note to Article 8, p. 11 of British Official Laws and Customs of War.

4 Bluntechli, op. cit. sec. 008, note. Russell, Crimea, p. 357.

1 K1SONERS OF WAR 283

Conors ought not to be forced to assist in it
Pill, r \\..ul<! admit no military work of any kind except
perhaps such military sanitary services as are connected with
hospitals and ambulances and are therefore more or less of a
neutral character.*

The remuneration of prisoners of war for work done for the
State is to be on the scale fixed for " working pay " in the Jj^jj
capturing army. The British rates of working pay vary from Uyir
SeL a day (of 8 hours) for general labourers' work, #., as
navvies, or on the construction of drill-grounds or rifle-ranges,
to I* 44. a day for skilled artificers. The Japanese paid the
Russian non-commissioned officers and men who were employed
on public works in Manchuria the equivalent of 2rf. and \d. a
day respectively.* The French prisoners in Germany received
about \\d. for a five-hours' day's work in 1870-1. The last
named were employed in harvesting, in merchants' offices, in
workshops, and other industrial occupations. Although as
many as possible were given the opportunity to work, enough
employment could not be found for the immense numbers
ii- -I in Germany; in rim. in Stuttgart, and in other
German towns, they could be seen lounging listlessly through
the streets, eating their hearts out, " dreaming of past glories
or anxiously looking forward to the time when they would be
restored to liberty and to France." 4 It is no real humanity to
allow prisoners to spend their lives in the dull monotony of
idleness, and the provision of the sixth Article of the Riglcmtnt Article
is a laudable one. But I suggest that it holds the seeds of a
large crop of trouble in some future war. If any considerable
number of prisoners are interned in a country in which labour
is powerfully organised and represented, exception is bound to
be taken by the Trade Unions to the employment of cheap

i labour as represented by the prisoners of war. One can
imagine the outcry which would arise in, say, England or
Germany if a large number of prisoners were employed on State
or Municipal works at a time when trade was dislocated and

Qootod, Boofik, <y. <*. MO. 1127. See Hall, h+n*t*mal La, p. 407.

Pill*, op. e*. p. 14ft. > Arigm. ope e* p, 114.

GMMlft //Mtory, Vol. I, p. 423; Kr*g+~mck o Lmdkntgt, p. 14,

284 WAR RIGHTS ON LAND CHAP.

stagnant, as it would be during a war, and many citizens out
of work.

1 1 is not customary in the British Army," says Professor
Holland, with reference to the last sentence of Article VI, " to
prisoners charge the cost of the maintenance of prisoners of war against
deducted tne "' earnings, but reciprocity of treatment is expected from
from their the other belligerent" l " In France," says the French Manuel
(p. 75), " no deduction is made for the benefit of the State
from the amount of the salary earned by a prisoner (Art. 91
and following of the Regulations of 21st March, IN
Against deducting the cost of maintenance from earnings is the
consideration that prisoners are to be treated like the soldiers of
the interning State and no such deduction would be made from
the latter's working-pay. On the other hand, as the cost of
maintaining the prisoners usually falls in the end upon their
own Government, and as, though in captivity, they are still the
servants of that Government, it is fair that their services as
workmen, which are a poor substitute for their services as sol-
diers, should go to relieve the cost of the war to their country
as far as possible. In 1877-8, the Russian Government appro-
priated part of the earnings of the Turkish prisoners to meet
the cost of keeping them, handing over the surplus to the men. 2
I can find no mention of any deduction being made in the
Franco-German or Russo-Japanese war; probably none was
made ; it would have been almost heartless to charge men for
their board and lodging out of wages of Id. or 2d. a day. At
the last Hague Conference, Spain proposed that no deduction
for cost of maintenance should be made from the earnings of
prisoners of war. The proposal was defeated by 23 votes
to 2.*

The capturing belligerent is bound to maintain the prisoners
of war, but he may arrange with the other belligerent that the
latter shall bear the final charge for the expenses of main-
tenance, either as an item in the general war indemnity or as
a special repayment. Japan and Russia made such an arrange-

1 Official Lou* and CuMomt of War, p. 12.

* De Martens, op. til. p. 480.

See The. Time* of 15th July, 1907.

x PRISONERS OF WAR 285

ment in 1905. Article 13 of the Treaty of Peace provided

that:

The Government* of Japan and Ruwia hall praaent to
other, AN aoon as poaaiblo after the delivery of prisoners hat _
effected, a statement of the direct expenditure repectively ioeamd %j
by then for the care and maintenaooe of prisoners from itntt of tsatsjssof
ca|>iun< ..r Hurrender up to the tame of death or delivery,
engages to repay to Japan, as aoon as possible after the exchange
of the statement* as above provided, the difference between the
actual amount so expended by Japan and the actual amount
similarly disbursed by

When the accounts were balanced, it was found that
owed Japan a sum of nearly five million* sterling and this
paid over to the latter in November 1907.'

Prisoners are to be treated, as regards food, quarters and Prisoasn
clothing, on the same footing as the troops of the capturing uLud
army. It may therefore happen that they fare better in cap-
than in their own country and still better than their
comrades who are still campaigning. Several of the delegates Jj
at Brussels wished to provide specifically that their position quarter*,
should not be better than that of troops serving in the war, as ,**
otherwise a premium is set upon desertion and misbehaviour.*
It was not, however, found possible to make the text cover such
a point without sacrificing the requirement as to humane treat-
ment. There is little doubt that so far as material comfort goes
prisoners of war are far better off, under modern conditions and
speaking generally, than fighting troops. Compare the position
of the Turkish troops who were interned in Russia in 1877-8
and their comrades who fought through the bitter winter in
the snows of the Balkans. The former were subject to the
liberal Russian regulations as to food, etc., and if they got no
pay, they were still infinitely more mvourably situated than the
serving troops, who were wretchedly fed and whose pay had a
knack of being absorbed in the long and thirsty official channel
which led from Constantinople.

Prisoners of war are subject to the laws and regulations of

1 Kinkodo Company'. Hwrory, p. 1410; Arigt, op. e*. p. 6*.

Tit KM., 25th November, 1907.

* Bnunb B.R pp. 168, 214.

286 WAR RIGHTS ON LAND CHAP.

Prisoner* the capturing army. The French prisoners of IN 7 0-1 were
JJ^^" placed under precisely the same regulations as the soldiers u Im
captor 1 * guarded them, except that they got no pay unless they worked,
regal*. The discipline of the German army was applied to them.
" Obedience and military honours were required from the pri-
soners, and any insubordination or want of respect, even among
themselves, was punished by arrest. A soldier was shot at
Ingolstadt for striking a Bavarian lieutenant, and, although it
was pleaded that he was drunk at the time the offence was
committed, the sentence was rigorously carried out." 1 " Pri-
soners of war," says the German Official Manual, "are subject to
the laws and regulations of the country and the place in which
they are confined and more especially to the dispositions govern-
ing the national troops of that country. They must be treated
like the soldiers of the capturing State, no better, and no
worse." s And, again " Officers who are prisoners are never
the superiors of the soldiers of the capturing State but become
the subordinates of those responsible for guarding them." 8
The Russian military laws were applied to the Turkish pri-
soners in 1877-8, except that new dispositions were made as to
punishment for disciplinary offences, to take the place of the
usual forfeitures of pay or rank, which would be inapplicable to
prisoners. 4 Article 4 of the Japanese Regulations of February,
1904, subjected the Russian prisoners to " the discipline in force
in the Imperial army," 6 and Article 25 provided for some one
prisoner being told off to be responsible for the discipline of
each " barrack room " and to voice the demands and complaints
of his fellows. 6 A special Imperial Decree of February, 1905,
provided that the prisoners should be tried by a Council of War
for infractions of law and order, in the same way as Japanese
troops, and authorised special punishments for breach of parole,
conspiracy, etc. 7

Though the Rtglewwnt does not state so expressly, it is under-
"JJjkt-i stood that a prisoner may be prevented by violence, and by
; violence which may result in his death, if no less vigorous

1 Caasell's History, VoL I, p. 423.

* Kriegtbrawch im Landkriege, p. 15.
' Kritgsbravch im Landhiege, p. 13.

4 De Martens, op. cit. p. 479. Ariga, op. eii. p. 94.

Ibid. p. 96. 7 Ibid. p. 101.

x PRISONERS OF WAR 287

measures will suffice, from effecting his escape. The Brussels
ct provided that "arms may be used, after summoning,
against a prisoner attempting to escape," and the Protocol
records the views of the Conference that he might be fired
upon after otu summons. 1 This provision was suppressed by the
first Hague Conference, not because it is improper to fire upon
an escaping prisoner, but because it was deemed inexpedient
to approve this extreme measure in the Rtglcm**** As to
whether a prisoner who has been retaken while attempting to
escape may be punished therefor, there has been some difference
of opinion among jurists. The American Induction* (Art
while permitting the killing of a prisoner in flight, prescribe
that " neither death nor any other punishment shall be inflicted
upon him simply for his attempt to escape, which the law of war
does not consider a crime. Stricter means of security shall be bat only
used after an unsuccessful attempt to escape." Bluntechli's
view is the same as Lieber's.* It may be a prisoner's duty to
try to escape. The British Army Act (section 5 (3)) punishes g^ 1
with penal servitude any officer or soldier who " having been reuk
taken prisoner, fails to rejoin H.M.'s service when ai join

the same." But if it is no crime to attempt to escape, it is an
infraction of the disciplinary regulations of the capturing army,
and for this, as for any other infraction, disciplinary punishment
may be inflicted : not because the act punished is malum in *,
but because it is malum prohibitum, to use a useful legal dis-
tinction. The Brussels Code, adopting this view, subjected a
prisoner retaken k in flight to " disciplinary punishment or a
stricter surveillance," and the Hague Rtglrmfnt, going further
on the same lines, makes him liable to " disciplinary punishment "
and omits the alternative mentioned in the Brussels Project.
The point gave rise to a lengthy discussion at the Hague.
" Finally," says the Report, " it was agreed, as it had been in 1874
at Brussels, that an attempt to escape should not go entirely
unpunished, but that it is desirable to limit the degree of
punishment which it may entail especially, to prevent its being
assimilated to desertion in face of the enemy and, as such,
punished with death. ... At the same time, it was agreed in

B.R. pp. 109, 289. HafiM I RR, p, 144.

' BlunUchU, op. e*. we. 609.

288 WAR RIGHTS ON LAND CHAP.

the course of the discussion that this restriction does not apply
to oases in which the escape is accompanied by sp i >1 riivuni-
st UK.- ;mi. . untin^. -.(/.. t'> a conspiracy, rebellion or mutiny.
In such cases, as General Voigts-Rhctz observed at Brussels in
1874, the prisoners are punishable under the first part of the
same Article, which says that they are ' subject to the laws,
regulations and orders in force in the army of the State in
whose power they are,' and this provision is supplemented by
that of the same Article VIII which lays down that ' any act of
insubordination justifies the adoption towards them of such
measures of severity as may be necessary.' " l War law, there-
fore, while allowing the killing of a prisoner to prevent his
escaping, does not allow it as a punishment except where there
has been a conspiracy or plot. Anything in the nature of con-
certed rebellion may be severely punished even with death ; 2
but as regards ordinary attempts to escape on the part of
prisoners who have not given their parole, these, as the German
Manual points out, " must be considered as manifestations of a
natural desire from freedom, not as crimes. They must there-
fore be repressed by a restriction of the liberty allowed and by
a stricter detention, but not punished by death, which could
only be inflicted in the case of formal plots, by reason of their
dangerous character." 8 Articles 7 and 8 of the Japanese
Regulations of February, 1904, made prisoners re-captured while
escaping liable to the summary punishments in force in the
Japanese army, but specially exempted them from any " con-
demnation for a crime or delinquency by reason of their attempt
to escape." * If, however, a prisoner attempted to escape after
giving his word of honour not to do so, he was liable to a
" major detention " (five years' imprisonment). 6 A breach of
parole of this kind is usually treated in the same way as a breach
of parole after release on conditions (as to which presently) and
entails, in theory at least, the liability to capital punishment
" In case of violation of parole," says the German Manual,

1 Hague I B.B. pp. 143-4.

2 See Article 77, American Instructions, and the Japanese Imperial Decree
relating to the punishment of prisoners of war, Ariga, op. cit. p. 151.

* Kriegsbrauch im Landkriege, p. 14.

Ariga, op. cit. p. 94. * Ibid. p. 101.

x PRISONERS OF WAR 289

referring to prisoners who have promised not to escape, " the
death penalty is, in principle, justified

In the war of 1870-1, a point of much interest arose in con- The
nection with the escape of prisoners of war. The evasion* of,
the French oltiivm intonied in (ienuany booiine no frwjuent vwl
that General Vogel von Falkenstein issued a Decree thai each l^ n
time an officer escaped, ten of his comrades, chosen by lot, 187a
sh.Mild be confined in a fortress, deprived of their privileges as
prisoners of war, and subjected to a strict surveillance until the
escaped officer was recovered. The German General Staff jurist
justifies the Decree as a measure of reprisals. 1 But, as Pillet
observes, " reprisals are not permissible when there has been no
offence against International Law," * and it is no offence against
International Law for a prisoner to escape. Bonfils points out
that " it is contrary to the most elementary notions of justice
to try to create a solidarity among prisoners of war, and on
account of the escape of one, to aggravate the situation of the

If success crowns an attempt to escape, it has the same No pn-

- whitewashing " effect as it has in the case of the spy or the {^j^ 1
revolutionary; it purges the offence and no penalty can be
inflicted if the prisoner again falls into the hands of

enemy.

A prisoner is bound to declare his proper name and rank
No n is made of disciplinary punishment being inflicted ^

declines to do so, and presumably the effect of Article I \
is to put officers and non-commissioned officers who refuse to
state their names and rank on the same footing as privates.
Prisoners cannot, however, forfeit any of the privileges of their tbey
rank for refusing to give information on other subjects; still
less may they be tortured in order to extract information from
th'-in.aa was once the practice. Prisoners often constitute a
valuable source of information of which an enemy would be

jinxotic to fail to take advantage. There is nothing to forbid

rewarding an obligingly garrulous prisoner, but he must not

> KrHy&mmck im LondfarMf*, p 14.

Ibid. p. 14.

Pill*, op. c* p. 136.

. 1130.

290 WAR RIGHTS ON LAND CHAP.

|..-ii:ili>, line irhfl NAUM l Matr anvlhini; imnv than what
this Article requires. " This Article," says Professor Ariga,

determines the subjects on which prisoners must reply and tin-
punishment to be inflicted if they disobey, but it does not imply
that these are the only subjects on whirl i the enemy may question
them. The army which has captured a prisoner may quite properly
employ all means, provided they are humane, to obtain from him as
much information as possible regarding the enemy's movements.
That is what we did, as may be seen from the voluminous depositions
of prisoners preserved in the archives of each army corps operating
in Manchuria. We do not think that it will ever be possible to
limit the liberty of action of an army in the field, by limiting the
right to question prisoners of war. 1

A parole is a voluntary contract made between the captor
r ' and his prisoner, by which the latter obtains his freedom under
certain conditions usually on condition of not serving against
his captor during the existing war.

The army regulations of some countries place restrictions on
the powers of officers as regards the giving of their parole.
French officers are now forbidden (by a Decree of 1891) to
separate themselves from their men, whom they must conse-
quently accompany into captivity ; 2 and Russian officers cannot
give their parole save with the sanction of the Czar. In 1905,
the officers of the Port Arthur garrison were permitted by
General Baron Nogi to telegraph to the Czar asking for his
authority to their returning to Russia on* parole; the authority
was given and over 500 officers availed themselves of it. s In
Austria, officers and men are forbidden to give their parole. 4
In the British army, only commissioned officers are allowed to
give their parole for themselves and their men. 6 The
American Instructions also allow only officers to give their
parole, " and they can give it only with the permission of their

1 Ariga, op. tit. pp. 105-6. Bonfils, op. tit. sec. 1267.

' Kinkodo Company's History, p. 1110; Ariga, op. tit. p. 322. General
Htoessel's telegram to the Czar requested permission for the officers to under-
take "not to take part in the present war," and the Czar gave permission in
these terms. But, as I explain in the text, the obligation actually accepted
by the officers was much more comprehensive than this. No difficulty
appears, however, to have arisen.

Bonfils, op. tit. sec. 1267.

1 British Official Laws and Custom* of War, p. 14.

x PRISONERS OF W 291

superior, so long as a superior in rank is within reach

the parole varies. That ued in the American <
War bound those who signed it " not to serve the armies of the
Confederate States, or in any military capacity whatever against
the U.S.A. or render aid to the enemies of the latu-r, until
properly exchanged in MI. h a manner as shall be mutually
approved by the relative authorities." f The Hanoverians and
Saxons who were paroled in the Seven Weeks' War undertook
to serve against Prussia during the war. 1 A more com-
tensive undertaking was required of the French officers in
o-l. They had to " give their word of honour in writing
to serve against Germany during tin- j.r.-aent war, nor to
act against its interests in any other way." * The terms were
so worded in order to prevent the paroled officers being
employed in army offices or for the drilling of recruits or the
organisation of colonial defence, etc. 5 They have been con-
demned by Professor Pillet aa " incompatible with the duty of
the officers/' but as the same jurist adopts (as does Bonfils
too) the view of Lentner that every parole implies the obliga-
to assume any function which has any connection
whatever with military operations, 7 his objection does not
seem a very weighty one. There would appear to be nothing
objectionable but rather an advantage in turning an admitUillv
implied obligation into an express one and thus removing the
possibility of misunderstandings. As paroling is the alterna-
tive to keeping in confinement, and as it is a privilege granted
by the captor at his dix< he may reasonably demand

that it shall confer freedom and no more ; otherwise by allow-
ing officers to return on parole, he would act in his enemy's
interests, for the employment of the released officers on
military duties away from the seat of war would probably set
other officers free for service at tl It is noteworthy a

that the Japanese adopted the wider form of parole in t!

r. :.:,..<. !,,. .;.... , / -. m

Wfcr War, pp. 881, 363.

tfutory, Part II. VaL I. Appcadii 78.

K i> M.Y

Pillet, op. ci/. p. 38*.

Ibid, p. 161 ; BoofiU, op, ctt. we. 1135,

U 2

292 WAR RIGHTS ON LAND CHAP.

war with Russia. .In the war with China, they required the
Chinese officers paroled at Wei-hai-wci to undertak. that
they will not re-engage themselves in the present war between
Japan and Russia." 1 The Russian officers released at Port
Arthur in 1905, however, had to pledge themselves "on hon.ur
and by writing not to take up arms again against Japan and
not to act in any way in opposition to her interests up t< the
end of the present war." * Where a formula of this kind is not
employed, it may presumably be understood that the parole
does not forbid such military duty as is not in immediate
connection with the campaign. The few British officers who
were paroled by the Boers, verbally and in vague terms, during
the South African War, were not sent into the field again but
were employed on technical or administrative duties at coast
ports or at home. The French Manuel (p. 78) states that the
promise not to serve again during the campaign " extends to
active service against the belligerent and his allies during the
same war, but not to internal service ; prisoners liberated on
such a parole may therefore be employed in their country in
instructing recruits in depdts, in working on fortifications of
places not besieged, in maintaining public order, in fighting
against other enemies, in fulfilling civil functions or diplomatic
missions." It is not quite clear how the simple promise not to
bear arms would be interpreted by Germany, for the General
Staff Manual (p. 17) recommends that very precise conditions
should be drawn up in the parole paper on this point and that
it should be specifically stated whether the person released is
bound only not to take up arms against the belligerent paroling
him or whether he may serve his State in other spheres or in
the colonies.

Paroling Generally only officers or civil officials of corresponding
and"file s^ 118 are released on parole ; but sometimes in special circum-
stances, the rank and file are allowed the privilege as well.
When Stonewall Jackson captured Harper's Ferry in September,
1862, he paroled the whole Union force at once, with the
result that A. P. Hill's " light division " was able to reach the

1 iSakuye Takahashi, Cotes on International Law during the Chino-Japanett
War (Cambridge University Prem, 1899), p. 129.
* Ariga, op. cU. p. 311.

x l'K|sn\l-.RS OF WAR 293

v forced marches, in time for the great fight, and
-<-hi. My became McClellan had put hi* cavalry in the centre
nt In- hue, not on the flank* to cany the very present help of

layonets of five brigades to Lee's hard-pressed battalion*

* "h -ii the Federals seemed on the point of crushing them. 1
Pemberton's army was paroled i Uoc when it capitulated at
Vicksburg- " Had I insisted upon an unconditional surrender/*
says Grant, "there would have been over 80,000 men to
transport to Cairo, very much to the inconvenience of the army

he MisBissipi* l s was in July, 1868, before Grant had
put a stop to the exchanging of prisoners, and the men who
were released usually returned to the ranks as soon as an
equivalent numUr t ttu> enemy's prisoners had been restored.
Both Lee's and J. E. Johnston's armies were paroled wholesale,
in 1865 ; the war was over when these two great leaders gave
up their swords and Grant could afford to let the beaten
Confederates return to their homes. 8 In European wars, too,
there are instances of the paroling of the rank and file of the
army which has capitulated. When the Hanoverians
capitulated after the battle of Langensalza (29th June, 1866),
the soldiers were dismissed to their homes, and a similar course
was taken a little later with all the Saxon prisoners who had
been captured since the beginning of the war. 4 Political

for Prussia's generosity in these two

nsimn No similar privilege was allowed to the French soldiers

i. line in 1870-1. Both Wimpffon at Sedan and

Changarnier at Mets pressed for the privilege of returning

I- on parole being extended to the non-commissioned ranks,
but the Germans declined to let others than officers and
officials of similar standing go free. But the National Guards
and Mobile Guards were usually dismissed on the stipulation
that they were not to take up arms again at Strassburg,
apparently even without giving such a promise. 4 Such troops

Rope*, Tk* Story tf ike ChU War, Part II, Chapter 3,

Grant, JtfcMoti*. p. 330,

Ibid, pp, 831, 631 ; Draper, op. rft. Vol. Ill, p. 611.

Honor, &M retiV PTor, pp. Ml, SSS.

National Guard* and Franca- tir*ur are relieved from asking any
declaration." Article 3 of Act of Capitulation at Stnu*burg, Gennaa Ofictal
Watery, Fart 11 \pp. 49. But aw do., Itrt 11, VoL I. p. 142, M to

294 WAR RIGHTS ON LAND CHAP.

were not regarded as soldiers proper by the German.-, and it
was the latter's policy to avoid doing anything which w.uM
have assimilated them to the troops of the line as, t i
example, by taking them prisoners of war. In the war of
^77-8, the Turkish troops were frequently paroled; some
thousands were sent home after Muktar Pasha's defeat at
Avliar, and Gourko released the prisoners he captured at
Telisch, on their engaging to take no further part in the war. 1
The paroling of the rank and file of the enemy's forces was
tried at first on a large scale in the Anglo- Boer War of
1899-1902. Proclamations were issued by Lord Roberts in
March and May, 1900, in which the burghers of the Free State
and the Transvaal were promised passes to allow them t<
return to their homes, instead of being made prisoners of war,
on condition of their taking an oath to abstain from further
participation in the war. 2 The Boers took the oath readily,
but did not hesitate to break it when they could do so with
safety, and De Wet and other commandants when they
needed recruits had no compunction about bringing moral
pressure at any rate to bear upon men who were quite disposed
to regard the oath they had taken voluntarily as having been
taken under duress. 8 They found it easy to quibble away their
obligation when the British columns were out of reach and an
advocatus didboli, in the shape of an urgent commandant with
sjambok and rifle, was unmistakably and unpleasantly present.
It is unlikely that the experiment which the British tried and
abandoned will be given another trial. In the negotiations for the
capitulation of Port Arthur in 1905, Colonel Reiss, the Russian
plenipotentiary, asked that not only the officers and function-

the Capitulation of Soissons where some thousand Gardes Mobiles were
dismissed to their homes on the stipulation that they should not serve against
< icrtnany during the war ; and also Cassell's History, Vol. I, p. 496, as to the
capitulation of Thionville, where the Mobiles were dismissed with a warning
that their lives and property would be forfeited if they were again foun<l in

1 De Martens, La Paix et La Guerre, p. 481 ; Greene, The Russian Army
and Us Campaigns in Turkey, p. 416.

* Proclamations of Lord Roberts (Cd. 426, 1900), pp. 3, 7.

* De Wet, Three Years' War, p. 200. Personally I know one Boer who
twice took the oath and was twice brought under arms ; finally he was made
a prisoner of war.

x PRISONERS OF WAR 295

aries but all the garrison might be liberated on parole.
Major General Iditti, Nogi's Chief of Staff and hi* represent"
for tho purpoao of arranging the terms of surrender, replied-

allow the whole garrison to be set free, but,
amongst the troops, the volunteer* also may be liberated on
parole.

Each paroled officer waa specially permitted to take an
orderly with him ;m<l th same privilege was extended to the
officers 1 families, so that, in all, about 862 private soldiers were
actually set free, bat beyond this there was no paroling of the
rank and file. 1

If a prisoner is allowed by the laws of his country to give his
parole and is released accordingly, his Government is bound to
recognise the validity of the contract But what if the laws
forbid paroling or make no mention of it, either to forbid or
penu Vuthors generally admit that the officer or soldier

is exposed to the penalty which the law attaches to his offence,
but that his Government must nevertheless respect the parole
he has given." 1 Professor Fillet goes on to suggest a
different solution of the problem ; in such a case, he says, " the
contract made without the adhesion of the Government cannot
produce any binding effect upon the latter, and the released
prisoner must choose between being treated as refractory at
home, if he refuses to take op arms again, or, if he complies, of
being treated by the enemy like any man who breaks his parole.
The rigour of this decision would be modified if one could admit
the solution proposed by Calvo, who thinks that in such
<M pi! instances the released prisoner should give himself up again
.iii'l if he is sent back by the tat he should be regarded

as free from any obligation whatsoever." Professor Pillet's
views have the support of the American /tirfrwlum*, Article
I * the Government does not approve of the parole, the
paroled officer must return into captivity, and should the enemy

1 Arifft, op. c*. pp. 308, 309, 325; Kinkodo Company'. JTutory. p. Ilia
Professor Arigm MJI (p. 321) that the reason for allowing the orderlies to
accompany the officers was that, in the Russian army, men attendant*
" constituted a mark of distinction, a rale of military honour." and Article
XXXV of the JssjfaMffrt require* the observance of the rales of Military
honour in fixing the terms of a capitulation.

* Fillet, op. e*. p. 160.

296 WAR RIGHTS ON LAND CHAP.

refuse to receive him, he is free of his panl> "), ,-uul <>t
Bluntschli, 1 and they arc in harmony with Article X of tin-
RtgUmtnt. That Article states that " prisoners of war may be
set at liberty on parole if the laws of their country allow" and
in such circumstances and presumably only in such circum-
stances the Government of the released prisoners must
recognise the parole. The releasing belligerent is bound to
satisfy himself that his prisoners are not acting ultra viret in
giving their parole ; if he docs not do so, he must be prepared
to have them returned to him by their own Government for
internment as prisoners of war. But as regards the released
prisoner himself, " whatever are the circumstances, he who has
given his parole is bound to keop it. He disqualifies himself if
he fails to do so and is punishable if he is captured, even if his
own Government has prevented his fulfilling his obligation." s
The pun- The question of punishment for breach of parole is ably
discussed by Professor Takahashi, of the Imperial Naval Staff
College of Japan, in his work on the Chino- Japanese war. 8 He
examines the case of one George Cameron, an American in the
service of China, who was captured by the Japanese and released
on taking an oath not to serve the Chinese Government during
the war. He broke his parole and was recaptured at the sur-
render of Admiral Ting's fleet. "Some of the naval officers
insisted on putting him to death, quoting many instances in
European countries." One such case was that of Colonel
Hayne, an officer who was hanged in S. Carolina during the
American Revolutionary War for breaking his parole. Colonel
Hayne's case was discussed in the House of Lords in February,
1782. On the one side it was affirmed that hanging was the
usual and proper punishment for a parole breaker, and that
Earl Cornwallis had followed such a procedure during his
command in America. On the other hand, the Earl of Shelburne
asserted of his personal knowledge that " the practice in the

1 Bluntochli, op. cit. sec. 626 " When the Government of the paroled
officer refuse* to ratify his promises, the latter is bound to constitute himself
a prisoner anew. If the enemy refuses to receive him as a prisoner of war, he
is free, absolutely and unconditionally." See Bonfils, op. cit. sec. 1 137.

* Kriegtbravch im Landtriege, pp. 17-18.

* Takahashi, COM* on International Law dvring the Chino- Japanese War,
pp. 136-142.

x PRISONERS OF WAR 297

la** war had been totally different A greater degree of
ignominy, perhaps a stricter confinement, WM the eooseqnenee
of each an action aa breach of parole ; the penooe gnilty of it
were shunned by gentlemen. had never before entered

into the mind of a commander to hang them." Cameron waa
not executed ; he waa sent back to Japan and imprisoned until
the end of the war, when ho waa released Takahaahi states
that the proper course (which was that adopted) was to deprive
him of his privileges as a prisoner of war and plaoo him in
strict confinement ; but it would also have been quite legal to
have had him shot on the spot If he means without any form
nil, then his view cannot be upheld The correct procedure
uml.-r tho usages of war appears to bo that indicated by Article
78 of the Oxford Manual, which lays down that

A prisoner liberated on parole sad recaptured in arms, forfeit*
ighU as a prisoner of war, union, subsequently to hU liberation,
be has been included in an unconditional exchange of prisoners.

This, the milder view, is now officially sanctioned by Article
Ml : h Rtgkmeni, which adds, however, that he may be
brought before the courts. It will then be for the courts which
are not Courts- Martial but military courts established under
martial law l to decide whether his breach of parole is of such
a nature as to justify his being condemned to death. The
military codes of most countries make a prisoner who has been
paroled and who is recaptured in arms liable, in principle at
least, to capital punishment It is so in France* in Germany, 1
in America, 4 in Japan * in Great Britain th< last named Power
published an Army Order to the Army in S-.-uh Africa, on 13th
December, 1900, in which it was laid down that:

The custom of war does not permit, in the present day, the
execution of prisoners who are recaptured while attempting to
escape, but such persona may be shot or otherwise pot to death in
the act of escaping ; nor u breach of ptrofe, to4ic4 u liobU to I4t
pvmikmtHt qf

1 British officisJ La** and CWo.no/ War, p. 14

Artkle 904, ptragrtph 8, Gods of Military JoMie*.

Kntfrtrvmek im Lmadknt^ p. 17.

Amtrim /Mfrctioiu, Artkle 191

MpfaMM of S8th February 1904, Ariam, op. r*., p. 101.

298 WAR RIGHTS ON LAND CHAP.

An aggravated case of th kind is that of the Boer officer
referred to in Chapter III who broke his parole and plotted to
kidnap Lord Roberts; 1 and other cases in which the death
penalty was inflicted in South Africa may be seen in the Brit \^}\
Blue Book relating to Martial Law. They are all cases in which
some further offence was superadded to the breaking of parole
as, e.g., in the case of a burgher who was condemned and shot
for the following offences :

1. Attempted assassination.

2. Breaking the oath of neutrality.

3. Being in possession of arms. 2

For breach of parole, pure and simple, the punishment
usually inflicted in the Boer War was two years' imprisonment
with hard labour. 3 The German regulations appear to make a
released prisoner who has violated his parole in some other
fashion than bearing arms liable to a " military punishment," not
to death; and the Japanese regulations expressly prescribe im-
prisonment, instead of capital punishment, in such a case. 4 No
case of breach of parole occurred during the Russo-Japanese
War. 5

The The giving and acceptance of parole being facultative on

muTt^be k^ n sides, it is essential to the validity of the contract that the
given and released prisoners should be consenting parties thereto.
freefy and " Every release of a prisoner on parole must be free, whether it
is a question of an officer or of a soldier ; thus a State has not
the right, in order to free itself of its prisoners, to send them
back on condition of not serving again, if they have not agreed
to this condition, and this agreement must emanate from
the interested parties themselves." 6 "No dismissal of large
numbers of prisoners, with a general declaration that they are
paroled, is permitted, or of any value." 7 Everything connected
with paroling must be done carefully, cautiously, and in proper
form ; it must be perfectly clear to the prisoners what they are
undertaking, and there must be no misunderstanding on either
side as to the nature and consequences of the undertaking

1 Vide supra, p. 88.

Papers Relating to Martial Law in South Africa (Cd. 981), (1902), p. 123.
Ibid. pp. 172 ff. Ariga, op. rii. p. 101. Ibid. p. 117.

Fillet, op. dt. p. 159. 7 American Instructions, Article 128.

x PRISONERS OF WAR 199

entered i - *al that the prisoners paroled by Grant at

-burR 1863 were declared released from their parole by
the Confederate authorities, and returned to the fighting rank*
before they had been exchanged. 1 The reason appear*
to have been that the paroling was not carried out with all the
necessary formalities, and though this in denied by Grant
served aa a pretext at any rate fur tho breaking of the contract by
:i hmond Government. 1 In a matter which ia rfrtrft >rif
like the giving and acceptance of parole, no loop-hole should be
left for any quibbling evasion of the obligation undertaken. Ger-
many complained, and with good reason, that a great number of
French officers violated their paroles in 1870-1. Tho Krugt- Violate
brauek \m Landkrieyt (p. 17) gives the numbers as follows : 3 J^lJu by
generals, 1 colonel, 2 lieutenant-colonels, 3 commandants, 80 *fc
captains, and 106 other officers. It is hard to believe that in 1870-1.
an army with the great and honourable traditions of the army
f France so many commissioned officers would have failed in
the strict requirements of honour. In many cases there seems
to have been a misunderstanding on the part of the paroled
officers themselves as to the nature of the obligation undertaken
by th.-in In one case at least an officer was released after
ng a doctniH nt. drawn up in a tongue which he did not
understand. 9 On tho other hand, there is evidence that pros*
sun , official and ] -vius brought to bear on the officers who

returned to France on parole, to induce them to set the cause of
France before their personal safety and wishes, and to disregard
a promise which could be readily shown to have been exacted
under duress. One French officer, Lieutenant-Colonel Four-
fhault, after being liberated on parole at Metz, gave himself up
again to the Red Prince and begged to be sent to Germany, as
44 he feared that forcible measures would be employed by his
ruuntryinen to compel him to rejoin the army." 4 Similarly,
after Sedan, twenty officers voluntarily returned to captivity in
..nl.-r to avoid importunities to break their parole and re-enter
the army.* The French Government of National Defence dis-
played an unworthy readiness to accept the services of paroled

> DtafSr, op. c*. VoL III, p. 6S j Sherman, *<*, VoL I, p
Grant, Iftmotrv, pp. 336-7. PiUet, op. ra. p. l.

Jftrfory, Vol. II, p. 61. Ibid, VoL I, p. CO.

300 WAR RIGHTS ON LAND CHAP.

officers, and no doubt its attitude in the matter created a
general atmosphere of lax judgment as regards the parole
tfkonncur and led to its being set aside in many cases besides
those in which an informality in its administration, or a mis-
understanding as to what was undertaken, gave sonic justifica-
tion for regarding it as null and void.
The cue The case of General Ducrot shows that officers of the highest
rank were disposed to take a somewhat lax view of their duty
in connection with pledges of this sort. He was taken prisoner
at Sedan, and he pledged his word of honour to proceed thence
to Pont-a-Mousson and to report himself there, prior to being
sent to Germany as a prisoner of war. What he did is best
shown by his own evidence before the court of honour at Paris,
presided over by Generol Trochu, before which he was tried a
little later ; he stated that he proceeded to Pont-a-Mousson as
arranged,

but was told that the first train was full, and that he must wait
for the next ; and that thereupon he consider* <! himself freed from
any obligation, as he could not be responsible for the Germans not
having secured his person. He then asked if he might visit a
friend in the town, and received permission, without any pledge
being asked or given as to his return. At this friend's house, he
and his two aides-de-camp were supplied with peasants' dressr
a country cart with a load of potatoes. The general, dressed in a
blouse and trousers, with a pipe in his mouth, a peasant's hat on
his head, and bare feet thrust into sabots, rode on the side of the
cart ; one of his aides-de-camp led the horse, and the other sat on
the potatoes. In this way they passed safely through the Prussian
lines. General Trochu and the other members of the court, with
the exception of a brigadier and a lieutenant-colonel, who remained
neutral, decided in Ducrot's favour. 1

It may be admitted that Ducrot did not break the letter of his
engagement for he reported himself as he had promised ; but
assuredly he broke the spirit of it. The incident is noteworthy
mainly as showing the difficulties and pitfalls which surround
the whole subject of releases on parole. So much trouble, dis-
pute and recrimination have arisen out of paroling that on< i-
inclined to agree with Guclle's verdict that " if captivity is an
evil, it is better to submit to it wholly than, by a bastard

' CMaell's History, VoL II, pp. 60-1.

x PRISON] KS OF WAR 301

compromise, to obtain a liberty which is festiicted and often
heavy to bear

nected with the question of parole is that of exchange, TU *

exchange of prisoners of war," said the Brussels project, j^MJLrif

regulated by a mutual understanding between the * lr * r -
U -Ilitferent parties." This clause was suppressed at the first
Hague Conference. " An exchange," says the report, "can
always result from an agreement between the parties,** f so that

lared unnecessary to mention the subject in the code.

Uwrenoe speaks of exchange as being a common practice.
One of the general laws that he lays down is that " Prisoners of
war are oared for and exchanged," and in another place he says,
" Exchange has been the rule in modern times and ransom has
become obsolete.* It seems to me that exchange is almost R*.
obsolete, too. The last great war in which prisoners were
exchanged on any considerable scale was the American (
War, and in that war the system was abandoned after the first
few years. The oases in modern European wars have been
exceptional. There were some exchanges at Me tz in the Franco-
German War. In August, Prince Frederick Charles agreed to
an exchange of wounded and prisoners. " My object," he said at
m to get as many of our wounded as possible from
Metx before it suffers from the effects of bombardment and
ImutfiT." 4 Again, at the beginning of September, Bazaine
turn.-.! ;ib,,ut 750 Prussian prisoners out of the town, to save
supplies. " The courtesy of war," says Hosier, "demanded that
H lik. nuinl' rvnch should be returned, but just then

ice Federick Charles had no prisoners, having sent them off
to Germany. On September 9, however, 750 men, chosen from
.Inn-rent regiments taken at Sedan, were sent into the town,
bearing only too palpable evidence of the tale of France's
humiliation." 6 One may assume that Hosiers last words
in-lirato the real reason for the Red Prince's action and timt
IH.IU-V r.ittur th.m t ho courtesy of war prompted this exceptional
resort to the system of exchange. In the Spanish-American

tod, Boofib, op. cA. MO. USB. * Hague I B.R p 143.
-moltcNM* Urn. pp. aSS, 33ft.

stoKBMtJ Appwdixtt.

ITor, V,, II. ,,

302 WAR RIGHTS ON LAND CHAP.

War, the few exchanges that took place were also resorted to
in very special circumstances. General Shaftcr. with tin-
double object of relieving his overworked medical staff and of
disproving the idea that the Aun-rioans invariably immlnvil
their captives, released 28 wounded Span i -I > prisoners on parole,
and at the same time exchanged eight other prisoners (or
fourteen, according to one account) for Lieutenant Hobson, the
hero of the Aferrimac, and his seven comrades. 1 This was in
July, 1898 ; already, in May, a Spanish Colonel and a " military
doctor " appear to have been exchanged for two correspondents
of the New York World captured by the Spaniards. 2 How it
came about that the " doctor " was taken prisoner I do not kn< \v.
Hardly any cases of exchange occurred in the Anglo- Boer War ;
there was a kind of exchange of a few wounded prisoners at
Paardeberg, when Cronje allowed the British wounded to leave
the beleaguered camp on Lord Roberts promising to send an
equal number of the Boer wounded (whom Cronje sent out
with the others) to the German Red Cross Hospital at
Jacobsdaal, to be liberated on their recovery. 8 In the Russo-
Japanese War the only case of exchange was one between three
Russian naval officers who were taken prisoners from the
Volunteer Fleet steamer Ekaterinoslav and three Japanese naval
officers captured on Japanese transports. These officers were
considered to have been taken prisoners under special conditions. 4
" At one time," says Professor Ariga, " negotiations took place
between the two Governments on the subject of an exchange of
prisoners of war, but nothing came of them." 6

Contro- Although general exchanges of prisoners are practically

obsolete in modern wars, it is possible that they may come into

Wuhing- fashion again, and a few historical precedents bearing on the

Ho^to war ri g nt8 concerning them will not be out of place. An

1777 as interesting point arose in the American Revolutionary War.
to ex-
changes; j n 1777 an agreement for an exchange of prisoners was made
between General Washington and Sir W. Howe, in which it was

1 Titherington, op. cU. pp. 300-1 ; R.D.I. September-October, 1898,
p. 790. f R.D.I, loc. cit.

9 German Official Account of the War in Smith Africa, VoL I, p. 264 ;
Maurice, Official History, VoL II, p. 163.

4 Kinkodo Company's History, p. 989. ft Ariga, op. cit. p. 117.

o\l US OF WAk 303

merely stipulated that " ofioers shoald be given for oflosrsof equal
rank, olciiar (or lokiiar, dtiaen for oitiMO." When the agreement
eame to be carried out, the Americans objected that "a great
proportion of those tent out " by the English were not fit subject*
of exchange when released, and were made eo by the severity of
their imtlmiml and confinement, and therefore a deduction should
be made from the list" to the extent of the number of non-eflbetives.
ll..wr. while denying the alleged fact of severe treatment, and
referring the bad state of health of the prisoners to the sickness
h U taid to have prevailed in the American army at the time,
fully granted * that able men are not to be required by the party,
who contrary to the laws of humanity, through design, or even
nogUtnt of reasonable and practicable care, shall have caused the
debility of the prisoners he shall have to offer to exchange."

A further controversy on the same question arose in the war and
between England and Spain on the one side and France on the
other in 1810. England had at that time nearly 44,000 French J^^J
prisoners in her hands; France had over 11,000 English Spaln lu
prisoners and over 38,000 Spanish. England proposed to
i-xrhaiu;.- 1 1 .<)<M) FivM.'liMn'M forth.- Kii^l^h |>ri>,,n,.|>. Frail--.-
refused to agree to anything but a general exchange of all
prisoners and demanded that for every three Frenchmen one
KM irishman and two Spaniards should be handed over. To this
the English Government would not agree, rightly holding that
a Spanish soldier was far from being the equivalent in value of
tish or French one, but subsequently agreed to an exchange
on the condition that the English prisoners should first be
exchanged against an equal number of Frenchmen. This
condition was rejected and the negotiations fell through.*

In the Secession War Sherman tried to extend the principle
illustrated in the case of 1777 that a belligerent who holds
h en! thy and efficient soldiers as prisoners of war has a right to
demand in exchange men of equivalent fighting value to
justify a pretension that soldiers whose service is nearly expired
need not be accepted in exchange for men whose engagements
have a longer time to run. This claim of Sherman's wi
successfully withstood by Hood, who wrote (llth September,
1864) :

All captives, taken in war, who owe no obligations to the
captors, must stand upon the same equal footing. The duration of
/M/ma/Mma/ Low, p. 412. Ibid. p. 413.

30 4 WAR RIGHTS ON LAND CHAP.

their terms of service can certainly impose no duties or obligations
upon the captors. The volunteer of a day, and the con
the war, who may be captured in war, are equally subject to all tin*
burdens, and equally entitled to all the rights secured by the laws
of nations. This principle is distinctly conceded in the cartel
entered into by our respective Governments, and is sanctioned by
honor, justice, and the public law of all civilised nations." l

DOM an "In the absence of an agreement to the contrary," says
KCh *ufaa Bluntechli, " exchanged prisoners will not participate as soldiers

a doable in the existing war." * This is to make every exchange a double
parole an essentially dangerous doctrine. Every act of
paroling ought to be very clear and definite and to imply a
parole is to court misunderstanding and trouble. The ordin a ry
rule which governs the interpretation of legal and diplomatic
acts, that they should be construed in favour of freedom, is a
far preferable rule to apply to the case of exchanges. The
American Instructions (Article 105) make the conditions as to
not serving for a certain period one which may or may not be
expressed in a cartel of exchange. If not expressed, then there
seems to be no ground in custom or logic to read such a
condition into the agreement.

What Article XIII brings up the question What persons can be

P*"* made prisoners of war ? First, with the exceptions mentioned
in the Geneva Convention, all military individuals, combatants
or non-combatants (in the sense referred to on page 58, supra),
may be captured ; next, persons not commissioned or enlisted,
but employed permanently by an army as pay-clerks, telegraph-
operators, engine drivers, or, generally, in any civilian capacity
with an army in the field. Then come the individuals who are
not officially employed by an army, but follow it for their own
purposes, such as press-correspondents, sutlers or contractors.
These persons are entitled to be treated as prisoners of war if
they can produce a permit from the commander of the army
they accompany. Then there are a number of persons tem-
porarily employed by an army guides, for instance, teamsters,
messengers, etc., who are usually regarded as liable to capture.
No mention is made in the Reglement of such temporary
employees. Is it intended that they shall not be captured at

1 Bowman and Irwin, Sherman and his Campaign*, pp. 229-232.
1 Droit International Codi/U, Article 613.

x 1 KISONERS OF WAK 305

all ? Professor Fillet holdn that to make them prisoners would
be to treat then with unnecessary rigour. "The services," he
says, " which they render to the troops are purely temporary,
and in no way justify their being assimilated to combatant*
|,n.j,. I- BssidsSy Hiesepeaoai HI rsquisisiooed sssd sWi
assistance to the army, and it i* unjust to puninh tl.
making them prisoner ing what they had no option

to do." He goes on to point out that it is impracticable to

U such persons with a permit they are often requisitioned
for a day only, and th-ir numbers alone are an obstacle to
rinding a special am I. t-ach, which, moreover, has never

been required in practice.*

1 1 .-h civil functionaries, whether accompanying an army or Hiffc dril

ire also liable to be made prisoners of war ; to capture
war minister, for instance, or a sovereign, or a Lord Chancellor,
would bo justifiable as tending to disorganise the administrat

ic enemy State and to weaken indirectly its fighting
efficiency. The two following classes of persons are also given
tie German Manual as among those liable to capture :

1 persons whose liberty may constitute a danger to the Onma
lo State ; for example, journalUu animated by a hostile spirit, "**
ical leaden [not necessarily ministers] whose influence isJUJJ?
considerable, priesto who would excite the population, etc.

(2) The general population of a province or country which rites tasBtial
to defend itself.'

< are precedents in the Secession, Seven Weeks' and Franco-
German Wars for the seizure of notable citizens by an invading
army, but they are rather cases of reprisals than of the applica-

< >f the rule laid down in the former of these paragraphs of
the Kritgtbraudi and I shall deal with them later as such.
The principle affirmed in the paragraph in question is an *
extremely dangerous one, unless most rigidly limited to the
case of military occupation. As presented in the German
Manual, generally and unconditionally, it would justify a foreign
commander who had landed in Devon or Yorkshire in sending
a raiding party to seize and carry off the editor of the Mor*m
Port or of Tke T\m<* t or the Archbishop of Canterbury, if these

Fillet, op. eft. p. 194. /Krf. p. 463.

17.

306 WAR RIGHTS ON LAND CHAP.

gentlemen had advocated ast.-rn r.-i-i;mv to the invader in
their editorials or sermons. One cannot conceive that such a
measure as this would commend itself even to the German
school of military thought. To proscribe liberty of thought
and speech among persons who are living in their own land and
under their former Government, is to claim the right for a
State to exercise concurrent sovereignty in the State with
which it is at war. No one could seriously put forward such a
claim unless he had had the misfortune to be bred and nurtured
in a State which laboured under a peculiarly virulent attack of
Use majesM bacillus. Confined, however, to places militarily
occupied by an invader, the principle of the German Manual
may be upheld. The occupying army must make its authority
obeyed within its sphere of occupation, and to remove individuals
whose influence or utterances would endanger the general peace
is preferable to following a laisserfaire policy which is likely to
culminate in insurrection and resulting reprisals.

Non-com- Levies en masse are given combatant privileges by Article II
JUJ^UJJ of the R&glement and the individuals composing them are there-
liable to fore entitled to be treated as prisoners of war if captured,
even in Otherwise, the peaceable civil population is free from the
OI 7 liability of capture. There is only one modern historical
conacrip- precedent for capturing even the males of fighting age in a
[!.n ,. 1S ' country in which universal service is compulsory. This
precedent is furnished by Sherman's action at Atlanta in 1864,
when he took about a thousand Georgian citizens prisoners of
war, on the ground that the Confederate congress had made all
men eligible for service and that these citizens might be
detailed for duty at any time. 1 Sherman undoubtedly departed
from the accepted usage of war in this instance. An invader
has no war right such as he claimed : he can, of course, take all
necessary steps to ensure that the adult male inhabitants
remain at their homes and can punish them severely if they
attempt to join the enemy's active forces, but he has no power
under custom or convention to take them prisoners on the sole
ground that they are the material for soldiers.

The question of " Concentration " stands somewhat by itself;
but as it may be, and has been by some jurists, regarded as a

1 Bowman and Irwin, Sherman and hit Campaign*, p. 229.

x I'UI.MiM.RS OF \V.\k 307

method of putting stress on a peaceable population by making TU
them prisoners of war, it may conveniently be considered here.
Concentration camps are practically internment camps for non- HOB."
combatant*. They have been violently attacked on the ground

the laws of war do not permit ..i the inoffensive inhabi-
tants of a hostile country, old men, women, and children, being
made prisoners. 1 Generally speaking, the objection taken
neb camps is sound in principle. Article \l.\l of the
.fiftjfaruntJ inculcates respect for " family honour and rights, the
liven ot individual*, and private property," and it is an inter-
ference with this war right of non-combatant* to remove them
from their homes and intern them in a military camp. Such
an extreme measure is only to be justified by very extreme

instances; in fact, by such circumstances as make con-
centration not only imjM-ratively necessary for the success of

esponsible lx ..--ration's but also the lens of two

tor the inhabit ant* themselves. I have shown that there

are circumstances in \\ln.-h the devastation of a country is

x te<l in the Transvaal and

Free i r.'ito L> I1( , less than in some of the southern

\ '. Ameri.a in 1864-5. The United States Tb jv
amli .'l-.pt the system of concentration in J?"

1864-5; were tin- inhabitants .f the Carolina* and Georgia ution
in better case than the inhabitants of the Boer Republics
:e concent rat ion was adopted? When Sherman occu-

Atlanta in 1864, he decided to remove all th.- ritizenaif u*
from the town nil the ground t} m t his military plans required
that the town should be turned into a stronghold or place
tfarmcf. The inhabitants, he Haul to Hood, might go north
or south as th< \ ; ; rred. Hood stigmatised Sherman's COTT*
proposal as unparalleled, for studied and ingenious cruelty, by J "
anything recorded in " the dark history of war," and protested **>
against it "in the name of God and humanity." Sherman Hood,
replied that it was not unprecedented, for General Johnston had
done the same in his retreat, and it was not cruelty, but a
kindne.ss. t remove the people of Atlanta from scenes to which
their kinsfolk should have felt shame to expose them. " In the
name of common sense," he ended, " I ask you not to appeal to
1 BonfiU.op.ctl.Mo. 119& ' V. Mpnt, pp. IS*-*.

\ '2

308 WAR RIGHTS ON LAND CHAP.

a just God in such a sacrilegious m.mn< r . . Talk thus to
the marines but not to me." In a final, bitter minute, Hood
commented scathingly on the " kindness" of exiling a wlml.
city and driving men, \\ mum, and children from their houses at
the point of the bayonet ; " and because " (he said) " I charac-
terise what you call a kindness as real cruelty, you presume to
sit in judgment between me and my God." 1

But Sherman would not revoke his order. To the Mayor
and Councilman, who petitioned him to reconsider his attitude,
he replied in words that have become famous. " War is
cruelty," he said, " and you cannot refine it. You might as
well appeal against the thunderstorm as against the terrible
hardships of war. . . . Now you must go, and take with you
the old and the feeble, feed and nurse them, and build for them,
in more quiet places, proper habitations to shield them against the
weather, until the mad passions of men cool down and allow
the Union and peace once more to settle over your old homes
at Atlanta." 2

Sherman turned a cityful of people adrift at Atlanta, and

his action has been upheld by responsible writers as "amply

Kitchen- justified on military grounds." s When, in somewhat similar

yitera circumstances, military exigencies required the clearing of the

more country in South Africa, the British authorities did not, like

thanSher- Sherman, turn the inhabitants out of their homes and farms to

shift for themselves ; they removed them to camps, in which

they were free, at least, from the fear of starvation or native

violence. Which was the more humanitarian plan, Sherman's

or Kitchener's ? I submit that the answer cannot be doubtful.

No doubt, the removal of the Boer non-combatants was prompted

in part by military reasons, but the motive of humanity was

present too, and was the stronger motive of the two. Were it

not so, the inhabitants would have been simply dispossessed, as

they were at Atlanta, or sent over to the Boer lines, as was

done with certain Boer families in the autumn of 1900. This

latter measure was a still more rigorous one than concentration,

and was, moreover, objectionable by reason of the pretext given

1 Sherman, Memoir*, Vol. II, pp. 121-4. * Ibid. pp. 125-7.

* See Wood and Edmunds, Hittory of the War in the United States,
p. 403.

x 1'klSONERS OF WAR 309

nh official communique to General Botha. M I JJj^JFJ
need not nay," wrote the British commander, " how painful Urn J^ y
measure is to me, hut 1 urn forced to adopt it by the apparent jj|j*
detcrum 1 >nour and your Burghers to continue MM Bosr

ibt as to it* final issue has disappeared." > [^jtT
This was to pum-h non-combatants for the resisUnoe of tl
combatant fellow-countrymen, a measure not consonant v,
tho laws and usages of war. Earlier in the same despatch,
reference had been made to the necessity of finding provisions
.< families and the fact that information was transmitted
ho combatant Boers, as warranting the removal of the
families of Burghers in the Held from the occupied towns. I
would have been well if after these words, the moving finger.

^ writ, had rerra ng on ; for, remember

that the Boer forces were indistinguishable fr-m the peaceable
.in i iot question tho British occupant's right to
remove non-combatants who were, to all intents and purposes,
tit h*r spies or war-traitors, and his action, severe as it was,
is justifiable on these grounds. Botha protested strongly Both***
against the measure adopted by the British commander. " I pro
profoundly regret," he wrote, '* that the determination of my
Burghers and myself to contimi. tho struggle for our inde-
pendence is to be avenged by you on our wives and children,

is tho first case of this kind in civilised war of which I am
aware, and I can only protest against the measure which you
have proposed, as contrary to all tho principles of a war between
civilised peoples, and as being extremely cruel to the women
anl < hiMr. M."* One cannot but admit that Botha was in the
right as to tho particular p rred to; he wisely

attacked the weak spot in the British argument and ignored
the real and ju.-titiahle reason for the removal of the families.
But to return to the Concentration Camps. It may be admitted

the mortality th.-rein was "terribly hi^h this was
admitted by Mr. Chamberlain himself in the House of
Commons ;* but to say that the camps were instituted for the
purpose of killing off the Boer population is to be simply

1 DwpftfMt, op. c*. pi 806; Time* tfttfory, Vol. IV., p. 303.
> ** AM ffa n goA.

y/M*M,8riaiii90i, VoL l.p. 133.

310 WAR RIGHTS ON LAND CHAP.

ridiculous. The high death-rate was due to many causes. The

sites chosen for the camps were mostly chosen on jmivly military

grounds, and were often unsuitable ; the medical and sanitary

staff was at first insufficient; above all, the Boers themselves

"proved to be helpless, utterly averse to cleanliness, and ignorant

Tin- priii- of the simplest !< -im-nts of health and sanitation." 1 Yet,

| t despite faults of management and administration, the Con-

centration centration Camps were a notable effort to deal humanely with

190l-S a civil population who were the victims of a necessary military

JJJ^ policy of devastation. At the Vereeniging Conference Botha

one. made a statement which those who condemn the British

measures have consistently ignored. " To-day," he said, " we

are only too glad to know that our women and children are

under British protection." 5 If devastation is justified, then

some system of concentration is not only justified, but demanded

by considerations of humanity. At the last Hague Conference,

some of the delegates put forward the view that concentration

was implicitly forbidden, because not mentioned, by the Rlglement.

This view did not commend itself to the Conference generally,

but a Japanese proposal that internment should be resorted to

" only in case of military necessity " was recorded in the procte

verbal*

As was pointed out by the Italian delegate at Brussels,
there is a difference between the ordinary prisoners of war and

those referred to in the present Article XIII. The latter are

inadif- captured, not to weaken the enemy, but to prevent their

returning to the hostile camp after examining the position an<l

seeing the forces of the other belligerent. No measure beyond

^ri^ers what is necessary to prevent their escape should, therefore, be

of war. applied to these persona They should neither be subjected to

forced labour nor should the captor's military laws and

regulations be applied to them. On the other hand, it might

be required that they should pay for their own maintenance.

> Time* Hittary, Vol. V, p. 88. * Ibid. p. 405.

* See The Time* of 26th July, 1907. A mass of information about the
concentration camps in South Africa will be found in the Blue Books, Report*,
rtr., an the Working of Che Refugee Camps, Cd. 819 (1901), and Further
Paper*, etc., Cd. 863 (1901). Particulars will be found therein of the
organisation of the camps, the discipline, feeding, housing, etc., of the
families, as well as instructive mortality tables.

SONERS OF WAR 311

Conference recorded these views of the
Italian delegate in the Protocol 1 During the war of 1877-*,
Captain Creagh, correspondent of the Daily TtUyrapk was
captured by Cossacks while retreating with Muktar Pasha's
army from Kan; he was allowed to rujoin the Turks at
Brseroum by a circuitous route instead of being sent back to
Russia as a prisoner of war.* Japan, too, refrained from
treating correspondents and the other persons referred t

X III as prisoners of war, in the 1904-6 struggle. She

SJit tin -in l:u-k t.. ,l:i|aii. \\l. BJ tli.-y uT- h.ih'i- ! SJfSJ 10 ' h-

consuls of their respective countries. 9 In the Spanish- American
War, Spain captured the correspondents of the New York
World and held them as prisoners of war for a time, but finally
allowed them to be exchanged a privilege not granted to
prisoners generally during this war. 4 Usually it is not to a
belligerent's advantage to treat correspondents, etc., as
prisoners of war, a temporary detention and release by a
itous route being sufficent to safeguard military interests,
but it is important that such persons should have the war right
D to them by this Article, if the capturing commander
finds it necessary to detain them. All that the Article lays
down is that if they are captured, they are entitled to the
privileges of prisoners of war. On th< <th< r hand, they cannot
be assimilated to surgeons and allowed the right of neutra
as an abortive proposal at the Brussels Conference would have
laid down. 9

May a foreign officer acting as attaM with the one belligerent Cko
be made prisoner of war if he falls into the other belligerent's Jj
power? Most authorities would say, yes, if proved to haveb^iaad^
forfeited his neutral character by directing operations or by
taking an active part in hostilities in other ways. 9 To me this
view seems doubtful attach* has transgressed in the

maniK r ! th.-u th, rapturing belligerent is undoubt-

edly entitled to regard and treat him as an enemy for he has
acted as such and to detain him as a prisoner of war, but only

s/ /;i.\, /; -.;. |. :;".

ISM, p. Ttt. H ! > , .*.

Pillet, op. c*. p. 196; Holland, La** <M<* OuflMM ^ Ifor, p. 14

312 WAR RIGHTS ON LAND CHAP.

until such time as it is convenient to send him back t<> his
country. To retain him indefinitely as a prisoner is to show
disrespect for the neutral sovereign who accredited him to the
other belligerent, who is, presumably, not responsible for the
improper conduct of his agent, and who should be left to punish
the offender an officer of his army therefor. Attacks who
have not failed in their duty of neutrality cannot be made
prisoners ; but the jurists are not in agreement as to the exact
treatment to be accorded them. Professor Fillet maintains
that the captor has only one right in regard to them the ri^ht
to forbid them to remain within the lines of his army; " tin -ir
diplomatic character," he says, "assures them an entire inde-
pendence." 1 Professor Holland holds, on the contrary, that
the captor is entitled to insist on their leaving the theatre
of war and to exact from them a promise that they will not
rejoin the army they were accompanying without his consent. 2
Perhaps the truth of the matter is to be sought midway
between these two views, in a kind of compromise between the
claims of international comity and of military necessity. A
belligerent could hardly allow a captured attachd the complete
liberty of action which Professor Pillet contemplates ; but unless
there were abnormal and special military objections in any given
case, he might safely show the attach^ and the neutral Govern-
ment more consideration than Professor Holland's view would
allow. It would be unfair to the neutral Power if the capture
of its military observer were to deprive it of his services the
services of a picked man and an expert for the remainder of
the struggle. The Government in question might not be
prepared to send out a fresh attaM at once, and, in any case,
valuable time would be lost during which no military informa-
tion would be forthcoming, to the disadvantage of the neutral
power. The military interests of the capturing belligerent
would seem to be safeguarded by allowing him to use all means
to prevent the attacht obtaining information as to his forces and
A precc- movements, and to send him back by a circuitous route. When
?900. f Lord Roberts entered the Orange Free State in 1900, he
captured the Russian and Dutch military attackte and dealt with
them in the way I have described, sending them back to the Boer

1 Pillet, toe. dt. * Holland, loc. dt.

x I'KIsoM RS OF WAR 313

army by way of Lourenoo Marque*. * But the convenience of
the neutral power and its agents cannot claim precedence of the

try interest of the belligerent; ami if. in any cane, a
captured attack hat been able to obtain (unintentional!)
course) military information which might jirovo of great service

other army if he were allowed to rejoin his post, then
military necessity wouM \ H being dealt with in the way

described by Professor Holland.

I ulso venture, with diffidence, to disagree with Professor JjydjE
Holland as to the status of foreign officers acting as press cor- ^^
respondents. He places them on the same level with attack* pi
and prescribes identical trea But if foreign

officers act as correspondents, they have no diplomatic function; JJ
they are the agents of a newspaper company or syndicate, not pood,
of a sovereign power, and thi-ir quality of officers appears to me
to be merged and lost \\\ th.-ir quality of journalist*. I cannot
see that they diftVr in any way from ordinary war comwpon-

s. This is Professor Pillet's view too "the situation of
these spectators of the war," he says, "is not different from
of press correspondents and they are under the same
obligations." *

he Geneva Convention is the abiding monument of Henri The Bo
Dtmant. th< name of another great and equally unrecognised
Frenchman, Edouard Rombcrg, will always be associated with

M.Mituti..n <>t th- Bureaux for infonnation relative to pri-
soners of war. The former's work, Un Souvenir <U Solftrino,
was not more responsible for the Geneva Conference and its
result* than M. Romberg's Dt* BclligtrtnU el dt* Pri*m**tnd*
Guerre was for the Information Bureaux which the first Hague
Conference sanctioned. Some -t th. provisions incorporate

lee XIV, XV, ani X \ I had already been embodied in the
regulations of various countries and were put into practice in
some recent wars notably by Prussia in the wan of 1866 and
1870-1 ; but they lacked the international authority whi.-h
those Articles have now given them. In the Ruaso-Turkish
War, for exam ph. the Russian Government furnished lists of
th. Turkish prisoners at regular intervals to both the Turkish
Government and the English minister at St. Petersburg ; but

69. ' Pilltt. cpi eft. p. 196.

3i 4 WAR RIGHTS ON LAND CHAP.

lYM. ord.- Uirtrnis raivful h.jx.int mil that his Government
M was in no way bound to furnish information on this subject to
the Porte during the course of the war." 1 The rule as to col-
lecting objects of personal use, found on the battlefield or left
by deceased prisoners, is a notable advance on existing practice.
When General Phil Kearney, the veteran Algerian fight, -r .md
the hero of Boker's beautiful ode, " Lay him low," fell on the
field of honour, his horse and sword were sent back to his widow
by Lee's orders as a mark of courtesy towards a gallant oppon-
ent one who had two mourners his friend and his foe, as
Fitzhugh Lee said of John Sedgwick. 2 But such solicitude as
was shown here was reserved for officers of high rank, and com-
manders cared little whether the personal property of the
fallen enemy, or, indeed, of their own dead, went to enrich the
first soldier who chanced upon it or the " hyenas " of the battle-
field.

The The Bureau of Information which was established in Japan by

Bureau 86 Imperial decree upon the outbreak of hostilities in 1904 was
of 1904. administered by a director (of the rank of general or colonel)
and two secretaries (naval or military officers, or civilians of the
rank of sonin), assisted by clerks. The director was responMl>l<
to the War Minister and was empowered to call for all necessary
information from the various naval or military authorities. Tlx
functions of the Bureau were as indicated in the Hague
Articles, but it also recorded any crimes or disciplinary offences
committed by the prisoners and collected information about the
enemy's dead who fell in action. Monthly reports were made
to the Minister of War. 8

Prisoners' Although it is not expressly stated in Article XVI, it is to be
understood that letters to or from prisoners of war are liable to
censorship. 4 This is an obvious military precaution and has
always been the rule. 6 Out of the censorship in the Crimean

La Paix el la Ouerre, p. 484 ; see also p. 477.

White's Let, p. 232.

Ariga, op. cil. pp. 97-100.

See British official Laws and Custom* of War, p. 16.

See, e.g., CasseU's History, Vol. 1, p. 423, and Ariga, op. cit. p. 120, who
says: "They (the prisoners) were allowed to correspond by post and tele-
graph, in Russian, Japanese, French, English and German, after submission to
the censorship of the military authorities,"

x 1'klSOM RS OF WAR 315

War there arose a good Ule, whi :- I ahull be forgiven

r.-in-Tibiiitf I'min th. page* of Russell:

Some time ago an Engluh officer, who it now a prisoner t
heropol, received lett, his friei. ''...gland, who

were at that time ignorant of his fata. It is a rule to forward all
letters to prisoners after Uiey have been opened and read. One of
those sent to the gentleman in question was from a young lady.
She requested the officer to take Sebastopol as soon as possible,
HI i.l t.. ho sure and capture Prince Menschikoff in person, ad.:

nhe expected to receive a button off the Prince's coat, as a
proof of the young gentleman's prowess. Whon thit letter was
delivered to the officer, it was accompanied by another from the
Prince, enclosing a button, and stating that he had read the young
lady's letter, and regretted he could not accede to her views ss
regarded the taking of Sebaatopol or hiroaelf, hut that be wat
v to be enabled to meet her wishes on a third point, and that
he begged to enclose a button from hit coat, which he requested
the gentleman to forward to the lady who was so anxious to possess

\ \ 1 1 is an amendment made by the last Hague Con- The p*y
ference of a provision of the Conference of 1899, which gave JJJJJ
officers who were prisoners of war the privilege of receiving of war.
advances of pay from their captor, if they were entitled to pay
tlurinir captivity umh-r their army regulations: the amount of
the advances to be repaid by their Government The amended
Am.-:.- ninth's them to be pai.l .- n it i rvice regulations
Irprive them of pay while in captivity, and the rate authorised
is that of the capturing belligerent's army, not t h.-ir own. As

!! in the old article, the captor is to be re-imbureed, 1
as Professor Hollan.i points out. there is nothing to prevent the
latter undertaking in th. Peace Treaty to bear the cost of the
payments ho has mode. The issue of pay to captured officers
has been the rule in tn.xirrn wars. In th.- Franco-German War,
the French officers interned in Germany were paid from 1 l(k
115*. per mourn according to rank. France treated her
captives more liberally ; subalterns received 4 a month, and
generals 13 10*., and even privates were paid a rare and
hardly necessary concession. 1 The Turkish pashas, superior
officers, and subalterns who were prisoners of war in Russia in

1 Roell, OMMO, p. *&

Hall, /nfcnnlwiMf Low, p. 406 ; fillet, op. ^ ^ |M.

316 WAR RIGHTS ON LAND CHAP.

1877-8 received the pay of Russian officers. 1 In the Anglo-
Boer War, the British officers received no pay from the Boer
authorities, but the American Consul at Pretoria courteously
undertook to advance to them such sums as they required, and
to recover from the British Government. 2 In 1904-5, the
Russian Government authorised the issue of about 20 per
mensem to general officers who were captured, 12 to senior
officers, and 7 to subalterns. Russian officers in Japan received
a ration allowance of Is. 2d. per diem and also a monthly
allowance of 12s. to meet their miscellaneous expenses. 8 It will
thus be seen that great inequality, corresponding to the state of
the captor's purse for the most part, has marked the payment of
prisoners of war, and the rule allowing captured officers to be
paid at the (final) charge of their own State will clearly m;.k.
for a more fair and consistent practice in the matter. The
difference in treatment of officers and men as regards the issue
of pay is reasonably to be explained by their different standards
of living and the disproportion between their consequent
necessary expenditure. Although in a campaign officers are
ready and willing to share their men's fare, there is no reason
that they should do so under the altered conditions of intern-
ment The men, moreover, may be employed and paid for
their work, while officers may not. There is also the considera-
tion that the payment of officer-prisoners serves to make their
lot less relatively inferior to that of paroled officers than it
might otherwise be, and all nations have an interest in
encouraging that keen soldierly spirit which prefers captivity
with the rank and file to freedom without them.

Freedom Article XVIII guarantees freedom of conscience and nt
worship to prisoners of war. There may be cases, of course,

prisoners. i n which it is impossible to provide for the proper celebration
of the prisoners' worship for instance (as Professor Holland
points out), if there is no chaplain of their denomination present.

1 De Martens, op. dt. p. 479.

* The Boer Government supplied a free issue of clothes, bedding (a mattress
and two rags) and a towel, and a daily ration of a half-pound of meat, a pound
of bread, and tea or coffee, potatoes and salt (see Adrian Hofraeyr, The Story
of My Captirity during the Transvaal War, pp. 118-9).

9 See Ariga, op. fit. pp. 126, 1 12 ; Vladimir Semcnoff, The Price of Blood,
p. 126.

x 1'UISONERS OF WAR 317

The Japanese raised no objection to the practice of even the
most buarn religious culu among the KtuMian prisoner* in
1904-5. Professor Ariga mentions one which forbade iU
devotees to sleep while the moon had a certain form ; during
all this time they had to remain in the open and pray. 1 Pro-
vided religion is not made a cloak for sedition and diturbanoe,

.iliMsd nation is likely to interfere with its observance,

however grotesque or steeped in superstition, by prisoners of

war. The wisest policy, an it i the most philosophic and

il. is to follow the example of the Confederate General (the

is told of more than one) who was asked by a clergyman
with Union sympathies if he might pray for President Lan
and replied, M Certainly, I'm sure he needs :

Any difficulty which might have arisen out of the provisions The viiu
of Article XIX as to prisoners' wills is overcome by the
exceptional privileges which both English law and those
lan systems of jurisprudence which derive from the
Roman code grant to soldiers as regards the making of a " last
will :iml testament/' A nuncupative or verbal will, or a private
letter expressing the writer's wishes as to the disposal of his
effect*, is commonly regarded as having the full legal effect of a
will Tin- >..!<ii, r who is captured is still considered as b
14 on actual military service," an* I though he has not acquired a

tit- in the captor's country, a will drawn up in accordance
with the regulations inny would probably be

accepted in every case as a sound " military will "certainly by
the Probate Court of England.

Provision is usually made in the Treaty of Peace for the
speedy repatriation of prisoners of war. " Some delays," says
Professor Holland, " must of course occur, on account of
insufficiency of transport; (2) obvious risk in at once restoring
to the vanquished Power the troops of which it has been
deprived; (8) some prisoners being under punishment
offences committed during th< ir imprisonment"' Obviously
prisoners cannot be repatriated the moment peace is signed, by
being placed on a magic carpet and whisked off to their homes. "
There are many details of administration to be arranged before p

1 8* Ariga, op. fit. p 119.

' British official Loi*. 01^ CWoM o/ HW, p 17

318 WAR RIGHTS ON LAND CHAP.

they can be sent back ; baggage has to be packed and removed,

transport provided, subsistence en route arranged for. There

were difficulties <f this kind in 1*71 and in !!)():>, in th- HIM

case owing to the enormous n umber of French prisoners in

Germany, in the second, owing to the Boer prisoners being

interned at great distances overseas. The French Government

railways were put at the service of the German authorities for

the transportation of the prisoners in 1871, but, even with these

facilities, the repatriation was a slow process. The Boer

prisoners had to be brought back from India, Ceylon, Bermuda,

and St. Helena, and though the repatriation commenced within

a month of the signing of the Vereeniging Treaty, nearly three

thousand remained in the internment camps at the end of the

year. 1 The repatriation of the Spanish prisoners in 1898 was

carried out by the United States Government with exceptional

despatch. The terms of Toral's surrender provided for the

return of all the troops in Cuba to Spain, without delay, and

the shipment began on 9th August, the work of transportation

being entrusted to a Spanish shipping line, the Compania

Transntlantica Espaiiola, which was employed for two reasons :

it made the lowest tender for the service, and the Washington

War Department wished to avoid any charge of ill-treatment

of the prisoners being laid at any American door, as might have

happened had an American company been employed. All the

troops about 23,000 were embarked by 17th Septeml>< i \-

The arrangement was both humane and business-like.

Abelliger- The second exception referred to by Professor Holland is an

not delay extreme ly dubious one. There is no authority for it in the

repatriat- Rtglemcnt itself, nor in the unwritten usages of war as reflected

prisoners i n tne pages of the jurists. To allow a belligerent to retain

ec *!|"? f prisoners of war because they might be used to renew the

danger to struggle would be to sanction a possibly indefinite retention of

hwnTtheir tne ^Too^s f an amicable sovereign Power (peace having been

release, made) and to make the provisions of Article XX a dead letter.

If the capturing belligerent has to go to such an extreme length

as this to safeguard himself, he would do better not to sign the

Peace Treaty at all. The circumstances in which the measure

1 Wyman'e Army Debates, Session 1902, Vol. II, pp. 633, 1146.
* Titherington, op. cil. pp. 326-7.

x I KISONERS OF WAR 39

contemplated by Professor Holland would be justified appear
very unlik.-ly to arise in a war between modern >i.ilied

Professor Holland's third exception is also mentioned by the Prime*

mm General Staff jurist, 1 and has the

Hague delegates of 1899, as expressed in the Protocol of the

Conference. An add.n n lo A, was proposed, stating

n prisoner of war could not be detained, nor could his

i be deferred, on account of any sentence pronounced

or any event which occurred since his capture, except for crimea

under common law. The addition was suppressed

unanimously, on the ground that disciplin* must be maintained

and. surrounded with adequate sanctions up to the very last day

of captivity.* A '-isv in which repatriation may be

deferred is where a prisoner is awaiting trial fur an offence

against the laws of war. 3 Article 6 of the Peace Treaty which

closed the last Anglo- Boer war ran as follows :

No proceeding*, civil or criminal, will bo taken against any of the
itors surrendering or so returning [.., to South Africa from
captivity] for any acts in connection with the prosecution of the war.
The beni'fU . .f tins clause will not extend to certain acts contrary to
the usages of war which have been notified by the Commander-
in I'hief to the Boer Generals and which nlmll be tried by Court
Martial immediately after the clone of hostilities, 4

1 *rMp6nMeA tst laatOrtip, p. IT

* Hague. I B.R p. 145.

' ATriepfrrtmcA im LamtUriege, P- 17.

ryMm't^rmy Motet, Sestkm 1902, Vol. II, p. 459. The wortb tried
by court -martial " should evidently read " tried by a military court under
martial law," for only British wldiera or other persons subject to the British
Army Ant could be tried by court-martial. A Boer officer was tried under
tht. clause by a JWitary Gmrt at Heidelberg on 10th June, 1908, for misuse
of the white fag, and sentenced to death ( *>' Army Moist, /.<..
p. 1061).

CHAPTER XI

MILITARY AUTHORITY OVER THE TERRITORY OF TIIK imsTILK

STATE.

(1) Military occupation; war rights of the Occupant and of the

Inhabitants.

Conventional Law of War : Hague Rigleinent. Articles XLII to

XLVIII.

ARTICLE XLII.

Territory is considered occupied when it is actually placed
under the authority of the hostile army.

The occupation extends only to the territory where such
authority has been established and can be exercised.

ARTICLE XLIII.

The authority of the legitimate power having in fact
passed into the hands of the occupant, the latter shall take
all the measures in his power to restore and ensure as far as
possible public order and safety, while respecting, unless
absolutely prevented, the laws in force in the country.

ARTICLE XLIV.

A belligerent is forbidden to force the inhabitants of terri-
tory occupied by him to furnish information about the army
of the other belligerent, or about its means of defence. [This
article has not been accepted (ratified) by Germany, Austria,
Japan, Montenegro, and Russia.]

ARTICLE XLV.

It is forbidden to compel the inhabitants of occupied terri-
tory to swear allegiance to the hostile Power.

ARTICLE XLVI.

Family honour and rights, the lives of persons, and private
property, as well as religious convictions and practice, must
be respected.

Private property cannot be confiscated.

x. MILITARY AUTHORITY 321

ARTICLE XLVII.
Pillage is formally forbidden.

ARTICLE XLVIII.

If, in the territory occupied, the occupant ooUeots the
taxes, dues, and tolls imposed for the benefit of the State, he
shall do so, as far as is possible, in accordance with the rules
of assessment and inflM^MH^E in force, and ffhfill in conse-
quence be bound to defray the expenses of the administra-
tion of the occupied territory to the MOM extent as the
legitimate Government was so bound.

; law distinguishes between the invasion and the occupa-
n-'M of a hostile territory. If invo.-. respass which is

constantly accompanied by assault and battery, occupation is
trespass plui undisputed possession. Invasion ripens int-
occupation when the national troops have been completely
ousted from the invaded territory and the enemy has acquired
control over it " The state of invasion corresponds to the
period of resistance, of combats in which the national army
defends, foot by foot, the soil of its country. It ends and gives
place to occupation when the defending troops, in despair of
maintaining their lines, retreat and go off to seek fresh woods
and pastures new for fighting in." ! During invasion, neither
belligerent was complete master of the theatre of war, and if
the invader had certain rights as against the population (which
I have touched upon in an earlier chapter),* those rights did
not extend to a general government of the invaded territory and
to responsibility for the maintenance of law and order therein.
The right and responsibility of the national Government, whose
troops were still in part possession of the soil, remained un-
altered in these respects. But once the national troops have
bean displaced, a new set of conditions arise. In the normal
oate of occupation, the occupied country is cut off, as it were, by
a wall of steel and fire, from the nation to which it belongs.
Nature abhors a vacuum in political as well as in physical
science, and as anarchy would result if there were no Govern-
ment, war law recognises in the occupying belligerent a nght
of government which comes very near to the right of sovereignty.
At one period of history the military occupant did exercise the

' Fillet, op, f. p. m V ***, p. 150-8.

322 WAR RIGHTS ON LAND CHAP.

Occupa- full rights of sovereignty ; he forced the inhabitants to renounce
._I ne their fealty to their legal sovereign and to supply n runts for
the occupying array. " In 1756, the Prussians on breaking into
St to* Saxony immediately required the States, who were in session,
to supply 10,000 men, and two years afterwards 12,000 more
were demanded. In 1759 the French made levies in Germany.
... It was sometimes necessary to stipulate on the conclusion
of peace for the restitution of men taken in this manner." 1
But under modern usage and convention the sovereignty of
the original owner is regarded as intact. The occupant aoq u i n
full sovereignty only when the war ends, and the territ<>!
acquired by him either under the express terms of the treaty of
peace, or by virtue of the debellatio of the other belligerent, t.e.,
\vlu-n the latter is so completely beaten that he gives up the
struggle " throws up the sponge " and tacitly acquiesces in
The occu- the wresting from him of the occupied province. This refusal
ST th" ' f sovereignty to an occupant is a notable victory, won with
poeitionof difficulty and but yesterday, for the principles of legalism and
,, -iji, nationalism combined over the rule of might, and it is strongly
supported by considerations of humanity and of general con-
venience. Until the war ends, " the invader is not juridically
substituted for the legal government, for the government, that
is, of the invaded State. He is not sovereign of the country.
His powers are limited to the necessities of war. When these
are respected and satisfied, the invader must, for the rest, leave
in force the existing laws and usages. But, by reason of his
actual mastery, he assumes the obligations of maintaining onl.-r,
of allowing the social life of the inhabitants to continue un-
impeded, and of respecting their persons. On the other hand,
the occupant's duty to himself gives him the right to take all
measures requisite for his security, to suppress any resistance
which might endanger the advantages he has won." 2 Thus the
occupant's rights are double-based, resting on the necessity for
providing some established government in a country which is
shut off from its ordinary fount of justice and spring of ad-
ministration, 8 and secondly, on the military interests of the

1 Hall, International Law, p. 464, noU. a Bonfila, op. cit. sec. 1159.

3 It may indeed happen that the occupation extends to the capital of the
invaded State, M waa the case in the occupation of the Transvaal and the

xi MILITARY AUTHORITY 323

occupy ing belligcr* MI tumult I lo Mmunea tho reinii of govern-
ment because, otherwije, government there would be none, and
such a cowh t nig** would be an evil both for himself and

h. |M. pui.it ion.

In dealing with thr <|ii. >ti..n <.f U ll^, r.-nt { <mliftcaUons in
Chu| i 1 1 1 1 have shown that modern war law drawn a well*
defined lino of demarcation between the active military force*
an- 1 the general body of the population of an invaded country,
and I need sn\ 1m t Intl.- m..r.- --M this subject here. In return

.on-iiioloMtation, non-coiiibutanU owe the enemy the duty

<>f {uieeoenee. General Hal leek has compared their position to

risoners of war on parole. A still better parallel is, I

think, the case of persons who are left free under implied

recognisance* for their good behaviour. If they offend ih.-ir

rty may be estreated, fines may be inflicted upon them,

may be imprisoned, or, in extreme cases, put to death.
To purchase the occupant's protection they must accept his
rale and obey his legitimate commands. Their strength is to

ill. But the fact of occupation works no change in their
national character. Their allegiance to their national Govern*
ment is not impaired and they will ntill be liable to punish-
ment, under their national law, if they serve th- invader as
guides or assist him in arms. Still less can the invader claim
their allegiance as if they were citizens of his own State. He
must not force them into his ranks, nor may he even compel
them to give information concerning the national army and its
operations.

There is undeniably an art in the governing of an occupied An
"untry. Mr. Hilaira Belloc has defined discipline very
happily as a mixture of petty tyrannies and good fellowship in
equal doses, and an older writer said its object was to make
-..Idlers more afraid of their own officers than of the enemy.
And the secret of successful occupation is really the disciplin-
ing of the conglomeration of more or less disaffected persons
v- i i. . make up the population of an occupied province. One

Free State in 1900. Bat that doe. not affect UM petition of UM tender or of
the inhabitant-; the fonnert right i. th right of an occupant, not of .
orereign. and the Utter are till juridically the mhjocu of their former
Government, even if it be " r*TT>m!nihiti * Government.

32 4 WAR RIGHTS ON LAND CHAP.

finds Bismarck paraphrasing the words of Helvetius and
applying them to the French provinces which the fortune of
war left open to the German armies in 1870; it was essential,
he said, to inspire the inhabitants with " a greater terror <>t us
than they have of their own Government." l Perhaps the
Prussian methods were unnecessarily severe they were certumly
BMthoda f ar &n d away more ruthless than those used by any other
01 modern occupant but they were unquestionably successful,
severe but " Their military administration," wrote Dr. Russell to The
JjjJjL, Times, " is most rigorous, and its apparent severity prevents
effective, bloodshed and secures their long lines against attack. It is
' death ' to have arms concealed or retained in any house. It
is ' death ' to cut a telegraph wire, or to destroy anything used
for the service of the army." 2 I shall quote a Prussian
Proclamation presently from which it will be seen that the
councils of war could only condemn to death no lighter
sentence could be pronounced. If measures such as these
helped to bring one of the great nations of the world to her
knees in the space of six months, they were militarily justified ;
yet one may question their wisdom, politically and ethically, if
there was sown of them all over France a seed of hatred which
Germany may have to reckon with some day perhaps some
day when she can ill afford to have another foe and one on her
flank. One cannot tell what might have happened had the
war been prolonged beyond January, 1871 ; it is quite possible
that the " schooling " of the German authorities would have
defeated its own end in time and driven the people to the
courage of despair. There is a resiliency in the Latin nature
which is as unconquerable, in its way, as the dogged persistence
of Teutonism, and one can well imagine that, with time to
breathe and recover from the first stupefying blows of the
invasion, France might have proved to the Germans what
A discri- Spain proved to the French sixty years before a country one
minating could defeat and overrun but never subdue. Severity, of
methods course, is absolutely essential in administering a hostile
dilation countr y ^ ut ^ * 8 sound policy to conciliate as well, so long
is wise, as conciliation is not resorted to under circumstances which

1 Bosch, Bismarck, Vol. II, p. 249.

Hazier, Franco- Prussian War, Vol. II, p. 42.

xi MILITARY AUTHORITY 325

would make it appear to bo weakness or vacillation The
larger, heroic issues are seldom the actual spring! of action
in human affairs. A peasantry will usually be disposed to
acquiesce in a rale wtn< h it *evere, is just and not tyrannical,
and it will be ready to turn a deaf ear to the call of patriotism
can obtain its bread and butter and ordinary creature
comfort* ; else those nations which have, at some time or other,
breath of invasion and conquest that is, nearly all
the nations of Europe would to-day be a seething mass of
unrest A wise commander will always be glad to gain the good
will ..t th. httttilo population, or at least their passive acquies-
cence in hi* ml, When the Duko of Wellington invaded south-
western France in 1814, he sent back his Spanish allies to Spain
because they had pillaged the French inhabitant*. " What has
occurred in the last six years in the Peninsula," he said in hk
despatch, " should be an example to all military men on thw
point [as to the danger of setting the inhabitant* against the
invader], and should induce them to take especial care to
endeavour to conciliate the country which is the seat of war." *
The Russians failed in this respect in Korea in 1904; they
made no effort to gain the good will <>f the Koreans, who
suffered a good deal from the truculence and cruelty of some of
the Russian troops Buriaks, Calmucks, and Tartars. The
result was that the people turned to the Japanese their
former traditional enemies as to protectors and gave them
much valuable help in the northern advance*

In Chapter III I have shown that conventional war law
allows combatant privileges to the population of an unoccupied
country which rises uu* at the approach of the invader.
- silent as to risings in occupied countries, and though
certain nations would claim similar privileges for Ut<e+*n-
mosK in the latter case also, the silence of the RtgUmaU would
almost certainly be construed by the majority of the powers *
(despite the vtm proposed by Great Britain in 1899)' as
warranting the extremest punishment being inflicted on a*
population which attempt, unsuccessfully, to oust an enemy

/W Ptotform tf Imttntmtitmmt Lor, p. 490.

326 WAR RIGHTS ON LAND CHAP.

occupant. The nations which claim the widest liberty for
national defence would hardly allow that any chance individual
has the right to rise in arms against the invaders, whose
authority he had accepted in the first instance, as soon as it
pleases or suits him to do so : and most nations would refuse
belligerent rights even to a "massed rising" in an occupied
territory.

The It is this difficulty about recognising the belligerent status

Jl^opa. of civil populations which rise in arms, that makes it so
' '"" immensely important that the nature of occupation should be
<) fined very precisely. What does " occupation " mean ? The
answers have been many and various none of them altogether
satisfactory and a few having a family resemblance to Captain
Jack Bunsby's replies to Captain Cuttle they might mean any-
thing under the sun. The Brussels Conference devoted days to
discussing the matter. The delegates were divided into two
camps on this question, as on the question of belligerent quali-
fication ; the view of each of the parties is indicated in the
following extract from the rteumt of the discussion, as given in
the Blue Book :

The The German view is as follows : Occupation is not altogether of

Brussels the same character as a blockade, which is effective only when it is
practically carried out. It does not always manifest itself by visible
signs. If occupation is said to exist only where the military power
is visible, insurrections are provoked, and the inhabitants suffer in
consequence. A town left without troops must still be considered
occupied, and any rising would be severely punished. Generally
speaking the occupying power is established as soon as the
population is disarmed, or even when the country is traversed by
flying columns. It being impossible to occupy bodily each and
every point of a province, the expression " territory " must, as
regards occupation, be interpreted liberally.

It is claimed for this view that it is really to the benefit of the
invaded, as it checks temptations to insurrection which gives rise to
the infliction of severe punishment.

The other view, which received the support of nearly all the other
delegates, is to the following effect :

Greater power must not be accorded to the invader than he
actually possesses. Occupation is strictly analogous to blockade,
and can only be exercised where it is effective. The occupier must
always be in sufficient strength to repress an outbreak. He proves
his occupation by this act. An army establishes its occupation

x. MILITARY AUTHORITY 327

when it* petition and line* of communication are Moored by other
carp*. If a territory frees itself from the exercise of thu
uili Basses to be occupied. Occupation cannot bo pre-

tunpt

The vu w which commanded the majority of vote* was that
UOCUIKHI..M HUM haveaomo "substance" in it, that it cannot
be presumed or " fictitious " a paper occupation "end that
A )uli- a commander w not required to picket the whole country
and to garrison every haml t. m order to establish hi* occupa-
tion. ho must not proclaim an occupied a territory in which hi*
troops have not, and could not, set foot As defined in Article
\ 1 . 1 1, two distinct ideas underlie the j . leaning of oocu-

ii : (a) the invader must have established his author
and (b) he must be in a position to enforce it One sees
the latter idea in operation in the refusal of the rights of an
occupant to an invader whose possession is disputed; the
former, in the refusal of such rights to one who claims them,
onjirst entering a hostile province, in virtue of a proclamation

<>usly issued there by his agents. The two ideas are com-
bined to limit the rights of a belligerent in respect to a ho*-
province through which ho has swept hurriedly on his way to
a more distant jn \inv, but in which he ha> n -it lu-r established
any kind of military government nor left any force on the
spot or within roach to maintain his power. The Germans Th

i-preted occupation very liberally in 1870-1. Mr. Suther-
land Edwards passed through huge areas of theoretically occu-

count ry, from St. Germain to Louviers, from Rouen to

Ppe, from Dieppe to Neufchatel, without seeing a Prussian

soldier. 1 Th-- whole principle of the Germans' occupation was

really " bluff" ; they traded on th. tad that " an army enjoying

the prestige conferred by a long and all but uninterrupted series

tones, may proclaim its dominion over an extent of country
out of all proportion to what it could really hold in far-
determined resistance." * Their occupying force was composed
largely of " men in buckram." The objection to such a system
of occupation is that the inhabitants are tempted to try to
throw off the yoke of the foreign master, who must employ

1 Bnuwb B.& p. 160.

* Tk* Otrmnm* in /Vv*e, p. 964. ' Ibid. p. L

328 WAR RIGHTS ON LAND CHAP.

drastically severe methods of reprisals to substantiate the
authority which he claims. It is to be hoped that war has seen
the last of occupations of this kind. It is condemned not only
by equity and war law (as expressed in Article XLII) but by
the expert opinion of all the civilised nations. " The princi]>l< ,
says Hall, " that occupation, in order to confer rights, must be
effective, when once stated, is too plainly in accordance \\itl
common sense, and too strictly follows the law already
established in the analogous case of blockade, to remain un-
fruitful." l But it would be unwise to interpret occupation too
Occupa- stringently as against the rights of the occupant. There is
analogous occup*** 011 8 l n g M fc ^ e occupant does actually exercise
authority, to the exclusion of the legal government, in the area
in question ; and this he may do by means of flying columns
quite as well as by maintaining garrisons. He must police the
country and have it firmly under control. To establish an
effective blockade there need not be a line of cruisers drawn
across the mouth of a harbour, but there must be some force
within striking distance, so as to make it difficult for any vessel
to " run the blockade " and gain entrance ; and the same
principle governs occupation. The whole population need not
necessarily have been disarmed, nor is it essential that the
occupation shall have been made known by proclamations
(though it is obviously desirable that the inhabitants should be
notified in this or some other way of their liabili ties). " The
presence of an invading army in a district is, of itself, without
any special warning to the inhabitants, a sufficient proclama-
tion that the martial law of that army is in force in that
district." 2 " If the invading army," says Professor Fillet, " has
secured a success sufficient to oblige the enemy to retire, all the
territory which the latter leaves free is susceptible of occupation
and it is considered as occupied as soon as the invader, by some
positive act, has manifested his intention of exercinn^ his
authority there." 3 Occupation is simply a state of fact (as the
French Official Manuel says, p. 93) and needs no formal
announcement to give it legal existence. If the occupying

1 International Law, p. 483.

Un<l, Official Law* and Cuntonu of War, p. 6.
Fillet, op. cil. p. 240.

xi MILITARY AUTHORITY 329

belligerent is displaced by the return of the national forces, or
if he retires definitely, of hi* own accord, the occupation ceases,
and in such a case, as General de Voigto-RhoU pointed out at
Brussels, 1 the population cannot be subjected to penalties if
they rise ; the country is not M occupied" But if they rise while
the occupation lasts, or even while the national troops are trying
to displace the occupying forces, they do so at their pt-nl. They
have not the righto of oombatanto under the Conventions relating
to war.

The Government of an occupying army is essentially pro- OOMS**
nal. So long as the war continues, occupation cannot be 4*1^
regarded as conquest It may happen that a belligerent has Pg
occupied a territory which he intends to keep, by right of it tow*
conquest, after the war has closed, and that the course of the ^{j^S,
hostilities shows that he will, with all human certainty, be in a i*om.
position to wring the cession from his adversary. It was so in S^ u>
the case of Alsace-Lorraine in 1870-1 and of the South African
Republic in 1899-1902 ; and in the case of the
ti ..II of Bulgaria in 1877-8, the invader acted upon the assump-
tion that the country would never be restored to Turkey, under
the old conditions. 1 In such cases the occupant " still estab-
lishes an administration which will exercise various righto of
sovereignty in the name of the conqueror. . . . But his position
is based, in this case also, solely on the fact of possession ; it is
bounded, as M. Geficken says, within the limits of the power
which he has to exclude all action by others as regards the
object of his possession. However intense may be the desire
to retain the occupied territory, with whatever certainty the
occupant may count on forcing his vanquished enemy to agree
to the cession by a treaty of peace, he has, up to the conclusion
of peace or the annihilation t his adversary, no righto other
than those which follow from his possession." * The rule thus
stated by the French and German jurists is founded on utility
and justice. " While there is life there is hope," and so long as
a struggle is maintained, however hopeless it may appear, fate

> BnuMb B.B. p. 238.

* DeUftrUiM, a/\uxJJaCferr, p.279.

<*. MO. UH,UMUlUrprttMiaf qtoUdby tfcfe jari* from
Loeoing, L'AtlmmUmtim d* fAlmc+Lorrmimt ptnimnt fa GMTO * 1870-1,

330 WAR RIGHTS ON LAND CHAP.

and fortune may reverse the balance and displace the occupation.
And allegiance to a sovereign is a weighty obligation, of in
reaching consequences, which requires some national expression
of concurrence or acquiescence an express agreement or a
tacit but complete renunciation of the struggle to bring it
into being. In 1870 Alsace and Lorraine were at once placed
<lr finitely under a German administration. 1 Germany meant
to keep them, but she made no pretension to absolute sovereignty
over them until France ceded the two great Rhine provinces.

Alsace She sought to win over the hearts of the people and reminded

Lorraine them of a day when their forefathers were Germans of the

M<>t Germans :

.-is'", ,, In Alsace over the Rhine

( i u< T-I There lives a brother of mine ;

until end T^. i_

O f war It grieves my heart to say

He hath forgot the day
We were one land and line.

But she allowed the people to vote for the French National

Assembly in 1871. " Although Germany had the intention of

annexing these provinces, although it was furthermore certain

at the time when the elections took place that nothing could

prevent the realisation of this intention, the inhabitants were

nevertheless permitted to send their representatives for the last

time to a French Assembly. The German authorities took it

upon themselves simply to forbid public meetings a measure

Irregular quite justified by the circumstances." 2 With the correct

of X | 1UrC attitude of the Germans on this matter the action of the Boer

Boers in] occu pants of Cape Colony in 1899, and of the British occupants

of the Orange Free State in 1900, compares very disadvantage-

ously. The Proclamation issued by President Steyn on

October 14, 1899, and amplified by proclamations from Wessels

and other Free State Commandants, practically annexed British

territory in Cape Colony, and " wavering loyalists were impelled

to take up arms by being told that to do so was their obligation

and the as Transvaal or Free State burghers." 8 On the 24th May,

British in joxx), the Free State was formally annexed. On the 1st June,

a Proclamation was issued which warned the burghers that

1 Edward*, Qtrman* in France, p. 45.

9 Fillet, op. dt. p. 267. * Times History, Vol. II, p. 273.

x. MILITARY AUTHOR1 331

" inasmuch as the Orange River Colony, formerly known as the
Orange Free State, is now Briiwh tern nil inhabitants

t li.-r.-of. who, after fourteen days from the date of this Proclama-

may be found in arm* against Her Majesty within the
said Colony, will be liable to be dealt with a* rebels and to
in person and property acconi

H a matter of history that the war continued for jutt two
yean after the date of the issue of this Proclamation and that
during those two years the H roes suffered considerable

reverses in the Free State as well as in the Transvaal There
was no dMUatio on Int Juno, 1900; very far from it And the
Free State burghers could in no circumstances be considered
as other than the forces of an independent Sovereign State ; no
claim* to sure rail the Free State was ever advanced by

Great Britain. The fact is, as General den Beer Port u gaol
it the Rev*e dt* Deux Monde*, that the position
taken up in the Proclamation of 1st June, 1900, was hopelessly
bad in law, and that the annexation was not worth the paper it
was written on.* Not only foreign jurists but British states-
men like Sir William Harcourt and Mr. James Bryce names
of great weight in International Law and Constitutional

>ry -condemned the Proclamation. Mr. Bryoe referred to
it m the House of Commons as

A monatrouA Proclamation, a Proclamation absolutely opposed to
the flrat principle** of International Law, a Proclamation baaed upon
a paper annexation made seven days before, which purported to
treat the inhabitant* of the two Republics 3 at rebels rebels,
forsooth, on the bans of this paper annexation. 4

Indeed one has to go back to a bad precedent of the Secession
War to find a similar claim on the part of a commander to the
rights of sovereignty in an occupied country. When Pope took
command of the M Army of Virginia " (which was merged, after
the Second MsnssssB, in the more famous "Army of the
Potomac ") he issued some extraordinary general order* which

JbnM dm Dnx Jfoa**, let November, 1901, p. 38 (T.

Tata vat a mistake of Mr. Bryc*V I think : the Traamal WM not
annexed until let September, 1900; bat hi. word, rtand, of

the Free State,

M-ymW Army Xfcfafat, taion 1902, VoL I, p. 190.

332 WAR RIGHTS ON LAND CHAP.

made even the partial Yankees laugh at his " 'Ercles vein/' and
among these orders was the notorious

Pope'. ' General Order No. 1 1.

** ** Arm y of

, Ir'i! , Washington, July 26, 1 862.

No. 11. Commanders of army corps, divisions, brigades, and detached
commands will proceed immediately to arrest all disloyal male
citizens within their lines or within their reach in rear of their
respective stations.

Such as are willing to take the oath of allegiance to the U.S.,
and will furnish sufficient security for its observation, shall be
permitted to remain at their homes and pursue in good faith their
accustomed avocations. Those who refuse shall be conducted south
beyond the extreme pickets of this army, and be notified that if
found again anywhere within our lines, or at any point in rear,
they will be considered spies, and subjected to the extreme rigour of
military law.

If any person, having taken the oath of allegiance as above
specified, be found to have violated it, he shall be shot, and his
property seized and applied to the public use.

All communication with any person whatever living within the
lines of the enemy is positively prohibited, except through the
military authorities and in the manner specified by military law ;
and any person concerned in writing or in carrying letters or
messages in any other way will be considered and treated as a spy
within the lines of the U.S. Army.

By command of Maj. Gen. Pope.
Geo. D. Ruggles,
Colonel, A. A. G., and Chief of Staff. 1

There is here as clear an attempt, as in the case of the British
Proclamation of 1st June, 1900, to twist occupation into legal
dominion, contrary to the laws and usages of war ; the annexa-
tion in the later case being an obscuring factor corresponding
to the constitutional right (not advanced at other times) of the
Union Government in the earlier case. With the last paragraph
of the order no great fault can be found ; but the principle laid
down in the first three paragraphs is one which every writer
who has touched on the incident has condemned, 2 and
which the best military opinion, both Union and Seces-
sionist, characterised at the time as needless cruelty. One of

1 Longstreet, From Mantuutu to AppomaUox, p. 154.

1 See, for instance, Wood and Edmunds, History of the Woo- in the United
State*, p. 96, quoting from Ropes, Army under Pope.

xi MILITARY AUTHORITY 333

MoClellan's letters allude* in the stiuogest terms of denuncU- T*^+"

ufiunous orders " of Mr. John Pope," ss he calls ~~
his 1. nt'ral. 1 Lee denounced the order as one authur-

ising "atrocities*' against defenceless citisens, and both he and
Longstreet display a very bitter spirit against Pope in their
letters and writings.* But events moved so rapidly that the
Washington authorities had no occasion to consider whether
they should approve of his action or not " This new general,"
Stonewall Jackson was told, * 4 claims your attention." " And,
please God, he shall have it," said Jackson. He did ; and a
Jew weeks after the Proclamation was issued Jackson had slipped
away from Clark's Mountain, passed through Thoroughfare Gap,

i'ope's communications at Msnsssss Junction, called up Lee
and Longstreet to his aid, and driven the braggart Pope,
crushed and humbled, from the field of the Second Msnsssss,
to cower under the Washington defences. The territory which
Pope had claimed to govern as a sovereign ruler was again in
Confederate hands, and Pope and his policy passed, most con-
spicuously unwept, out of history. His fall came with such
dramatic suddenness that one likes to see in it a u judgment "
for his tyrannous Proclamation ; and this may not be such a
fanciful conceit after all, for the same qualities that make a
commander unsound in his strategy will usually make him
unsound in his International Law too. The great defeat of the
Second Mnnnssnas may quite well have been the punishment
of bad war law not less than of bad generalship.

the inhabitants of an occupied territory do not owe War
allegiance to the occupying belligerent, they do owe him the
duty of quiescence and of abstention from every action which

lit endanger his safety or success. They are subject to his
martial law regulations, and they may be judged guilty of
44 war treason " under certain circumstances. " War troenoii "

egsverrath) is distinguished from rebellion (which is the

JftGhflbrt Own Story, pp. 46S-4.

Captain R. K. Lee't e*, p. 77 ; White's Let, p. 171; Loogtreet, ope*,
pp. 155-6. Lee wrote to Halleek, in relation to Pope's order, in rach aa
nnunoallj (for LM) unguarded way that HaUeok replied-" A- theee letter*
are couched in hngnafe exceedingly iiaiilllsf to the Govermanat of the
United Statea. I moat repootfally decline to receive them. They are
returned herewith." (Draper, op. r*. Voi II, p. 4tt)

334 WAR RIGHTS ON LAND CHAP.

actual taking up of arms), and is thus defined in the Qerni.ni
Manual :

The act of damaging or imperilling the enemy's power by deceit,
or by the transmission of messages to the national army on the
subject of the position, movements, plans, etc., of the occupant,
irrespectively of whether the means by which the sender has come
into possession of the information be legitimate or illegitimate (e.g.,
by espionage). 1

The French jurist, Professor Bonfils, points out that it is
quite immaterial what the motives of the war-traitor are
whether patriotic and noble or base and mercenary and how
he has come by the information he conveys ; for these things
do not affect the danger to the invading army. So far as
touches the latter, it is an act of perfidy when a person who has
been respected as a non-combatant abuses his position to render
secret aid to his national forces. 2

The offence of war treason is recognised by the French
Official Manuel d, V Usage des Officiers (pp. 35-6) and by the
American Instructions (Arts. 90-92). Some jurists have
quarrelled with the term and the principle on the ground that,
though the inhabitant owes a duty of obedience to the occupant,
" this duty is in no way accompanied by the feeling of affection
and brotherhood, the violation of which gives the crime of
treason its infamous character " ; 8 or that " the duty owed in
return for the maintenance of order will not extend so far " as
to justify a breach of it being considered morally blamable or
treasonable. 4 Such objections appear to me to be beside the
point. In an occupied country a certain law runs, and that
law receives its sanction from the occupying belligerent. He
may keep the former Government's laws in force, but still they
are, during occupation, the laws of the new ruler, who is alone
able to enforce them, and who might abrogate them if he chose.
We have got a long distance to-day from the stage when
treason implied infidelity to a personal sovereign, as it did when
feudalism was a force in social economics and long afterwards.
To-day treason means a conspiracy against the established

1 Kriegtbrauch im Landkriege, p. 50.

BonfiU, op. tit. sec. 1164. Fillet, op. cit. p. 208.

Weitlake, International Law, Part II, p. 90.

xi MILITARY AUTHORITY 335

in a State. Now the established authority in an
occupied territory is the ds fado ml- r the occupant If one **

|.lmino he is the " war ruler," and as it is M treason "
to conspire against the ordinar)- is " war treason " to

conspire against the M war ruler." No jurist would deny the
occupant's right to deal summarily with an in<tivi.lual who,
having been treated as a non-combatant, abased his immunity
by sniping the enemy's foragers or stragglers ; and the damage
done by an individual sniper would probably be infinitely less
than that done by sending messages to the national army.
r act is clearly one which the occupant must, for his
security's sake, punish ri^ not because either is morally

wrong, but because it is dangerous. But, any way, if one com-
pares the two acts from the view-point of morality, less moral
blame would appear to attach to the man who takes rifle in
hand than to him who pretends to accept the occupant's
authority while all the time he is sending secret messages to
-ther commander. Although no mention of war treason
is made in the British Official Manual, as it is in the Fren< h,
German, and American Manuals, the offence is referred to in
the Circular Memorandum issued by Lord Kitchener on 2nd
May, 1900. relative to martial law in the Orange Free State.
The reference is as follows :

In cases of ftrsodbry by persons resident in the country, who,
having signed a declaration of neutrality, either hold communication
with the enemy, assist him with supplies and information, or
wilfully infringe the laws or customs of war, prompt trial should
take place on the spot where the offence was committed and the
witnesses are available. 1

As I shall show later on, the signing of a declaration of
neutrality does not increase the obligations laid upon the
inhabitants of an occupied territory ; those obligations are the
same whether they sign or not Nothing but a voluntary
oath of allegiance can change their status while the war con-
tinues. One has, therefore, in the above quotation, an official
recognition on the part of the British authorities of the
of war treason.

1 Paper, re/o/iM to Martial Law IN So/A .i/rica (Od. 961), p. 291.

336 WAR RIGHTS ON LAND CHAP.

The obli- I have spoken, in connection with Article XXIII, last para-
SfilJ* ' graph, of the services which the inhabitants of an invaded
habUanU territory can be called upon to render to the invader, 1 and an
pied terri- occupant's right is as extensive in this respect as an invader's.
Reams upon reams have been written as to the obligations of
the population of an occupied province. I prefer to give the
ipsa verba of the orders and proclamations which have been
actually issued by occupying belligerents, than to attempt to
draw up any general code of rules and regulations by collat m-
and selecting from the historical documents bearing on the
matter. In a case of this kind I believe most people find first-
hand evidence both more interesting and more easy to assimilate
and remember than a synopsis or excerpta compiled therefrom,
however skilfully done.

<;.nnm Soon after occupying French territory in 1870, the Crown
ProcUma- p^gg o f Prussia issued the following Proclamation.

1. Military jurisdiction is hereby established. It will be applied,
throughout the extent of French territory occupied by the German
troops, to every case of an attempt to endanger the security of these
troops, to cause them damage or to assist the enemy. The
military jurisdiction will be considered in force and proclaimed for
the whole area of a " canton " immediately a proclamation has been
posted up in one of the localities of the same.

2. All persons not forming part of the French Army and not
proving their quality as soldiers by outward marks, and who

(a) serve the enemy as spies ;

(6) mislead the German troops when charged with serving them
as guides;

(d) destroy bridges or canals, damage telegraph lines or railways,
render roads impassable, set fire to munitions, provisions or
quarters ;

(e) take up arms against the German troops, will be punished
with death.

In each case, the responsible officer will institute a council of
war, with authority to try the matter and give judgment. The
councils of war cannot condemn to any other punishment than the
punishment of death. Their sentences will be executed immedi-
ately.

3. The communes to which the culprits belong, as well as those

1 Vidt upra, pp. 150-2.

xi MILITARY AUTHORITY 337

whose territory has been the soeoe of the oJfenoa, will be flned in
each caa in a sum equal to the annual amount of their taxes. 1

Proclamation most be read the proclamation OnUm
issued upon the occupation of certain French towns. Whan {Stiff
Corny was occupied on 13th August, 1870, it was ordered pjtfae of
that

VH arms should be given up at the Maine within two hours,
my inhabitants concealing the same should be treat*-! " with
all the severity of military law."

So groups to be formed in streets.
3. Shutters to be kept open, blinds drawn up.

Inhabitant* to supply troops marching through the town with
war

6. No impediment to be oflhmd to the advance of the troops.
" Any one offering impediments of any kind will be at once taken
aadsbcV"

When Strassburg was occupied, the Prussian Commandant nd at
issued the fnl lowing onl

The state of siege still continues. Crimes and offences will be
punished by martial law. All weapons are immediately to be given
up. All newspapers and publications are forbidden till further
orders. Public houses to be closed at 9 p.m., after that hour every

iron must carry a lantern. The municipal authorities have to
provide quarters, without food, for all good men.*

t i it will be seen all newspapers were suppressed for the On
time at least In the Secession War one finds the Federal in UM
occupants, not indeed suppressing the newspapers altogether as
at Strassburg, but restricting the right of publication to certain
approved papers and laying heavy responsibilities on the editor
and proprietors for any " libellous publication, mischievous
mat news, exaggerated statement, or any com-

ments whatever upon the acts of the constituted authorities
even if copied from other papers." 4 To the good American the
freedom of the Press is an article of belief; he is quite ready/
to attribute to newspaper editors a divine right which his fore-
fathers found intolerable in kings. The action of the Federal

! now, Atmeo./*nMMm War, Vol. I, p. S46 ; Hall, /fenta/MMl
pp. 47*-*, *.
Hosier. <y. c*. VoL I, p. 350. An identical proclamation WM

Ibewhere .?. at Pool a-MouMon, aw KdwanU, op </. p. 74.
Holier, op. eft. VoL II. p. 60.
Sherman, M csto*r, \ : II. r

338 WAR RIGHTS ON LAND CHAP.

authorities is therefore very strong -v nl< uce (were any needed)
of the existence of a war right which warrants the control of
the Press in an occupied territory.
ProcUma- General von Ku miner, provisional German Commandant of
Metz, issued the following Proclamation when he nit.nd ih.

tion of city, 30th October 1870 :

If I encounter disobedience or resistance, I shall act with all
severity and according to the laws of war. Whoever shall pla
danger the German troops, or shall cause prejudice by perfidy, will
be brought before a council of war ; whoever shall act as a spy to
the French troops, or shall lodge or give them assistance ; whoever
shows the road to the French soldiers voluntarily ; whoever shall
kill or wound the German troops or the persons belonging to their
Miite; whoever shall destroy the canals, railways, or telegraph
wires ; whoever shall render the roads impracticable ; whoever shall
burn munitions and provisions of war ; and, lastly, whoever shall
take up arms against the German troops, will be punished by death.
It is also declared that (1) all houses in which or from out of which
anyone commits acts of hostilities towards the German troops will
be used as barracks ; (2) no more than ten persons will be allowed
to assemble in the streets or public places ; (3) the inhabitants
must deliver up all arms by 4 o'clock on Monday, the 31st of
October, at the Palais, rue de la Princerie ; (4) all windows are to
be lighted up during the night in case of alarm. 1

Beyer's To anything approaching popular resistance the Germans
lotto showed themselves especially pitiless. General Beyer's address
people of to the Alsatians represents the attitude adopted by the
occupying commanders on this question ; he said

The armed fight with the armed in honest, open conflict. But
we will spare the unarmed civilians, the inhabitants of the towns
and villages. Maintaining severe discipline, we expect nay, I
demand it most rigorously that the inhabitants of this country
shall refrain from cover or secret hostility. 2

Proclama- And when St. Quentin was occupied in October, 1870, the
following notice was placarded on the walls :

Very Important Notice. The German military authority
informs the public that should a shot be fired on a single German
soldier, six inhabitants will be shot. 8

The town of Ablis was burnt to the ground because the towns-

1 Hosier, Franco- Prusnan War, Vol. II, p. 124.

1 Op cit. VoL I, p. 346. 3 Casaell's History, Vol. I, p. 905.

x. Mil II AKY AUTHORITY 339

people arose and attacked the occupying German garrison in the
same month. 1 But one could givo hundreds of instances of
t he Germans laid an unduly heavy hand on the
towns and district* in which th t>> unorganised civil

resistance, they were within their war rights in taking up the
position that such resistance merited reprisals sufficiently severe
tobedetero !

The inhabitants of Bulgaria and other Turkish provinces
were notified of their duties toward the occupying Russian
forces in the following Proclamation, issued by the Russian
i Hinder- in-Chief on 1st Jn 7:

The inhabitant* of the provinces occupied by the Russian troops
and all individuals not belonging to the army, will be judged fur
the crimes or delicts which they commit by the ordinary criminal
.ml of the district, except as regards the crimes enumerated
below, for which they will be tried by councils of war and punished
at prescribed in the Russian laws applicable in war, viz. :

i Rebellion, inaubordination, conspiracies against the Russian
Commander- in Chief or against the authorities instituted by bin

a ion of the country.

> Espionage, %.<*., the communication to the enemy of inform-
. prejudicial to the Russian army.

(3) The destruction or damaging of wells, water courses,
telegraphs, railways, bridges, canals, and other means of com-

.:,;!,!. ktiflBJ

burning or destruction in other ways of warlike mat/rid
or articles constituting the means of defence or of subsistence of the

ps.

(5) Murder, robbery, brigandage, pillage, arson, conversion of

goods, and other crimes in all oases in which the gravity of the

instances makes it necessary to have recourse to the military

iU !..r th. S.H-UI ity of the army and the public order.
Under these conditions, any matter may be removed from the
cognisance of the ordinary criminal tribunals and submitted to a
council of war, by order of the Commander- in-Chief or of
specially authorised by him

Moreover, the councils of war have cognisance of all crimes

d by the inhabitant* of occupied provinces in concert ith
military persons or individuals belonging to the army; and the
same applies to women who have been proved to be accomplices in
criminal acts committed by persons liable to be tried by councils of

Gsssslft Wrfory. VoL I. p. Ml.

D0Maruos v PsrfLOwm,DC>iS&-l.

340 WAR RIGHTS ON LAND CHAP.

Th. following paragraph appears in all lYtx-laniat i> MS issued 1>\
the Boer commandants in the territory of Natal or Cape Colony
Haul and which they occupied in the winter of 1899-1900 :

T I | M

Colony.

All persons who do not constitute a portion of the British army
and who

(a) serve the enemy as spies;

(6) cause the burghers and men of the South African llrpulilii'
and Orange Free State to lose their way when acting as guides ;

(d) destroy bridges or damage telegraph lines, heliographic
apparatus, or railways, or in any way cause damage to parts or
portions of the same, whereby the Republics may be hindered, or
their people or property damaged, or even they who in any way
endeavour to repair or make good the damage done by the
Republican forces to property or apparatus, or who set fire to the
ammunition, war supplies, quarters or camps of the Republican
forces, or in any way damage them ;

(e) take up arms against the forces of one of the said Republics,
shall at the discretion of a Council of War be punished with

death or imprisonment not exceeding fifteen years. 1

British A very full and instructive body of martial law regulations
La^regu- * r ^ a P e Colony was drawn up by the British Military authori-
lations in ties in 1901 and supplemented in 1902. The proclaimed
\Var. districts in the Colony in which these regulations were enforced
were, for all practical purposes, hostile and usually bitterly
hostile territory, and the British troops were really in the posi-
tion of an occupying enemy force. The first circular issued in
the Colony on the subject of martial law was made applicable
to the Free State by an Army Order of 2nd May, 1900. 2 I
cannot find any Army Order which applied the later regula-
tions to the Boer Republics, but they, or regulations of a similar
kind, must have been in force in those countries, as will be seen
from the list of offences and punishments given in the Blue
Books relating to martial law. 8 The regulations I refer to
covered the following points :

1 Times History, Vol. II, pp. 273-6.
1 Papers relative to Martial Law (Cd. 981), p. 291.

* See Blue Books (already quoted several times) on Martial Law, Cd. 981
(1902), pp. 121 ff. and (Cd. 1423, 1903), pp. 77 ff.

xi MILITARY AUTHORITY 341

MABTIAL LAW RWULATIOVB. (Issued May, 1901, finally amended

May, 1003).

1. Amu, ammunition and explosives to be reported to District
Commandant end permit obtained for same. Persons knowing of
other pffoti* bring in possession of anna, etc*, were liable to
punUhment for not informing the military authorities.

:;,!)-. :ti, ,-.-i' mi few exceptions (*?., to market or
h), forbidden unless traveller could produce a pen
S. In districts in which enemy*! presence was reported, the names
of all householders and residents were to be entered on

h WM to be attentod by an agent of the Dist.
and posted conspicuously on each bouse or farmstead.

Traders' and hawkers' licenses impended ; commercial traveller*
nove only on a special perm

5. All parcel* in transit to be liable to examination ; contraband

carrying of private parcels in any way other than in Post office mail
bags, prohibited.

6. All letters, telegrams, etc., liable to be censored.

7. Meetings of more than 6 persons forbidden, except
(a) with a penu

religious services in churches ;

(<) meetings of Divisional Councils or Municipal Councils ;
(</) meetings of persons residing in one house.

8. Seditious language forbidden.

9. Spreading of alarmist reports forbidden.

10. Circulation of newspapers, pamphlet* or periodical!* likely to
promote sedition, disaffection or bad feeling prohibited ; and persons
found in possession of such papers to be punished.

11 O , ,- Urging for goods forbidden.

1 J. Persons guilty of following offences to be liable to death or
less punishment :

being actively in arms against His Majesty ;

directly inciting others to take up arms against it

i(3) actively aiding or sssitting the enemy ;
...mmitting any overt act by which the safety of
sty's Forces or subjects is endangered.
IS. No unauthorised person to wear uniform or any clothes
ambling uniform.
14. All signalling and exposing of coloured lights forbidden. 1

1 Two Boen were eeoUoced to 10 yean* penal ervitode bya military
(0 yean remitted by Confirming Officer) for "Oonspiriaf to

the enemy by signsl and being in poemrioa of
(J%srvrfaateJJfsvWjCtikOBVffl,it 16U)

342 WAR RIGHTS ON LAND CHAP.

15. Keepers of hotels and boarding-houses to be answerable for
conduct of residents.

16. Sale of intoxicating liquor restricted.

1 7. Kvory person t> remain in his or her house from 10 p.m. to
5.30 a.m. Lights to be out from 10.30 p.m. to 5.0 a.m., except
in cases of sickness or emergency (to be reported).

18. Regulations as to requisitioning laid down.

19. Military animals or stores not to be injured or removed.

'JO. All horses, mules, donkeys, oxen, vehicles and equipment to
be brought in to the Commandant on his demand.

No person to be in possession of a cycle or riding horse (or mare)
except with a permit.

J 1 . Obstructing or impeding officers or other persons carrying
out orders of Commandant prohibited.

_'_'. Sketching or photographing defence- works, or trespassing
thereon, forbidden.

Defacing of martial law notices forbidden.

24. Following acts are offences :

(1) disobeying an order given by an officer administering
martial law ;

(2) conduct, etc., to the prejudice of good order or the public
safety ;

(3) acts or conduct calculated to hamper the movements of
H.M.'s Forces.

In a later edition of the martial law regulations, the follow-
ing additions were made to the above list of offences :

25. Persons failing to report the presence of the enemy, or
giving the enemy information, money, food, etc., to be punished.

26. Save under a permit, importation into a proclaimed district,
or removal therefrom, of the following stores prohibited :

(a) Foodstuffs of any kind for men or animals.

(b) Tobacco in any form.

(d) Harness, saddlery and leather.

(e) Clothing for men and boys and woollen underclothing of
any kind.

(/) Boots and shoes and veldschoens.

(g) Horseshoes and nails, and implements for shoeing.

(h) Bolt-clippers and tools for cutting wire.

(/) Cycles and automobiles.

(k) Arms, ammunition, dynamite or other explosives.

(TO) Field-glasses and telescopes.

(The above are " prohibited goods," corresponding to " conditional
contraband " in sea war).

On farms or homesteads outside the military limits of defended

x. MILITARY AUTHORITY 343

towns or villages, foodstuffii to be allowed only in
quantities for one, two, or three weeks' supply, as the
(as the Commandant was afterwards called) might decide; and
persons having more than such quantities on hand to be punished.
- person to have in his possession any horse or mole without
a " protection certificate."

28. No compensation to be paid for any animals, supplies or
stores w). t he enemy's hands owing to failure of claimant

move them into safe keeping, nor for animals, etc., which the
try authorities were will..,- t.. purchase.

29. Animals, stores, etc., left behind by H.M.' troops or the
enemy to be brought into nearest defended town or village by person

on whose property they were

SO. No person to have a cycle or automobile without a p-

Persons in custody attempting or conspiring to escape to be
punished corporal punishment, not exceeding 25 lashes, might be
tattostd

32. False or fraudulent statements in any report or document,
or forging or tampering with passes, permits, etc., to be punished.

S3. Perjury to be punished.

It is interesting to note that there are records of women being Women
I finished for contravening certain of the above regulations. J^jJ^
Thus Mrs. Anna S. Low was sentenced on 2nd April, 1901, by a &Urtial
military court at Bloemfontein to 6 month-' imprisonment with
hard labour for "aiding and abetting the enemy"; and Miss
Peters was fined 75 on 6th May, 1901, for "giving information
to the enemy." 1 As the danger to the occupant is the same,
the sex of the culprit does not affect the liability to punish-

The right of an army, says Professor Ariga, to promulgate
martial law and to establish military tribunals applies not only
to an army operating in a hostile country, but also to one oper- Martui
ating in a neutral or an allied country which rin-u instances
made the theatre of war > reasons nn army

must he in a position to safeguard itself by having suitable aOisd
laws for that end in force ; secondly, he existing laws

are suffic I.! t ribunals may not wish, or may be unn

to apply r the protection !" the occupying troops,

was t . i-.n that Japan established and enforced mar

law in Manchuria (a province of a neutral country, China) and
in Korea (an allied country.) 1

1 Paper* rtfaJiw to Martial Law, CO. 961, p. *& Ariga, of*. C. p. ITS.

344 W AR RIGHTS ON LAND CHAP.

Nonni- No uniform code of martial law regulations was used by tin-
'^J^J Japanese armies. The Headquarter Staff of the army of
* wg- Manchuria considered it undesirable to inniiulute any penal
Mtdtnthe regulation 1 , fnr two reasons: one a political reason, because,
China being a neutral Power, it was thought that her suscep-
tibilities might be wounded by the promulgation of a rigorous
law (as martial law must be) affecting her subjects; the other a
legal reason that if there were a body of fixed regulations they
would have to be applied strictly and the punishment would
not always be proportionate to the offence. Professor Ariga, in
whose absence this ruling of the Headquarter Staff was given,
Profenor does not agree with it. He holds that a general universally
M! \f l applicable J&glement should have been drawn up, and that for
three cogent reasons :

(1) It is contrary to the principles of repressive legislation not
to make known the acts which are, or are not, punishable.

(2) The end of martial law is repression ; the threat of
punishment is more valuable than the punishment itself, and
therefore notification of the laws which apply is of great im-
portance.

(3) Unlike the ordinary penal law, martial law requires no fixed
and definitiveybrmula ; it uses general clauses to a much greater
extent.

The result of the ruling given by the Staff was that there
were a whole sheaf of martial law regulations in force. " Each
army, each garrison, each post commandant, each commission of
military administration had its own martial law and its own
special regulations thereunder." At Port Arthur, there were in
existence the martial law of the garrison af Liao-Tung, of the
naval station of Port Arthur, of the fortress of Port Arthur, and
of the commission of military administration ; it was conse-
quently a work of art for the gendarmes to decide which law was
to be applied in any case. There is little doubt, I think, that
Professor Ariga makes out a case for his view (which had the
support of all the International Law advisers in the field) as
against the view of the Headquarter Staff. 1

i: T i The following is an extract from the martial law regulations
varion* which were in force in the armies in Manchuria ami K>n a, and
in certain garrisons and military commissions. 2

1 Ariga, op. cit. pp. 379-381. * Ibid. pp. 381-5.

xi MILITARY AUTHORITY 345

All ih UWH and regulations relating to the punishment* focjjjjjy

acts detrimental to the JapaneM Arniy in Korea and Manchuria ^ y M

cannot be given bore. All that can be done is to indicate the

ipal acU for which punuhment can be awarded.

oppose our land and ea forces, military attthoritiei or
penooa attached to oar army or navy.

3. To be attached to the enemy and act hmtilely againat oar
army without being clothed in a regular uniform.
3. To act a* a spy, to conceal a spy, or assist hit ftV

To communicate to the enemy the movement* of oar land

ami M f H

0. To guide our army badly.
6. To spread false news.

To make a noise or utter outcries of a nature to disturb our
land and sea forces.

8. To publish placards detrimental to our army.

9. To disturb public order by meetings, assemblies, putli
n of newspapers, and reviews, posting up placards and other

ir means.

10. Tb aid or facilitate the movements of the enemy.

11. To guide the enemy.

I -'. To guide or assist knowingly the flight of the enemy.

1 3. To deliver up prisoners of war, hide them and assist their

M. To destroy, burn or steal military stores, military buildings
MI. h as <&p<to, barracks, arsenals, military stores, etc,

15. To destroy or spoil military stores, arms and other articles
n the field of battle by our army or the enemy.

16. To destroy or burn the various means of military com-
munication, such as telegraph wires, railways, bridges and high-
ways, canals, etc., and to cause inconvenience to the military

j" --tal -!'. !.

17. To destroy, steal, damage or change the position of signals,
.Uing posts, placards, etc., rendered necessary by military

operation!

18. To prejudice the needs of our army by rendering water
< {linkable, or by hiding vehicles, commodities, supplies and

19. To destroy or prevent the working of aqueducts, or to

ress the elect n- li-ht

JO. To coin or alter money, notes and Japanese military
asthma* and to make use of them whilst being aware of their
frainliil.nl < haractcr.

To oppose requisitions in genera), such as the lodgment or
hiring of coolies, or to fail to comply with any requisitions.

346 WAR RIGHTS ON LAND CHAP.

22. To prevent by trickery or threat any duty imposed on
individuals serving in our army.

23. To be in possession of anna and military stores without
authority.

_' I. To enter ports, batteries, or other prohibited places without
permission.

25. To infringe the prohibition against entering or remaining
in forbidden radii

_'6. To make trenches in the mountains and hills without
authority.

27. To inspect, sketch, photograph or make descriptions of views
on land or sea without authority.

28. To plunder articles belonging to the wounded or dead on the
field of battle.

29. To exhume or destroy dead bodies on the field of battle or
to steal articles found on them.

30. To put to death Japanese or allied soldiers.

31. To assassinate or steal with violence.

32. To provide opium, to procure the instruments for smoking it
and a favourable place to enable our soldiers, allies and other
persons attached to the army to make use of it.

33. To commit any other acts detrimental to the Japanese
Army.

34. To disobey orders given by our army.

35. Acts detrimental to our army of which mention is not
made above will be punished according to the military or naval
penal law, or according to the ordinary penal code of Japan.

An excellent method of acquainting the illiterate people of
tions in Manchuria with their obligations to the occupying Japanese

forces was adopted in the 1st (General Kuroki's) army. Pro-
clamations were placarded in which no sentence exceeded four
Chinese words and in which the inhabitants were warned, in
the simplest language, against refusing to fill requisitions,
against sending information to the Russians, against cutting
telegraphs, etc., etc. 1 The same plan was followed in the case
of the Proclamations forbidding the concealment of weapons
Japanese found on the field of battle. The Japanese authorities
for con devoted especial attention to controlling the possession of
Jj Uin S arms by the inhabitants, and therein they showed their
semonof practical wisdom, for the limitation of the right to keep
',"',!' u,'" 1 weapons is one of the arcana of the successful government of
habitant*, an occupied province. Had the British authorities seen that

1 Ariga, op. til. p. 443.

xi MILITARY AUTHOR 1 1 V 347

their orders as to the surrendering of arms were properly
carried out. the last South African War might have ended Jar
sooner than it did. The burghers surrendered - arms," but the
arms were largely of a kind which no self-respecting Boer

I go shooting rock-rabbiU with. The Mausers were often
tn.Mon away n owners purpose to go on

commando again ; and even when rifles of a serviceable nature
were really surrendered, they were sometimes "destroyed" by
the I'.ir :-ii in niieh a way that th.-y omiM be repaired and used
again. Do Wet says that he himself carried the 200th rifle

!i had been .-fetroom and recaptured when

-h lea. 1 In th. Russo-Japanese War, the inhabitant*
of Manchuria were strictly forbidden to possess arms excej
certain defined cases. Very large numbers of rifles were
abandoned by the Russians on the battle-fields and these were
at first secretly appropriated by the Manchurians. The con-
dition of the country gave them some justification for doing so.
Even in peace-time, the Chinese police were practically useless
for the purpose of keeping the Chunchuses and robbers in
check ; and the latter were still more completely masters of
the situation in the disorganised state of the country caused
by the war. It was essential that some of the inhabitants
should have weapons for the general protection of the
scattered homesteads and villages, and the Japanese generals
ton . \\hiN- :iK>"!us-ly forbidding the removal of rifles or
rifle-barrels tn-m the battle-fields and severely punishing
any who offended in this respect, issued weapons on loan to
the residents in the villages. The chief men of each village
were made responsible for the proper use of the arms loaned
and were charged with protecting the railways, telegraph*,
dqpdU, etc., in the locality. If they failed in their engage-
ment, the village was fined, or, in aggravated oases, burnt
i $

Breaches of martial law regulations and offences against Trttmmk
the laws of war are dealt with by military tribunals. In the

ish army such tribunals are called M military courts under tag"
martial law," to distinguish n " courts-martial ," which JJJJ 1

7W. War, p. 19*.
* Arigft, op. e*. pp. 413 U. 4*1

348 WAR RIGHTS ON LAND CHAP.

The are courts established, either in peace or war, to try persons
subject to the British Army Act. Under the procedure
followed in the South African War, any commanding officer
could convene a military court, or he could depute his power
to an officer under his command not below the rank of captain.
Tin- courts had unlimited power, and might, in addition to
the punishments authorised by the Army Act (death, im-
prisonment with or without hard labour, and penal servitude)
impose a fine on the defendant. Fines were, as a matter of
fact, inflicted in a very large number of cases; there are
records of Boers being fined 500 and even 1,000.* The
court consisted of three members at least, of whom one was
President, with a casting vote. Proceedings were held in open
court and all evidence and the defence were written in full.
Generally speaking, the procedure of field general courts-
martial was followed. 2 The verdict went by the majority, but
the concurrence of the whole court was required for a death
sentence. Sentences of death or penal servitude were con-
firmed by the commander-in-chief; other sentences by the
convening officer. As a matter of fact, all sentences of death
or penal servitude were reviewed by Sir Richard Solomon,
Attorney-General of the Cape, before being sent to the
commander-in-chief for confirmation. 8 Smaller breaches of
martial law regulations were not brought before military courts,
but were dealt with summarily by the officer administering
martial law (or some officer of at least captain's rank deputed by
him), or by the Civil Magistrate, who for this purpose acted on
behalf of the administrator and not qud Civil Magistrate. At
these summary trials no higher punishment could be inflicted
than 30 days' imprisonment or a fine of 10. 4

Tho The French military tribunals for the trial of hostile

French nationals are composed in the same way and follow the same
German procedure as the councils of war which try French soldiers
for military offences. 6 The German system is different ; the

1 Paper* relative to Martial Law (Cd. 981), pp. 141, 147-8.

* That is, a court convened during active service to try a British officer or
soldier, or other person subject to the Army Act.

' Wyman'* Army Debates, Session 1902, Vol. I, pp. 380-1.
4 For the above generally, see Cd. 981, pp. 82-4.

* Bonfils, op. cit. sec. 1173.

x. MILITARY \ITHOKI I V 349

i mil* fftUiblUhed un-l- r martial law "render justice as
founded on the essential lawn of justice," and are bound to
no special form or procedure. 1 They deal with every case on
its merits an excellent plan were it certain that every court
were enlighten*; iu<iioed, and calmly judicial Pre-

cedents and rules of procedure are unquestionably valuable
m keeping up the general standard of the administration

ustioe, if not to an ideal, at least to a respectable
level. The stereotyped penalty pronounced by the German

s m 1*70-1 death wu* in a great many cases not
inflicted. 1

The tribunals employed by the Japanese in the war with The
Russia are called by Professor Ariga "courts-martial." They "
were special war courts, composed of officers and military
rticials, and their procedure was very expeditious, as
compared with the slow and laborious procedure of the " councils
of war," which tried offences (spying, war treason, etc.) against
the laws of war. A minimum of three members composed the
bench and the verdict went by a majority. The accused was

i means to defend himself, but contrary to the rule in an
ordinary penal trial, his guilt was assumed in the absence of
proof nnocence. The death penalty was prescribed

nearly all the contraventions of martial law, but the court was
allowed to inflict a lighter penalty, or even to acquit the
accused at its discretion. "The end of martial law," says
Professor Ariga, " being intimidation rather than the punishing
of acts which are immoral or contrary to the public interest,
when this end is attained, it is unnecessary to punish every
infraction." 8

The principle of throwing the onus of proving his innocence Under
on the accused appears unjust and cruel, but it is a necessary JUJ^Jji
principle of martial law justice. The occupant's interest is to fv*H of
secure the maintenance of order and compliance with l
martial law regulations, and he cannot, under war conditions,
be expected to adhere scrupulously to the rule of abstract
justice which forbids the presumption of anyone's guilt and
which regards with horror the punishing of an innocent

1 ff rip6rtteA * LamdJtntg^ p. 65.
* Arigm, op. c*. p. 381. > 76* p.

350 WAR RIGHTS ON LAND CHAP.

Vicarious puni^him nt is the very soul of reprisal* and repr
are still, unfortunately, a living part of martial justice. In
campaign law, the great object is to punish someone, and 1\
preference, the guilty, for every offence committed ; but in no
case to leave an offence unpunished." l One may perhaps say
that it is from a blending of the principle of reprisals with the
principle of ordinary justice that the rule of presuming the
guilt of a person charged before a martial law tribunal has
resulted.

Confine*- The punishment of offences against the laws of war or tin
property HMurtial law regulations of an occupying belligerent usually
takes the form of imprisonment or capital punishment or tin.-.
t But in some modern wars confiscation of goods has been
resorted to, and some authors have questioned the legitimacy
of such a form of punishment. When the Germans occupied
Alsace-Lorraine they decreed that every inhabitant who 1 ft
Franco- the province to join the French army should be punished by
" the confiscation of his fortune, present and future, and a banish-
ment of ten years." 2 In the last Anglo- Boer War, four
Ajiglo- burghers of the Free State were sentenced to one year's
War; imprisonment with hard labour and confiscation of all their
lands, goods and property, for occupying premises on which
they knew arms to be concealed; and this sentence was
confirmed by the Commander-in-Chie 8 Again, two Boers
were sentenced to confiscation of real and personal property,
and to penal servitude for three years, for concealing arms and
violating the oath of neutrality ; in this case, the Commander-
in-Chief remitted the confiscation of real property. 4 There
were many other cases in which the military courts ordered tin-
confiscation of goods for breaches of martial law regulation-
but such sentences were not approved by the continuing
and in the officer. The question arose again in the Russo-Japanese War,
in <'"in>'-''ii"ii \\iili the OOOfimftiaD of th.-oods and hous.-s of

* r * some Chinese merchants of Dalny r and Mukden who were
proved to have been guilty of " war treason " but who fled before

1 Sutherland Edwards, The German* in France, p. 285.

* Hall, International Law, p. 477, note.

1 Paper* relative to Martial Law (Cd. 981), p. 194.

* Ibid. p. 196. Ibid. pp. 196, l!7.

xi MILITARY AUTHORITY 351

the Japanese autlx .in i. ><

Ariga oonstders thai the confiscation in thi* U*t case may be

i oo the ground that it is a punishment under the

Chinese penal law, I- . preoedente of modern European

war, which show that confiscation is known to the custom* of

war.* But when one geta back, behind precedent*, to the

la of the matter, it is by no means easy to give a definite

answer as to the pr -f confiscation. It is a method of

1'imifihiiivnt which is conspicuously open to abuse; but so, in

tost equal degree, is pm unfa men t by fine. Blunt* h 1 1
th -n to the German decree of 1870 that the

'h* p iniahmonU preeoribed by it last beyond the period

ties, whereas martial law punishment ought to end with
the war." Tet if no punishment of a military court were ever The pro
to outlast the war, the kind of imprisonment that is really

' Trent one year and over would have to be left oute >^ e
category of military punishments; for the tendency of lo

ory is to make wars short and swift and if a " Seven kl * red -
Weeks' War" is abnormal, a war that is fought and done with
in a year or thereabouts may fairly be taken as representative,
in the matter of duration. If a court cannot inflict heavy
sentences of imprisonment, it will be disposed to insist on
capital punishment in many cases in which a less penalty, but
still a severe one, would have sufficed. Again, as regards the
ethics of confiscation, one may argue in support of it that if a
living dog is better than a dead lion, a man despoiled is better
than a man killed ; and that if his fate be in the balance, he
would himself gladly purchase his life by the surrender of his
goods. It is allowable to fine an offender say 1,000 : is not
t his confiscation ? In the case of the Chinese merchant*, it
was essential to impose a heavy punishment for the sake of
inti men had fled, the only possible punish-

ment was the seizing of th* ir property. So far, again, as the

IH affected, there is n., difference between the destine- n m *

it <t his property and the confiscation of it In every ESS?"
modern war, the destruction of houses, farm buildings and ^^E"*
Milages has been one of the modes in which the outraged**?

' Aria* op. <*. pp. 387-9. ML pp. 400-1.

Bloiiuchli. op. e*. MC. MO.

352 WAR RIGHTS ON LAND CHAP.

majesty of war law has avenged itself; such a form of punish
ment seems to recommend itself above all others to the
military mind, if one may judge from the events of history.
Whole towns (e.g. t Ablis and Fontenoy) were burnt down in the
war of 1870-1, to punish the inhabitants for breaches of war
law. The record of the farms and buildings burnt in 1900 by
the British troops, as a punishment, and before the policy
of devastation was adopted, fills many sombre pages of a British
Blue Book. One may question, as The Times historian does,
in the the policy of burning houses as a method of intimidation, 1 but

war right ^ an occu P ant to punish in such a manner is
undoubted. In January, 1902, Sir Henry Cam pbell-Bannen nan
i n< 1 11 i red, in the debate on the Address, if farm -burning had
been abandoned ? Mr. Balfour replied :

As we understand the matter, farm-burning is not given up in
those cases where farm-burning is a military necessity ..... The
Boers are perfectly alive to the fact, as we are, that by the
laws of all civilised warfare there are circumstances which render
it expedient, right, and even necessary, to use the penalty of
farm-burning. And when these circumstances arise, I hope and
believe that our generals will not shrink even from that necessity,
painful as it must necessarily be. 2

The first indiscriminate destruction was, however, stopped in
November, 1900. An officer who belonged to a column
which was largely employed on such punitive work relates that
as there were so many grounds on which farms could be burnt
because they had sheltered Boers, because the owners were
absent on commando, because the railway had been destroyed
in the neighbourhood his column generally burnt all they
came to to " make sure " only sparing those of which a list

1 Time* History, Vol. IV, p. 494; the writer says "The policy fitfully
adopted after the beginning of Jane (1900) of burning down farmhouses and
destroying crop* as a measure of intimidation had nothing to recommend it,
and no other measure aroused such deep and lasting feelings of resentment.
The Dutch race is not one that can be easily beguiled by promises or moved
by threats ; farm-burning as a policy of intimidation totally failed as anyone
acquainted with the Dutch race and Dutch history could have foreseen.
British officers who had served on the Indian frontier had been accustomed to
the destruction of the towns and villages of the tribesmen as a normal act of
war, inseparable from the conduct of hostilities."

1 Wyman's Army Debate*, Session 1902, Vol. I, p. 45.

xi MILITARY AUTHOR1 353

had been handed to the column on netting out. 1 The outcry
inland l.-d to tho abandonment of thin policy, which was
clearly U.th unjust and impolitic, and on 18th November, 1900,
I Roberto issued the following on!

AH there appear* to be tome misunderstanding with raferenoe to f^
roing of fartiw and breaking of dan*, Ctammanderin-Chief Um.t. K .
M the foUowing to be lines on which General Officers
Cominanding are to act :

farm IB to be burnt except for act of treachery, or when
troops have been fired on from premises, or as punishment
breaking of telegraph or railway line, or when they have been
used M baetti of operation! for raids, and then only with direct
consent of General Officer Commanding, which is to be given in
g; the mere fact of a burgher being abeent on commando
in on no account to be used as reason for 1m mm- the house.
All cattle, waggons, and foodstuffs are to be removed from all
farms . if that U found to be impossible they are to be destroyed,
whether owner be present or not*

e, it will be noted, the principle a perfectly sound one is Martial
affirmed that property may properly be destroyed as a punish- ^J^
in. -iit ..f breaches of war law or martial law regulations; and i
it may bo destroyed, it seems to me to be illogical and almost
pedantic to say that it may not be confiscated.

reader who has survived my last dozen pages will

doubtless have come to the conclusion that martial law is a very

drastic, tyrannous, and primitive law a law which is a jumble

of bad old laws curfew laws, sumptuary laws, con\ ;icts,

grand mot h.-rly acts whi.-h interfere intolerably with individual

^ulate the daily life of the < it of all

Indeed, it is so; but there is a cogent reason

its being so. Martial law must be primitive and despotic

because it deals with a primitive condition of things, in which

the rule of might prevails. It is the law which runs as Ix-tween

the enemy and the local resident and which is established for

tor's security ; and, as I have said, it must, in the nature

hings, consider the enemy's interests first and prin.-i] tally.

In matters which do not affect the interests of the invader, the

generous principles of the Hague Article, and especially Article

* L. Mareh Phillipa. ITM ffimimyton, p. 901.

* rnxfamat*m*Q/r.M. Lord Rob*** (Cd. 426). p. A

354 WAR RIGHTS ON LAND CHAP.

XI. I II. come into play. That Artich- is the result of a
"boiling down" process which it i- mstnictixe t<> fnll,,\ v . A

Original originally drafted for the Brussels ('onim ncr, the Article was

jfTai\o spun out into the three following :

miniitra- ( a ) The enemy who occupies a district can, according to tin
tionof requirements of the war and in the public interest, either maintain

territor* 1 *" * u ^ * orce tne ^ aws ex * 8t * n 8 there in time of peace ; modify them
in part; or suspend them altogether.

(6) In accordance with the rights of war, the chief of the armv
of occupation may compel the Departments, as well as the ofl
of the Civil Administration of Police, and of Justice, to continue
in the exercise of their duties under his superintendence and
control.

(c) The military authority may require the local officials to
undertake on oath, or on their word, to fulfil the duties required
of them during the hostile occupation ; it may remove those
who refuse to satisfy this requirement, and prosecute judicially
those who shall not fulfil the duties undertaken by them. 1

j ll ] The Brussels Conference modified the above proposals in
draft. such a way as to restrict the occupant's rights, and in the final

project of that Conference the three Articles just quoted an-

found compressed into the two following :

(a;) With this object (i.e., to maintain public order) he will
maintain the laws which were in force in the country in time of
peace, and will only modify, suspend, or replace them by others if
necessity obliges him to do so.

(y) The public service, and the functionaries and officials of
every class, who, at the instance of the occupier, consent to
continue to perform their duties, shall be under his protection.
They shall not be dismissed nor be liable to summary punishment
unless they fail in fulfilling the obligations they have undertaken,
and shall be handed over to justice only if they violate those
obligations by unfaithfulness. 8

The refining and concentrating process was continued at the

detwte. First Hague Conference, which combined Article (x) with the

Article which preceded it, and suppressed Article (y). At this

Conference a determined opposition was offered by the Belgian

delegation (which could speak impersonally and impartially,

since Belgium is a neutralised State) to every proposal which

seemed to give an invader a right to services or tribute in the

1 Bnmela B.B. p. 159. 2 Ibid. pp. 248, 320.

xi MH.riAUV \l illoki I ^ 355

territory of his enemy. M It seems to me," said M. Beernaert,
we ought not to sanction beforehand, as a right, that
h belongs necessarily to the domain of fiust and force." He
'ted the propriety of an international convention to respect
ite property, buildings devoted to art or charity, or to con-
fine taxation to certain defined objects ; but he pressed strongly

pie that the war rights of an occupant should
be specifically recognised in the ( ' >n, but should rather

be left " under the empire of that silent, universal law which
results from the principles of the law of nations." l The Dutch
delegate lent his colleague strong support in the discussion to
tssels Article (y) gave rise. Any disposition, said
the latUT, which seemed to authorise, directly or imlirv

h'cials of the invaded country to enter the service of the

invader, was a disposition which ought to be struck out This

prevailed, though it was not disputed that certain officials,

notably those of nun , would sometimes best fulfil

moral obligations to their country by remaining at ti

|Hst>. ilr-pit,. tii,- piv-M-nr.- of th,- . -M.-IIIV. '

The priin-ipli' of the Hague Articles relating to the govern- The prin
ment of an occupied country is both humane and wise. It is J^ntlin
all to the occupant's advantage to let well alone. It is his f"
interest to accept an existing routine, to interfere as little as wJL luad"
possible with the ordered cycle of daily life, to avoid altering
taws or regulations which are compatible with a " state of siege,"
and to see that justice is administered properly in civil and

ilnal cases, which end will usually be secured by leaving
existing institutions in force. Recruiting laws must obviously
be suspended. An occupying belligerent cannot allow the
adult males of a territory, of which he is the de facto ruK
swell the number of his active enemies. "The conscription
ordered by the French Government," says the German Official JJJJ
History oftiu War of 1870-1, " had to be resisted by preparing
I lists and keeping a sharp watch over those persons who were
eligible as soldiers. This was especially necessary in

; icts of Alsace that bordered upon Switzerland." 1 I have
already referred to the decree which was issued in

1 HagM L aa p. 58, 54. Ibid. p. 148.

Gorman OfiM Hrtory, Part II, Vol. Ill, p. 138.

A A 2

356 WAR RIGHTS ON LAND CHAP.

Lorraine and which Mil>jvtr<l any person leaving the ]>r.. \imvs
to join the Fr- n h armies to banishment and confiscation of his
goods. 1 In other occupied territories, if persons subject to tin-
French conscription left their homes clan<l stim ly and wit hunt,
sufficient motive, their relatives were tin* ! fifty francs for each
day of absence. 2 The German measures were drastic, bu
Hall observes of the Alsace-Lorraine decree, they were possibly
the least severe measures that could have sufficed to end a
practice which was a very great and direct danger to German
military interests. One can hardly question a bellip i ni >
right to prevent, by force of arms, the inhabitants of an
occupied province from joining their national army, and it he
may shoot down those who try to do so openly, he may reason-
ably claim the right to mete out severe punishment to all
principals and abettors in any treacherous and secret attempt
which has the same object. To play at being a non-combatant,
with the rights and immunities which the character gives, until
one can steal away to the national standard, bringing, perhaps,
invaluable military information as to the occupant's dispositions
and numbers, is, so far as the occupant is affected, a hostile
act which merits condign punishment.

The rule The practice of modern wars has been to leave existing laws
Jlata- in force, unless they are quite irreconcilable with a state of
taming occupation, as recruiting laws are. It was decided at tin-
fews Brussels Conference, and it is recorded in the Protocols as a
Specially coromentary n the text, that the provision as to maintaining
to civil existing laws is meant to apply especially to civil and penal
criminal l ftws J usually there should be no necessity for suspending or
1 IW - modifying such laws, as there may be in the case of political,
administrative, and financial laws. 3 Professor Holland says
that it may be necessary to vary the criminal law, as well as
the other branches of Public Law 4 ; but generally an occupy-
ing belligerent does not interfere with criminal law any m.n-
than with civil. After the fall of Santiago in 1898, General
Shafter was instructed by President McKinley to proclaim that

the civil laws of the conquered territory, so far as they touch
private rights, persons, and property, and the punishment of crimes,

1 See p. 360, supra. a Hall, International Law, p. 477, note.

BruMels B.B. pp. 239, 291. < Official Laws and Customs of War, } > M,

i Mil :Y AUTHORl 357

11 be considered as ren fores, so long as they are

* ith the new Ute of thing*. 1

And General Milt* informed the people of Porto Rico when bo

establish, ,l hm occupation that " the government of the United
- w.mM make no change m voting laws ao long an the
people complied v. ml.-* of the military administration

ami - i In 1900 the Britiah authorities maintained

(ii* "Common to LAW of the Transvaal" in the

occupied territories, and all offence* (torts or crimes) affect

rests were dealt with under that

law.' The Japanese did not interfere with the Chinese penal

laws in Manchuria during the Russian War, except in so far as

lashed with th<> regulations under martial law. Indeed,

Upanese military tribunals borrowed to some extent from

the Chinese law in tin ir .-id ministration of martial law; fr

instance, they adopted th< practice of rewarding, as well as

punishing, as a means of ng penal and administrnt

regulations, an. I th< v imposed Chinese criminal punishments

i> th pillory and flogging. 4

Usually an occupying army finds a law of the soil in The
existence, hut it may hapj th.-re is none none worthy

of the. name, at least and th< n there is no alternative but to !**
create laws for the governing of the country. Such a condition w

of things would rarely be found in < ivilised war; perhaps the ***
only mod, in instance is that of Bulgaria in 1877-8. The
Russians, says Professor de Martens, were quite unable to
comply with th< Brussels rule which enjoined respect for local
laws and institutions, for local laws and institutions there were
none. The country was in an anarchical state, and the occupying
army had to establish a completely new social and political
rtyiftu, both for its own security and for the good of the
inhabitants,*

10 comes now from the law to the courts which administer Ii *
t h . law. As the maintenance of order makes for the occupant's 2St l '

* ibid, p. 801

See Proclamation No. 20 of 1000," dated lit October, 1900, ...
utfF.M. ZMJbWr*,p.90;wealK>Ho, 19of 1900.

iga, op, fil. pp. 186, 889, 41"
v Uartem, la /ttref fo Gfcerre, p. 943.

358 WAR RIGHTS ON LAND CHAP.

to let security, it is his interest to allow the ordinary admim-tiat i.m
of justice to continue as before. To see that justice is done as
between man and man, and that malefactors are brought to
book, is an essential condition of good government ami pro-
motes the submission of the inhabitants to the rule of the
stranger. Delicts ami crime -s against common law can usually
be adequately dealt with by the local courts, and it is only in
the case of attempts upon the occupying troops or infract inns
of martial law regulations that an occupant would onlinarilv

But in find it necessary to administer justice himself. Hut if the
nia.-liin.TV "f ju-tin- has br.-n M li>|..rat.-l l.y tin- ru-nts of
the war as to be out of gear or inoperative if, for instance,

court* or the courts have been closed and the judges have fled or if the
judges decline to sit, then the occupant is fully entitled, and
in<loed called upon, to establish special tribunals for trying
offences against common law. In 1900, Lord Roberts found it
necessary to erect such courts in the Transvaal, to deal with
" offences under the Common or Statute Law of the Trans-
vaal," and magistrates were appointed to preside over such
courts. 1 A central court was established at Pretoria to have
cognisance of all cases, civil, criminal, and mixed ; its heavier
sentences were subject to the confirmation of the Military
Governor of Pretoria. 2 A like difficulty in respect to the
administration of justice was experienced by the German^ in
1870-1. Some of the French courts suspended their functions

Difficul- and German magistrates had to be appointed instead. The

JJjJtt^ 11 ' ground for the action taken by the local judges was a suspicion
he that the German military authorities wished to interefere with

tration'of tne freedom of the courts and the administration of justice ;

justice in but there was also an element of difficulty in the fact that
France had ceased to be an Empire and had become a
Republic since the time when the magistrates were appointed.
The Germans had political objections to recognising the newly-
formed Republic, while all France was averse from owning the
authority of" the Man of Sedan" the ill-fated Napoleon III.
As a compromise, the court at Nancy was asked to dispense
justice " in the name of the High German powers occupying
Alsace and Lorraine," and the courts of Laon and Versailles

1 Proclamations of P.M. Lord Roberts, pp. 19, 20. 2 Ibid., p. 9.

xi MILITARY \l IHORITY 359

name of the LAW." All throe declined, and German
.jos were act up in their, stead. 1 The former of the two

mentioned above is clearly objoctionabl.
amount^ to rooognising the sovereignty of the invader ; bat it is
hard to see any objection to justice being administered M in the
nan It is an innocuous formula, which has the

blessing of *> -is as Bluntachli and Hall, and it would

have surmounted the difficulty caused by ha . o kings

at Brentford "the Republic and the Emperor. The judges
were per tul^i to v U ,j>-i. -ions, but I con-

fess I cannot see anything transcen<l< mlv "noble" in the
action of the Versailles and Laon courts. They were not
threatened, as the Nancy court was, with German interference
and pressure, an<l I think it is French patriotic enthusiasm

ion a critical appreciation of all the circumstances that
has led the French \\ nt.-rs to hold them up to admiration.*
In the occupations established during the Spanish- American

War, " the administration of justice remained exactly the same
in principle as under the Spanish rule. The magistrates who in
consented to remain continued to render justice, and to render
it in tho name of the government which had appointed them." *
Except for offences against the United States Army, the
repression of all crimes and delicts was left unchanged under
ccupation, and Spanish judges dispensed Spanish laws
although Spain's power had ceased in the islands for all other
purposes. 1 In the Russo-Japanese War, the Japanese authori- *nd
ties left tho hearing of all causes as a general rule to the
se tribunals, and it was only in the three following
eases, says Professor Ariga, that crimes and delicts under
r..ii i m. .M law were dealt with by the occupying army :

(1) In th<> .! Kuang-Tong and in the port of Ting
Keou, where there were no Chinese functionaries, the maintenance

ler wai the duty of our army ; consequently, it had to repress
nil tho crimes and delicts of common law.

(2) In !..- territories where there was a Chinese governor, it
devolved on the latter to punish all crimes and delicta, except
treason, against our army. Bat, as a matter of fact, oases

p. M ; BaofiU, op. c*. MC. 1167.
SM Hall, Inltnmtiomml La*, p. 476 ; BlunUchli, <y. c*. ate. 547.
R.U.I. September October, 1896, p. 601.

360

WAR RIGHTS ON LAND

CHM

A.I minis.

f ntt trtn f

justice

Boer War.

The civil

mins-

t mt ir na

um ler

occurred in which the offender had not the intention of injuring
our forces, but in an indirect way the honour, interest, and
dignity of our troops were assailed ; for example, in the case of
attempts upon our soldiers, robberies of provisions, " uttering " of
false military assignats, etc., such acts had to be repressed directly
by our army or indirectly by the Chinese authority on the demand
of our army.

) Crimes which had no relation with our army were sometimes
punished by it, on the demand of the Chinese authorities. It
was so especially after a great battle, when the local ant IK.I it it-
were unable to restore order on the battlefield and entrusted this
duty to our troops. It was thus for several months in the neigh-
bourhood of Mukden.

In these three cases, the Commission of Military Adminis-
tration, or, in its default, the post commandants, tried the
offences and delicts of common law ; the gendarmes formulated the
accusation and executed the sentences ...... Sentences of

imprisonment were usually carried out in the Chinese prisons. 1

One finds the same principle of non-interference with tin
ordinary local courts promulgated in the official orders n -hit m^
to mart * a l l ftw w hi cn were issued in the Anglo-Boer y
A "Confidential Memorandum," dated 30th January, 1900,
which applied at first only to proclaimed districts of Cape
Colony, but was subsequently extended to the Orange Free
State, instructed the commanders in the field to allow ordin.ii v
offences to be dealt with by the civil magistrates' courts in
the usual way ; only such offences as aiding the enemy,
seditious language, destroying railways, etc., as well as breaches
of martial law regulations, being taken up by the military
courts. 2

In all civilised countries there exists a vast and complex
or g an i sm whose function is the performance of those duties
for the sake of which all State Government is establish < 1.
That organism is, anglice, the " Civil Service." The duties it
is charged with performing are mostly as necessary in war as
in peace, and they are duties which an occupant would have to
perform by means of his own agents should he find no officers
of the old Government already carrying them out. Besides
the officials of the Civil Service, a great number of municipal

1 Ariga, op. cit., p. 410.

9 Papers relative to Martial Law in South Africa (Cd. 981), j>

xi Mil II \!< 1 HORITY 361

ils are also engaged in the practical ailiiiiiiigiiilMii
puhlic affairs No government could be carried on without
<issistanoe of a vast numb* servants, whose

so, nun ties oorroepood with all the needs and

that complicated human machine, the modern
organised State community The position of the H<lmimtnr
officials in an occupied t- is a delicate one; they are

dragged one way by their duty to the State and the bon<i
ti-m th. i.t: |H.|ulation to whose

were assigned. Conventional war law gives them
of abandoning their posts naming and

serving the occupant The latter is usually eager to accept It u bt
r services, for he is relieved, pro tanto, of the troublesome ^^ Di
and costly obligation ,,i timling officials of his ownstrangers not to
to the country and its customs and needs to carry on the J^

.!! \\Tk ..:' :uiniinistnitiMii. He may take measures *J^5f lli *'
control and supervise the work of the old officials, in such a way official*.
as to serve his military interests, but it is all to his advantage
to let them continue to perform th. -ir u>. ful nccessai ions

with as little interference as possible. When Sherman occupied
Memphis in 1862, he addressed a letter to the mayor in which

I mutely, at tl>i-> time, rivil war prevail* in the

and necessarily the military, for the time being, must be**^* 00
supei rivil authority, l.ut it il.n-s not therefore destroy p oinl al

il courts and executive officers should still exist and Mnphu,
in the duties, without which civil or municipal bodies would
soon pass into disrespect an end to be avoided. I am glad to
fin- 1 in Memphis a mayor and municipal authorities not only in
existence, but in the co-exercise of important functions. 1

At Savannah, again, in 1864, he allowed the Mayor and the City and 8a-
Council to continue to excrcih. notions, and - in concert

t he commanding officer of the post and the chief quarter-
master, to see that the fire companies are kept in organisation,
the streets cleansed and lighted, and keep up a good un
standing between the citizens and soldiers." * The German The
commanders made use of the French municipal officials in |*
l 9 officials, says the German Officvd History,

1 Sherman, Mtmor., Vol. I, ,, Ibid. VoL O, p. 2OL

362 WAR RIGHTS ON LAND en

anthori- "rightly appreciating the true interests of their country,
Jjjjjj,, carried out their duties, even under the most trying con-
1870-1. <Hti.ii>." 1 Sometimes, however, they endeavoured to contii in.
their work without reference to German control, and in such
cases the German Governor-General took the administration
out of their hands. 2 Usually, in the occupied towns, a German
official was appointed to act in conjunction with the municipal
committee. 9 Police duties were sometimes left entirely to the
French gendarmes or National Guards (as at Versailles), but
the apathy of the local police authorities, or the paucity in
numbers of the French police, made it necessary sometimes for
the German Field Gendarmerie to be employed on such duties
as well. At Rouen, a mixed duty was arranged, the streets
being patrolled by parties of two Prussian field gendarmes and
two French sergents-dc-ville*

French If the municipal authorities were willing to serve the
men! invader, the French Government officials, in the great majority

officials of cases, refused to continue in office. The Germans had con-

fu-i i
to serve templated securing the assistance of the civil functionaries

under the j n the work of administration, as will be seen from the " In-

/^jl pjfia

in 1870-1. structions for the Governor-General of an occupied Province "
which were issued by the King of Prussia on 21st August,
1870. 6 These instructions directed the Governors to avail
themselves of the services of the civil administrative authorities
of their districts. But, as a matter of fact, nearly all such
officials either fled or refused to serve under the Germans. In
the latter case, they were sent into the interior of France. 6
It is very doubtful if the French people themselves did not
suffer more than the German armies from the absence of the
civil officials. What Bluntschli says of the action of the

1 German Official History, Part II, VoL III, p. 137. a Ibid. p. 1.17.

Cawell'e History, VoL I, p. 395.

4 German Official History, Part II, VoL III, p. 233. A similar method was
followed at San Stefano in 1878, mixed patrols of Russian soldiers and
Turkish gendarmes parading the streets. It did not work well there, but
San Stefano could hardly have been kept in order, at that time, by
anything short of a battalion picketed in each street. See Von Pfeil,
Experiences of a Prussian Officer in 1877-8, p. 311.

German Official History, Part I, VoL II, appendix 54.

Busch, Bismarck, Vol. II, p. 177

xi MILITARY AUTHORITY 363

' rian authorities in the Seven Weeks' War, is of general

truth and applicability:

It is bad policy to do what the Anstrians did in Bohemia in
1866 at the time of the Prussian occupation to order all the
functionaries and even the y+iicfamst to leave the country which
the enemy was about to occupy. The enemy suffers much less
from such a measure as this than the inhabitants themselves, in
whose interest the adin .Disestablished. The Government

r* * very grave responsibility towards its subjects in abandon-
ing all the public offices and services to the mercy of the
enemy. 1

Professor Ariga also insists on the moral duty <>f th<- .-ml
administrative officials of an occupied country remaining at
th< ir posts in the interests of the inhabitants themselves. 1

The political officials of the old Government cannot, obviously,
do any good by remaining, f<>r th.-ir employment under the
occupation is out of the question ; but the case of the ordinary
civil, financial, and police functionaries is quite different Yet
in most modern wars, the officials generally have preferred to
resign their posts to serving the invader. No trace could be
ho Ottoman officials when the Russian armies
established their occupation of Turkish territory in 1877.* The
Greek officials resigned, under the orders of their Govrnu
when Thessaly was occupied in 1897. 4 On the other hand, the
Saxon functionaries showed themselves more complacent than
those of Bohemia in the war of 1866, and so did the cm!
occupied territories of Nassau, Frankfort, Bavaria,
and Hesse-Darmstadt In these cases the old administrations
and officers were retained, but under the supervision of Prussian
Commissioners.* The circumstances of Korea and of Manchuria
luring the Russo-Japanese War were peculiar, for they were
not, strictly speaking, hostile countries. But the occupying
Japanese armies were not the less interested on that account in
seeing that the civil administration was carried on without a
hitch and that order was maintained. At first the Korean
officials fled before the occupying forces, but they were ordered

1 BlunUchli, op. rif. MO. Ml. Arism, op. c*. p.

Ds Martens, op. e*. p. 321.

4 K.D.I. September-October, 1887, p. 708,

Hosier, Strn Wki Ifor, pp. 196, SI 1.

364 WAR RIGHTS ON LAND CHAP.

to return by the government of Seoul, and on their return they
carried out the duties of administration, subject to the cunt ml
of the Japanese commanders in all questions of military
interest 1 The Manchurian officials, too, were retained in
office ; where no officials could be found, the notables of the
village were directed to take steps to provide for the adminisi ra-
tion of the locality. In only one instance during the war was
the Chinese Government requested by the Japanese authorities
to remove a local functionary. As Professor Ariga points out,
the nature of the circumstances made it easier than it normally
is for the local officials to remain with a clear conscience at
their posts, for they could do so without feeling that they were
serving under the enemies of their country. 2

Spanish Iii this, as in some matters, there was a divergence betu

jjjjjjjjd the practice of the United States in the Philippines and in
'>! Cuba in the war of 1898. Both at Santiago and at Manila the
,?t at Spanish functionaries remained at their posts. Those at Ma n i I a

Santiago. were retained in office. At Santiago, General Shafter derided
at first to keep the municipal authorities in power ; this decision
of his was, indeed, the occasion of his breach with the Cuban
insurgent chief, Garcia, who declared, when informed of it, that
" he could not go where Spain ruled." Shatter's intention was
to form a mixed military and civil administration. However,
President McKinley, after an abortive proposal had been made
to entrust the administration to a Council elected by the people,
decided that the difficulties in the way of constituting a govern-
ment on the basis of universal suffrage were insuperable, and
ended by abolishing the civil administration and establishing a
purely military one. 8

The The local functionaries of an occupied territory are brought

into touch with the occupying army in many ways. Besides

ionen of their general duty of carrying on the administration of the
country, to the common benefit of the people and the foreign

'" army, they constitute the channel through which the war rights
of the occupant to services, to requisitions, to contributions, are
exacted from the inhabitants, and it is usual to make them

1 Ariga, op. cit. pp. 68, 68, 59. ' iga, op. cit. pp 427, 429.

R.D.I. September October, 1898, pp. 803-4; Titherington, op. cit.
p. 320.

xi MILITARY UTiloUITY 365

collectively n*ponsil ompliance with the occupants

martial law regulations withm the sphere of their auth-

I .H, therefore, a in moment that an understanding

.1.1 bo arrived at between the local bodies and the occupying

i*. To secure this end a special corps of " Commissioners
of Military A<ii > m Manchuria" was formed at Tokio

at the beginning of the Kuiwo-Japanese War and despatched to
t h< Moat of war. It was composed of officers of the Headquarter
Staff who were familiar with Chinese manners, customs, and
language, and it* function was to act as a " buffer " between the
Japanese armies and the Chinese authorities. The Japanese
commanders were instructed to address the Commissioner* on
all subjects relating to requisitions and the like, and the latter,
from their local knowledge, were able to " manage " the Chinese
iries, and to obtain without difficulty everything that
tin armies required. The plan was found to work admirably,
and Professor Ariga suggests that it is one which might be
employed with advantage in future ware. It is obviously
calculated to lessen friction and to promote sympathy and a
good understanding between the troops and the inhabitants. 1
A functionary who accepts service under the occupant retains

right to resign subsequently, and cannot be punished for official*
exercising it This was agreed at the Brussels Conference. 1

service is a voluntary one ; but reasonable notice of the
intention to resign is obviously desirable, and the occupant may
require such notice in order to prevent a breach in the

unity of administration.

May the occupant exact an oath of fidelity from such officials Can *o
as take service un<l-r him ? The French official manual says iw^j,
no, the German and American manuals say yes.* Professor g*** 1
Le Fur states that the practice of imposing an oath of this kind retained
is "to-day nnivi -really rejected," and he points out that theJUJg*?*
Americans required no such oath in the Spanish War, despite
>f the American Instruction*.* Hall and Bluntachli.
on the other hand, hold that the occupant may properly require

1 Arigm. op. eft. p. 0. * BmMtb RR p. 941

.Vnr/irtf^rfjO/rmr, pp. 98. 100;
PL 66 ; Am**** /MTmeCtoM, Article 96.
A /' /. September October, 1808, p. 000.

366 WAR RIGHTS ON LAND CHAP.

officials serving under him to swear to obey his orders and n<>t
act to his prejudice. 1 To me the latter view appears the m<n
correct one. If the old officials consent to serve the new ruler,
they become his officials, and owe him that faithful official service
which is not so much the tribute of a patriotic subject, as the
performance of work in return for the payment of a sjil.u \
Many a servant of the State has, in peace-time, to serve a
Government whose politics he abhors, but whom he serves
faithfully, none the less, for the sake of his bread and butter.
The oath in question is not one of allegiance ; it touches the
official as an official, not as a subject, and his taking it in no
wise affects his nationality. The fact that the service is
voluntary does not lessen the official's duty to serve faithfully
so long as he does serve ; and if the occupant wishes to bind
him to such a duty by the sanction of an oath, he is asking no
more than what the very acceptance of service in the first
instance ought to imply. The official can always resign if he
does not care to give the oath.

The occu- The recognition of the occupant's authority carries with it
JcSTare tne r 600 ^ 1 "^ 011 f tne validity of his various acts of government,
valid. Generally speaking, the juridical acts and relations authorised
by him or his agents are " good " in law, and cannot be annulled
by the legal government on its restoration. " Judicial acts,"
says Hall, " done under his control, when they are not of a
political complexion, administrative acts so done, to the extent
that they take effect during the continuance of his control, and
the various acts done during the same time by private persons
under the sanction of municipal law, remain good." 2 The same
writer goes on to point out that to deny the validity of such
acts would not only bring the social life of a community to a
standstill during occupation for no one would enter into any
legal relation if it were to be nullified the moment the
occupation ceased but that it would be unjust to the individual
inhabitants and impolitic as regards the community at large.
To recognise an occupant's power to collect taxes, for instance,
and, notwithstanding this, to demand those taxes of the citizens
a second time, would be most unfair and illogical ; to expect him

1 Hall, International Law, p. 476 ; Blnntachli, op. cit. sec. 651.
* Hall, International Law, p. 488.

xi Mil II \IO \l I IIORITY 367

to maintain law and order in an occupied territory, jet to upset
nil the sentences passed by his court* for common law offence*,

I be equally inconsistent and imjN.imf. Considerations of
general convenience approve the rule that acU dona by the
occupant, within his power* at an occupant, stand. Bat he
must not have exceeded those powers. His powers of admin w- ntp-

\ ond the duration of his occupation ; JJJJ" '

he cannot i..i.-l his successor, the legal, restored ruler, for to do JT** 1
so would be to encroach on the latter'* sover If the "

lgal government were obliged to recognise the continuing
effects of any act of administration carried out under an
occupant's auth-- w weeks' occupation might possibly

result in servitudes being set up or obligations undertaken,
Ahi.-h would prejudice the legal government fora generation.
In IsTl an important case arose which, says Sir W. Pitt
Cobbiat. " illustrates the principle that, although acts done in a

1 ry by an invader cannot be nullified in so far as they have
produced effects during the occupation, yet they become
inoperative for the future, jure postliminii, so soon as the
original government is restored." * During the German occu-
pation of Eastern France in 1870-1, the occupying authorities

15,000 oaks growing in the government forests in the

Departments of the Meuse and the Meurthe, and were paid

in advance. When peace was signed, all the trees

had not been cut and the contractors claimed that their rights

in the matter should be recognised by the French Government

he latter declined to entertain the claim, holding that the
re-establishment of the legal government had ipto facto nullified
the contracts entered into by the usurping government, and
Germany agreed to this statement of the law of the case.* It
is obvious, again, that the restored government is not obliged
to uphold any act done by the occupant which is from the first
ultra viret ; if, for example, the latter alienates the domains of
the State or the sovereign.* Neither is he called upon to
recognise the purely political acts of the occupant, or such
judicial sentences as have been inflicted for such military
offences as " war treason." But subject to these limitations, as

Oobbttt,
Hull. /MterMriMa/ Low, pp. 490, 4S0, ' Ibid. p. 489.

3 68 WAR RIGHTS ON LAND i -HAP.

I'll let observes, the acts of the ocou | > mi are entitle'! to respect,

and the fact that they arc acts done by an enemy does not

impair their validity." 1

Inhabit- Article XLJV is an extension of the principle contained in
ant4i^mo8t ^.^ XXIII, last paragraph, and these two articles gave rise
compelled (^ a ver y lengthy discussion at the Hague in 1!()7. The 1899
military l&gUnunt had only a single artiele dealing with the sul.j.vi
! " a - now legislated for in Article XXIII and XLIV ; that article

read:

Any compulsion on the population of occupied territory to
take part in military operations against its own country is
prohibited.

This article was modified and transposed to its present plan m
the chapter dealing with " The Means of Injuring the Enemy " :
in its modified state it is now the last paragraph of Article
X MIL But the delegates held that enough had not been dne
to safeguard the patriotic sensibilities of populations, and the
present Article XLJV was therefore proposed, accepted, and
inserted in the chapter on Occupation.

The CMC The chief interest of the Hague discussion is its bearing on
the intention of the two articles as to the forced employment >i
guides. The article of the 1899 Riglement was interpreted as
allowing such employment. That article was identical with the
article approved at Brussels, at which conference a longer
article had been proposed forbidding the compulsion of inhabit-
ants to take part in " acts of such a nature as to further the
prosecution of the objects of the war, to the detriment of tln-ir
own country." 2 This provision, it was felt, went too far; as
one delegate remarked, " No Government would engage not to
press guides into the service, not to employ the labourers
of the country on lines of communications, not to compel carriers
to transport the means of subsistence, and to perform other
duties." 2 The original proposition was therefore amended in
the sense of the article of the 1899 R&glement, which evidently
would not have been interpreted by the Brussels delegates as
forbidding the forced employment of guides. And the
interpretation of the service manuals of Great Britain, the

1 I'illet, op. cil. p. 265 ; see alao Bluntschli, op. cit. sec. 731.
* Brussels B.B. p. 172. ' Ibid. p. 267.

xi MILITARY AUTHORITY 369

d Stau*, Pimnoe and Germany, was the Mine as ibr
Brussels delegate. 1 There is n<> '-' u> practice,

ili-- pretBiiiig of guides baa been retorted to in modern wan

ing any strong objection on the toore of illegal

So fur f. >r t )u* provisions of the older RigUm*d : what is one to UK dboi
say to the new dispensation-articles XXDI ami **

Do thf\ r allow the compulsion of guide*? Professor **&

Holland thinks not, and mentions the (act that a proposal to
insert an express provision forbidding the pressing of guides was
opposed by Germany, Austria, Russia, and Japan.* But, aa I have
itod under Article XLIV at the beginning of the chapter,
irti.-l,- has not been found acceptable, as drafted, by these
Powers, and one may reasonably* <M,lu<l, I think that the rock
of offence was the implied prohibition of the pressing of guides
contained in its terms. It ia quite certain that the committee
which approved the article at the Hague in 1907 did intend
to forbid the forced employment of guides ; this is perfectly
dear from the committee's report. Austria had proposed to add
th. words "as combatants," to the German text (the accepted
one) of A- \XIII, last paragraph. '' The (^ rmm proposal,"
goes on the report, " was of wide application ; the Austrian
amendment had a very different bearing, aa it permitted the
Mg of a population to render assistance of any kind so long
as it was not actually connected with the battle itself, and
especially permitted the compulsion of guides and the adoption
rcible methods of obtaining information. ..... I

view of Austria was not shared by the majority. On the
contrary, the committee voted in favour of the Netherlands
ameiidm* ng to the same subject and of a diametrically

opposite tendency." * The amendm i red to is the present

CUT I entirely agree with Professor Westlake (and
his opinion is, I know, that of Professor Bastable also) that the
latter Article ought to be conclusive against the forced employ-
ment of guides. 4 Indeed, I think the practice is condemned by

1 British official La*a*d OuftMU <tf War, p. 34 ; Amtntam /iirfnrtMMu,
Article W ;*<* A rtf0r, p. IIP ; JTmy6r^ic4 im Lm^dkntgf, p. 48.
* Holland. Law* </ War on Land (Oxford, 190*). p. 5S.

1908). p. 108.
WestUke, /Hlrrmtliomtl La*. Part II, p. S.

B B

370 WAR RIGHTS ON LAND CHAP.

the terms of both Article XXIII and Article XLJV. h ia
forbidden to force the enemy's nationals to take part " in tin
operations of war," not as combatants only but as co-operators
in any military action directed against their own country. If the
Article be not mere empty words, it must forbid such co-opera-
t i. >n as may result, directly and immediately, in the overthrow of
the other army. Now the employment of a guide may have
this effect it is, as a matter of fact, the usual end for which
a guide is employed. If you allow such employment at all, you
cannot, from the nature of war, prevent its being the potentially
deciding factor in a campaign. A competent guide may be of
far more value to a general operating in a strange country than
very many troops, and it is quite illogical to forbid him to
impress men as soldiers if you permit him to impress a guioV
whose employment may be more militarily important and
infinitely more damaging to the enemy than a thousand men in
the ranks. Again, looking at Article XLIV, of what possible
use is it to forbid an occupant to compel the inhabitants to
give him information about the enemy while allowing him to
force them to point out, not by words but by actually showing
the way, a path by which he may full upon the national army ?
The information which a commander wants most of all is very
often just this which some would make it alone legitimate for
him to obtain by force. If Article XLJV can be interpreted as
allowing him to compel an inhabitant, at the point of the
bayonet, to furnish him with information as to the means of
striking a deadly blow at the enemy for that is what the
employment of a guide may mean then, I submit, one m
just as well be honest about it and strike both the final
paragraph of Article XXIII and Article XLJV out of the
Rtglement. The principle of the two Articles is that it is odious
to force men to co-operate in the defeat of their national forces
and with this principle the forced employment of guides is
utterly at variance.

Punish- Usage allows of the capital punishment of a guide who
* or purposely misleads the troops, not only if he has volunteered

mislead- or acted willingly, but even if he has been compelled. A draft
Article relative to guides was submitted to the Brussels Con-
ference in 1874, but as it was a new proposition upon which the

xi MILITARY AUTHORI 371

delegates had not received inxtruotions from their Governments.
it u.i^ M..I 'iiflcussed It ran an follows:

i habitant of a country, who hat " voluntarily * jarred a a
guide to the enemy, u guilty of high treeaon ; he t not, however,
!mU to punuhroeat from the moment be ha* been "compelled* by
the enemy to serve in men oapadty.

A guide, even when be hat been compelled to serve the enemy,
U lUbl to punishment when ho ha* intentionally pointed out
wrong road. 1

The point dealt with in the first of these paragraphs is one
with which International Law has no concern ; it is a question

utnal courts of each separate country. But the
second paragraph enunciates a principle which has had the

practice. For its self-protection, an army must
deal most rigorously with a guide who deliberately misleads it ;
and though it may be thought cruel to shoot a guide who has
been forced into service, the severity may be justified on
general principles as well as by reason of military necessity.
Granted that the man has been ill-treated in the first inatAjy^
that he has a legitimate grievance; that grievance does
not warrant him in <l*>in^ his compellere such a terrible injury
as leading them into an ambuscade or into a hopelessly in-
defensible position Tin < \ il the man has suffered in his own
person is no justification for his endangering the lives of a
whole army, at any rate in the eyes of that army. However
objectionable the original steps taken to secure his services may
have been, he is, when his employment has begun, nothing
more or less than a guide, and a treacherous guide is subject
to the severest penalty of war law. The question has, it is to
be hoped, lost its practical importance for future wars, but that
it is not altogether an academic one so far as some great Powers
are concerned, will be evident to those who have followed
the discussions and reservations of the last Hague Conference,*

' Bru**el* RB. p. 202.

* On the military a*pect of the employment of guide*, Me Colonel A. L>
Wagner's Arm tf Security and format m t pp. 101-2. The wriUr adriee*
the keeping of a guide compteoouaiy under guard, for hit own protection,
even when he u acting willingly. In *everal instance* in the war in the
Philippine*, native* acting willingly a* guide* requeued to he tied and led
with a rope, a* a ruible proof to their people that their twice wa* not
voluntary."

B B 2

372 WAR RIGHTS ON LAND CHAP.

Oat). An oath of allegiance has not, I think, been exacted by a

Jjjjf military occupant on any occasion since that alread\

to in the Secession War, \\hni 1' <1 i h Virginians to

Oath of swear allegiance to the Washington Government. At ti
neutral however, an oath of neutrality has 1 |uiiv<l .f the in-

habitants of an occupied province. Th< taking of such an oath
has no alternative effect on the legal status of the inhabitants ;
if they never took it, they would still owe the occupant the
obligation of remaining neutral. Both the Boers and i In-
British imposed an oath of neutrality on the citizens of tin
territories they occupied during the South African War. 1 Th.
loyalist inhabitants of northern Cape Colony were expelled
from their homes by the Boers, the Boer non-combatant fannT>
were, later on, made prisoners of war by the British, for ref i.
to take the oath. The oath which the British required was as
follows:

OATH OP NEUTRALITY.

No.

I. the undersigned,
in the District of

Do hereby solemnly make Oath and declare that I have handed
in and given up all the Arms and Ammunition demanded of me
by the British Authorities, namely, all Rifles and Rifle Amimuii-
tion of whatsoever description they may be. And I solemnly
swear that I have no Rifle or Rifle Ammunition remaining, ami
that I know of none such being concealed or withheld by anybody
whatsoever.

And I further swear that I will not take up Arms against
the British Government during the present War nor will I at any
time furnish any member of the Republican Forces with assistance
of any kind, or with information as to the numbers, movements,
or other details of the British Forces that may come to my know-
ledge. I do further promise and swear to remain quietly at my
home until the war in over.

I am aware that if I have in any way falsely declared in the
Premises, or if I break my Oath or Promise as above set forth, i
shall render myself liable to be summarily and severely punished by
the British Authorities.

I make the above declaration solemnly believing it to be true,
So Help Me God.

Before me *

1 Time* History, Vol. II, pp. 29^4.

1 Proclamation* of P.M. Lord Robert* (Cd. 428), p.

xi MILITARY \i 1 I \< >!< 373

Breach of thin oath was usually punished with great severity,
esp* he breach were combined with tome other offence.

-! breaking of the oath was sometimes punished with Penal
Servitude for three or five yea -no case, at least the death

sentence was pronounced but commuted by the confirming
officer to ten years' penal servitude.* In other oases, imprison-
ment with hard labour wo* inflicted, and sometimes the

i fine.*

has been taken to the oath imposed on the Boers
I'rofessor Despagri treats it as an " oath of fidt-1

.ui oath of allegiance which, as he points out, cannot
"rly be imposed by a mere occupant 4 Dr. Baty, on the
Lin-! rn- 10 service whatever, t in-

habitants are bound to remain <(m< t without the necessity of
any oath."* I, too, venture to lift up my voice against the
practice of requiring such an oath, but for reasons other than
those I have just mentioned. I think, indeed, that the oath is
inn. <'! >us and even useful, if it is administered only in territory
-. num. 1\ ..-.Mi|,ied, and if it is regarded as possessing
lily and binding force only for the period of occupn
What thr cm/, n undertakes in the oath is no more than is his
duty in any case, so long as the occupation lasts, and the
necessity for making a sworn statement brings home to him the
nature of his obligations to the occupying belligerent But if
an oath or solemn declaration <>t this kind is used at all, there
is a danger of its use being unduly ext i y come easily

to be administered to persons not residing within a sphere of
occupation and to be considered as continuing to bind those
who have tak. n it or signed it, after occupation has ceased.
Any attempt to make the moral sanction of an oath supply thr
deficiencies of an occupant's material power to substitute, as it
were, the restri< e of the inhabitants conscience for

that of an effective garrison is as much to be deprecated as
the abandoned German system of occupying districts M theoreti-
cally." It seems to me, therefore, that the next Hague

pert rWo/.r, to Jforfu/ Law (OL 961), pp. 161-4.

//. (QL 981). p. 165. * Ibid, pp. 166, IT*, 174, ITS.
4 l>c*pagMt, op. fit., pp. 215-4.

T. lUty. Inlfrmttwaat Lam m Soutl 4/rvo, p. 91.

374 WAR RIGHTS ON LAND CHAP.

Conference would do well to prohibit, or at least to sanction only
within strict limits, the practice of administering an oath of
neutrality. That Article XLV is interpreted by at least one
great nation as not forbidding such an oath is evident IV.. m
Professor Holland's note to the article in the British official
manual. 1

The Article XLVI secures for the citizen of an occupied territory

CkSEtaol immunity from material or moral damage at the hands of the
u ir Uw. enemy. It is the bond which war law gives him for the
security of his person, property, and religious belief Perhaps
some day in the dim future it will be quoted by those who un-
interested in the constitutional law of nations as lovingly and
proudly as we quote Magna Charta, with its ringing promise
" We will not go against any man, we will not send against
any man, save by legal judgment of his peers and the law of
the land." To-day, indeed, the Article is "dead from the
waist down." So was Magna Charta at first ; it was many a
weary year before princes and their councillors could be forced
to perform what they had promised therein. So, to-day, the
provisions of Article XLVI are rather an ideal, a theoretical
standard of conduct, than an actual living rule to which the
practice of war conforms. Reading the Article, and remember-
ing what does actually happen in war, one is inclined to doubt
the utility of a provision which seems to have such little
practical effect. Yet, most assuredly, it is a valuable provision.
It is valuable to-day and it will be more valuable still in the
hands of those who " have got to keep the ferment of the future
It* limita- astir," to use Ibsen's striking phrase. There is yeast in it, as
tions. there was in Magna Charta. One is disheartened when one
thinks of requisitions, of contributions, of fines, of reprisals, of
houses levelled as a measure of tactics, of a whole town
emptied as a military precaution (as Sherman emptied Atlanta
and Burrows' brigade emptied Kandahar in 1880), of wide
provinces cleared of their habitations and crops, of a thousand
instances in which the provisions of Article XLVI have con-
spicuously not been adhered to, in later-day wars. If an
invader had to comply strictly with its terms, that, of itself,
would bring his invasion to an end An invader must, and

1 Holland, Lawt and Customs of War, p. 35.

xi MILITARY AUTI I' >K 375

doe*, VOH and property of citixenn in very

many ways; oven th .un worvhip and the tan

i ipels are not secure from the encroach-
menu of that graedy-mawed aggressor, the necessity of war.
Qeneral de Voigte-Rheto stated at Brussels thai commanders
could not mimnder their war right to quarter troops in a

'.I'liMtion tho property of ecclesiastical estab!

and there are many instances in rocent wars of

churches being turned into hospitals. Tho fact is that thi*

I . V I must he road subject to military necessities.

One might add such a proviso to nearly every Article, as Baron

Jomini pointed out at tho Conference of 1874,* but after none

is the proviso so necessary as after this. So read, the Article

'is certain violent acts unless they are demanded by the

necessity of overcoming the armed forces of the enemy. Such

acts must not be done as a substantive measure of war they

must not be made an end in themselves, but only a means to

h- 1 -ultimate end of war, that in, the destruction of tho other

belligerent's fighting force. To destroy property or imprison

peaceable inhabitants in order to bring pressure to bear on

them and to induce them to use th.-n- intlu.-noe to force t!

legal government to submit, is absolutely contrary to Article

X L VI. Instances are not wanting in which belligerents have

tried to apply such illegal pressure, but every such attempt

has been condemned by the more enlightened minds of the

There is no doubt that, with all its limitations, the

le constitutes a very valuable check upon the power of tho

sword. But one must boar the feet in mind that there are

is to its range and authority and very important

limitations too.

The word " religion " in the Rtgbment covers all beliefe.' " IUU-
Th.- freedom of worship secured by this article is obviously ^
liable to restriction if it be used for the purpose of seditious
propaganda or the encouragement of opposition to the
occupant's government No commander can permit the
preaching of a Jeddah against him or the celebration of such
motional, pun-patriotic worship as drives the people to "go
t.mt.', -."

1 BruMdaB.Rp.2tt. Ibid. p. 948. Md. p.

376 WAR RIGHTS ON LAND CHAP.

Confwca- The rule that " private property cannot be confiscated " is
^ subject to some exceptions. One I have already alluded to
proprt N it ls the case of confiscation by way of penalty ami lurt her excep-
tions will be met with in the next chapter in the tactful disguise
of requisitions and contributions Another exceptional case arose
during the South African War; it is hardly likely to form a
precedent but it is not the less worth examining, for it illustrates
Confisc*- 80me iroportent principles of war law. On the 8th August,
don of 1901, Lord Kitchener issued a Proclamation in which he
f*nn in announced that all prominent burghers of the two Republics
1901. should, unless they surrendered by the 15th September follow-
ing, be banished for ever from South Africa, and that the cosi
of maintaining the families of such burghers should be rer*
able from their property, whether landed or movable. 1 Tha
threat of perpetual banishment has been condemned as "a
flagrant violation of the laws of war, which prescribe that
prisoners are to be liberated and repatriated after the conclu-
sion of peace, with the least possible delay." 1 As, however,
the threat was never put into execution, the question is of no
great importance. But the other matter dealt with in the
Proclamation is one of considerable practical interest. The
maintenance of the Boer families in the Concentration Camps
was a very heavy expense to the British taxpayer, whose
pockets had already been drained by nearly two years of what,
seemed to him a quite unnecessary and hopeless struggle
against the irresistible might of Great Britain. The British
view a very natural one to a mind not skilled in the niceties
of war law was that the Boer Commandants, veld-cornets, and
leaders, who were responsible for ; the prolongation of the war,
were properly chargeable with the expense involved in the
maintenance of their wives, sisters, old people, and children, in
the Concentration Camps. They were the natural protectors
of these persons and if they chose to leave them to the enemy
to feed and lodge while they themselves went gadding on
commando, they were bound at least to help to pay the piper.
Accordingly, hardly a voice was raised in England when the
decree of confiscation was issued ; the few who, like Sir William

Time* History, VoL V, p. 322 ; De Wet, Three Year* War, pp. 306-8.
9 Despagnet, op. cti. p. 348.

xi MII.I1 \RY AUTHORII V 377

Halt-' tooted against it, were assumed to be influenced by

part> 1 January, 1903, over 50,000 acres were

honor's Proclamation, the charge against the
m being calculated on the basis of recovering the cost
of rations of their families and a proportionate am"

he whole expenditure of the Concentration Camp* 1 The Thekgui
confiscation was, therefor, m the nature of a distraint

-* considered to be due in respect of services rendered,
but that it was also in part a punitive measure is shown by its JUT
being confined to the property of the leaders, for the same services
were rendered to the families of the rank and file of the Boer
forces. In so far as it was juminv.' it must be pointed out
that the Boer commanders were guilty of no broach of war law
in continuing to resist while, in their ..pinion, any hope of
success was left ; and to confiscate \ operty because they

did so was not within the terms of Artie 1- \1.\1. \Vh-
the confiscation can be justified on the other grounds depends
her the existence of a ?ua*t -contract can be proved
making the commandants, etc., liable to the British Government
tor the maintenance of their families. Now the consideration
that the scheme of concentration was in the best interests of
the families themselves and that this was acknowledged by
some of the Boer leaders at the end of the war, does not annul
ih- truth <f this, that what made concentration necessary at
all was the policy which was adopted by the British as a means of
IP ling the war. Granted that it was impossible to leave the
families to starve in the midst of their ruined homes and desolated
mealie-fields, devastation, concentration, expenses of mainten-
ance, followed each other in natural sequence, and, as the Boer
leaders were not consenting parties to the original act out of
. the assumed ymwi-contract logically sprang, neither can
they, so far as I can see, be regarded as having made them-
selves liable for the costs which the support of their families
entailed on the British.

This case, like that referred to in pages 881-2 $*pra, \
cannot help thinking, only to be explained in one way
namely, that the British authorities regarded the formal
iy /fcfaftt, 8oa* 1808, Vol. I, p. 1486 ; Vol. II, p. 907.

378 WAR RIGHTS ON LAND CHAP.

annexations of the year before, together with Great Britain's
old claim to suzerainty over the Transvaal (which was supposed
in some way to affect its ally, the Free State, as well) as
giving the Boer forces an abnormal status and warranting the
application to them of a treatment not reconcilable with the
strict rule of International Law. 1

Pillage. I have already spoken of the war rights respecting loot and
pillage, and need not say more here. 2

Taxes. The words " imposed for the benefit of the State " in Article

XLVTII are intended to exclude provincial and parochial
taxes, or " rates " as they are called in England. 8 The latter
the occupant must not intercept ; he can only supervise the
expenditure of such revenue, to see that it is not devoted to
a hostile purpose. 4 The first charge upon the State revenue
collected by the occupant is the cost of the local administration.
When this has been provided for, any surplus that remains
(and a surplus is probable, since the assessment is likely to ha\<>
included a proportionate charge for the cost of the central
government, and during the occupation "establishment
charges " are saved) may be devoted to the purposes of the
occupant. In 1898, President McKinley issued instructions to
General Shafter after the fall of Santiago to collect the
existing taxes " unless others are substituted for them " and
to apply the proceeds " to the expenses of the government and
of the army." 6 If, as happened when the Japanese occupied
Korea in 1904, the occupant leaves the existing civil administra-
tion in power, the latter should be allowed to collect and
expend the revenues. 6 The position of Korea was an
anomalous one and is hardly likely to have a counterpart
in future civilised wars, but it is instructive to note Japan's
admission that taxation and administration are interdependent.
NewUxee No new taxes should be imposed by the occupant, for the
imposition of taxation is, in modern times, an attribute of
sovereignty. 7 This rule was broken by the Turks in 1898 in

1 Bee Despagnet, op. cti. p. 349.

V. pp. 188-200, supra. Brussels B.B. p. 291.

4 Manuel a CUsagc des Officers, p. 102.

R.D.L September-October, 1898, p. 805.

6 Ariga, op. fit. p. 56.

7 Bonfila, op. cti. sec. 1189 ; Manuel it V Usage, tic. p. 103.

xi MILITARY AUTHORITY 379

hey established the Turkish taxes on sheep, salt, and
tobacco, and organised the custom* on Turkish lines. 1 B>

iccupant cannot create taxes, he may levy requisitions and
contributions, which serve the same end. Some of the

*els delegates wished to give him the right to place the
occupied country on the same footing, as regards taxation, as
his own country or as the remainder of the enemy's country
which is not occupied ; on the ground that the occupied part
ought not to be better treated than the unoccupied, or than

occupant's country. The result of this would be that
the Government of the invaded country demanded great
sacrifices from its people in the shape of additional taxes, the
invader would have the right to raise the taxation of the
occupied district to the same level" It appears to have been
ih. M|iim<>n of the Conference that no such right could be
attributed to an occupant ; at all events, the Article approved
by the Conference is practically the same as Article XLVIII
Hague, 1

i.-iy happen that all the revenue and customs officials of The
the old government have fled on the approach of the in va
or that they refuse to serve him. In such a case, he is justi-
fied in making such alterations in the mode of recovery of the kTIL
taxes and dues as will enable him to raise the same revenue as
he could have raised had he had an expert collecting staff at
his disposal In 1870-1 the Germans replaced the indirect
taxes in the occupied districts of France by direct taxes,
assessing the latter at 150 per cent of the old direct taxes. 1
The practice they adopted is mentioned with approval in the

ich Official Maniul, which points out how impossible it is
for an invader to secure the proceeds of registration, of stamp

<*, and of other taxation of a complicated nature, if he is
without the assistance of * personnel familiar with the work. 4

By providing that the occupant is to mJnbM> the old rules
as to assessment and incidence, Article XLVIII forbids him.
by implication, to raise taxes before they become due,* But

1 K.D.I. September-October. 1897, p. 710.

* RR p. 161. Boofib, op. c*. me. 1189.

Af&Vt,efe. p. 104.

iBJfcftttfc

380 WAR RIGHTS ON LAND CH.

Neither to this obligation there is attached a corresponding ri^hi. in
virtue of the same provision. If he must not levy taxes
most prematurely, neither must the legal government; and if ih.-
' ** latter has called in the taxes before they were du-, thru th<
occupant is not bound to recognise the validity of tin-
quittance. The payment made should in such a case be
considered as a patriotic war contribution given 1>\ th<
inhabitants to their national government and not as normal
taxation. The ordinary taxes ivm.-un due and may be
demanded by the occupant at the proper time. 1

1 Brussels B.B. p. 244.

UlAITKi: Ml

Mli.n \i:\ \ V OVER THE TERRITORY Of THE HOSTILE

KTATE

II Kf(fHifititmx t Contributum*. finit, and thf Treatmen

Property.
Conventional Law of War. Hague I&glrmmt I.I\

toLM.

ARTICLE XLIX.

If, in addition to the taxes mentioned in the above Article,
the occupant levies other money contributions in the
occupied territory, this shall only be for the needs of the
army or of the administration of the territory in question.

ARTICLE L

No general penalty, pecuniary or otherwise, shall be
inflicted upon the population on account of the acts of
individuals for which they cannot be regarded as jointly and
severally responsible.

ARTICLE LI.

No contribution shall be collected except under a written
order, and on the responsibility of a Commander-in-Chief.

The collection of the said contribution shall only be effected
aa far as possible in accordance with the rules of assessment
and incidence of the taxes in force.

For every contribution a receipt shall be given to the
contributors.

ARTICLE LII.

Requisitions in kind and services shall not be demanded
from municipalities or inhabitants except for the needs of
the army of occupation. They shall be in proportion to the
resources of the country, and of such a nature as not to
ivolve the inhabitants in the obligation of taking part in

itary operations against their own country.
Such requisitions and services shall only be demanded on
authority of the commander in the locality occupied.

382 WAR RIGHTS ON LAND CHAP.

Contributions in kind shall as far as possible be paid for in
cash ; if not a receipt shall be given, and the payment of the
amount due shall be made as soon as possible.

ARTICLE LIII.

An army of occupation can only take possession of cash,
funds, and realisable securities which are strictly the
property of the State, depots of arms, means of transport,
stores and supplies, and, generally, all movable property
belonging to the State which may be used for military
operations.

All appliances, whether on land, at sea, or in the air,
adapted for the transmission of news, or for the transport of
persons or things, exclusive of cases governed by naval law,
depots of arms, and, generally, all kinds of ammunition of
war may be seized even if they belong to private individuals,
but must be restored and compensation fixed when peace is
made.

ARTICLE LIV.

Submarine cables connecting an occupied territory with a
neutral territory shall not be seized or destroyed except in
the case of absolute necessity. They must likewise be
restored, and compensation fixed when peace is made.

ARTICLE LV.

The occupying State shall be regarded only as administra-
tor and usufructuary of public buildings, real estate, forests,
and agricultural estates belonging to the hostile State and
situated in the occupied country. It must safeguard the
capital of these properties, and administer them in accord-
ance with the rules of usufruct.

ARTICLE LVI.

The property of municipalities, that of institutions
dedicated to religion, charity, and education, the arts and
sciences, even when State property, shall be treated as
private property.

All seizure of, destruction or wilful damage done to
institutions of this character, historic monuments, works of
art and science is forbidden, and should be made the subject
of legal proceedings.

Cootribu- Usually, as I have said, the taxes of the old Government
lions of OU ght to be sufficient to meet the expenses of the administra-
tion of the occupied territory. But it may happen otherwise,
and then the occupant is entitled to procure the necessary
additional funds by means of Contributions of War " extra-
ordinary contributions," as opposed to ordinary taxation, to use

xi. MILITARY AUTHORITY 383

the tvriu applit*! to tht-m in lh<* K-|*.ri of the xaininin^
Committee of the fiwt Hague Conference. 1 The occupant hat
iior the war right, founded on wage for the Rijlmmt
confers no righU on an occupant, it only restricts and regulates
those \\hirh custom gives him of providing for the needs of
bin army by levying contribution* from the inhabitant* of the
occupied territory. "The needs of hi* army" these words
ate the aole legitimate object, as well as the quantitative
limit. <>t th, 1, -\ \. It ia unlawful for the occupant to seek, by
i a method, to replenish his national treasury ; any contribu-
tions imposed must be impoaed to supply the wants of the occupy-
ing army. Of course there will result therefrom a saving to the
occupying belligerent's exchequer, which is thus relieved of the
cost of maintenance of the army of occupation. But so long as
not more than the cost of such wyMntewMW may be exacted
from the occupied territory, the extent of the contributions is
kept within bounds, and as the occupying belligerent cannot be
certain that he will not eventually be forced, by the fortune of
war, to pay his opponent a war indemnity in which the con-
tributions will be taken into account, he is usually led by self-
nt to keep the amount of his exactions well within the
regulated limit* But even with the restraints referred to,
the war rights as to contributions and requisitions strike one
as being peculiarly unjust and wanting in that spirit of
sympathetic concern for national feeling which informs the
modern usages of war so largely. It seems cruel to allow an
occupant to make the enemy's nationals contribute to the
upkeep of the army which in fighting against their own. The
fact is that in this matter, as in many others, there must be a
certain amount of compromise, of " give and take," between the
interests of occupying armies and those of populations. It was
not until quite recent years that the lattec's interests were
considered at all It is too soon, yet, to expect to see the
tradition of years wiped out and forgotten. Both requisi-
te and contributions are, in a way, a relic of the vested
its which an invader once possessed to the money, goods,
and labour of the people he had temporarily conquered. They
date from the time when war supported war. To-day, their

1 SaeiUfuelR&p. 149.

384 WAR RIGHTS ON LAND CHAP.

Kiui>i i. .a mint ions are beginning to \x- iiii<li-riniiir<l. The lust

1 1 riii Atwl

Hague Conference, in making the requisitioning belligerent
res P on8ioJe for parent, has struck a blow at the right of
requisitioning the extreme right recognised by tin- jurists
\\hirh may change its whole natnn , and complete a process
which had already begun, of replacing requisitioning by the
system of amicable purchase or at least by a right of pre-
emption. Contributions, too, have become a rock of offence to
many great authorities ; jurists have raised their voices against
this war right on the score of its injustice; the official manual
of Germany, the nation which has always claimed the most
elastic prerogatives in the matter of levying contributions, has
had to fall into line with modern opinion in declaring illegal
certain forms of contributions which till yesterday were
regarded in Germany at least as being almost as firmly-
established and respectable as marriage or monometallism.
The process is still far from complete. As war law stands
to-day, contributions and requisitions remain as approved
methods by which an invader can procure from the enomyV
citizens such funds, goods, or services as his army needs
subject, in the case of requisitions, to his paying thi-i t-r
either at the time or subsequently. I shall try to show the
considerations which have been held to justify such valuable
privileges being attached to occupation.

Contribu- It may at once be said that the reason and the justification for
requisi- ^ ne privileges * n question are simply the necessity of war.
tion rent One may say, if one likes, that with the establishment of a
necessity state of occupation there comes into being what is practically a
of war. communistic government, having for its end the good of i In-
invading army. That army seems almost to adopt, with a
slight alteration, the Platonic formula as to the goods of friends,
and to proclaim a community of goods with the important
proviso that the goods are the enemy's. An armed, somewhat
desperate, because hungry and battle-worn, company of feeding
and fighting animals finds itself in the midst of plenty, which
the " strong man armed " who once guarded it has abandoned
to the foe. Given the elemental, primitive facts of humanity, is
this company likely to be deterred by a paper law from helping
itself? However, the provision of Article XLVI of the

xii MILITARY AUTHOUIM 385

may be respected by an arrm *\i\>-\\ i* w. II fed and
equipped, it is hk.-lv t<> Hpeak with small persuasion to one
is starving, exposed to iho element*, too weary with
marching an- th ink of academic rules, Therefore

the army a veritable " number and born to *?mflmt fr .

k in ; ..... i a u. a j d i ,p HM

peoj. nil carrier*, labourers, and artisans for its service.

It \\..uld be almost a company of angels if it did otherwise.

An urniN inn ho first and greatest neoessit

war, and Article XLV1. of all the article* of the JUgUment,

be read subject to that necessity. As readers of Bent ham

th. st;u ^ ing wretch who robs the rich, abdominal baker

of a loaf i> punished, not because of the loss to the

that in nothing, compared with th.- thief s

because of tin- ill effect which allowing a theft to go unpunished

1 have on the general sc T-< -him-ally. he is

punished for a urd order " ; the "evil ..! th. first

" (that suffered by the baker) which is involved is

i it war. the part of the starving man i* enacted by

I iich has no such concern for the
is and connections, or the public security, an the
|)hil>,,|hic judge of peace-time, alive to the various " categories
of evils," is at liberty to feel. The army the judge in its own
cause condones the th. ft in \i. w ,.( ita necessities. It steals
because otherwise it would starve, and that is really about all
that can be said of the mat

But the war rights of requisitions and contributions are Any *nojr

i availed of by armies which are in no such dire straits. STiLpH-

irmies of rich nations have not scrupled to take advantage J^J^ *

of the prerogatives of occupation. Sometimes, of course, it

may h.ij.j.. n that an army which is ordinarily well-supplied {j

i its own commissariat and quartermasters' stores, finds mr

itself forced to resort to requisitions and contributions owing

to a temporary failure in the machinery of its supply or

transport departments, or simply because it has outstripped its

slowly moving trains. Such a splendidly-equipped body as

the South African Field Force was on short rations for a while

in March, 1900, owing to Do Wet's capture of it*

train (whit h it had lea behind in the chase after Cronje) at

c c

386 WAR RIGHTS ON LAND CHAP.

Watcrval. 1 Celerity of movement is so important at times that.
'''"'1'^. an irmj ha- t.. ahaml..n i! .. ,i, m.lto trust In rmdin^sul)-
of more- sistence tVm tli country it traverses. One remembers count-
less instances in the Secession War in which n>nmi;m<l rut
adrift" from their supply trains to carry out some np.-ratinM
which needed despatch before everything. When Corinth
tell in May. L868, Balled NBi I><>M Carlos Buell to sri/
Chattanooga, but "marching slowly to that objiMtiv., partly
Ix-caiiM- h- rarrir.l his supplies with him, h- \\;is mil ^tripped
by Bragg, who lived off the country." 5 Grant's campaign in
the rear of Vicksburg showed that it was possible to move
and subsist a considerable force without taking thought tot
commissariat wagons. "Our army," he said, "lived twenty
days with the issue of only five days' rations by the commissary." a
"The road to glory," said Ewell, the Confederate leader,
" cannot be followed with much baggage," and time and again
in the Civil War great marches were made and great exploits
performed by armies whose whole baggage was strapped t<>
the pommels and cantles of the cavalrymen's saddles or strapped
to the infantrymen's backs. The men who marched with
Jackson to fight Grove ton and the second Manassas had no
rations save such manna-like, improvised ones as green corn,
turnips, and apples. 4 The same celerity of movement \\as
secured by the same methods in the Franco-German War.
The Prussian columns troubled themselves with no impedinwnia
save such as carried munitions of war ; for food, forage, and
transportation they requisitioned on the rich country through
which they passed. It was this system of utilising the
resources of the country, says Sheridan, who was present, that
made their wonderful celerity of movement possible. 6 Gourko's
and Skobelev's Turkish campaigns of 1877-8 are further
instances in point. Gourko's men lived on the country from
15th December to 25th January, only drawing their bread
from the depdt beyond the Danube at Sistova. Skobelev even
dispensed with bread rations by the expedient of " organising

1 Tim* History, Vol. Ill, p. 396. * Draper, op. cU. Vol. Ill, p. 60.

* Grant, Memoir*, p. 258 ; Wood and Edmonds, op. cit. p. 272.
4 Fitzhugh Lee's Let, p. 186.

* Sheridan, Memoir*, Vol. II, pp. 420-1, 447-8.

xii MII.II \UY ALTIH 387

liuk.-n .in -\'i\ '.ill. i-.- aloiiK i|j, In,. - ,,| ni.-ir.-h iiiul ni:ii.ii,.'

th. |easants bake soft bread enough to last for a day or i
at a time." " By the celerity and boldness of their movement*
war wan indeed made to support war." 1 Until orga

i nothing in the way of a powerfully

concentrated emergency ration Mine evolutionised kind of
pemmican and cocoa-paste-- by which men will be abl>

imi work ha seeks on the content* of a few mall

tubes, carried on the person, or in ?! -f a nrto, there

will always be occasions in which an army must resort to
requisitioning because voment it allows.

Contributions have this point in th.-ir favour, as compared
with requisitions they throw the burden more evenly and
equitably over the whole town or district. At the Brussels Jj^

: t he delegates expressed a wish to have the vUy
levying of contributions prohibited altogether. To this
proposal the German military delegate, General de Voigts-
Rheu. replied by giving the following example of what may
happen in war:

An army arrives at a rich town, and demands a certain number

of oxen for its subsistence. The town replies that it ha none.

The army would in tliat case be compelled to apply to village*,

which are frequently poor, where it would setae what it U in want

This would be a flagrant injustice. The poor would pay for

the rich. There is, therefore, no other expedient but to admit an

equivalent in caah. This is likewise the mode which the in-

habitants prefer. Moreover, it cannot be admitted that a town

i is unable to pay in kind shall be exempted from paying in

the losses due to the occupant's demands are inevitable-,
then the system of contributions plays a useful part in " dis-
sipating " them or spreading them over a larger area of impact
it plays the same part as the insurance company La
SocUU rfyaratrict (U C Invasion which was formed at Rouen in
>. to guarantee subscribers against such evils of war as
"requisitions, pillage, and incendiarism," was meant to play.
That company collapsed when Rouen was occupied by the

1 F. V. Cm* (U.8.A. Kngtnwn). Tkt JhuM Army *d iu
m 7'nrfejfMi I877-*. |-
P in

c c 2

388 WAR RIGHTS ON LAND CHAP.

German troops an extreme eventuality with which, perhaps, t h<
promoters had not reckoned. The premiums paid by thr nn ml., is
were, in a way, contributions of war, except that they covered
rather more than the normal mntnlnition is meant to c>\n, m
that they provided for war damages as \\vll as requisitions. ( )n.
may find in the incident an interesting proof of the preference
of inhabitants thcm^. l\ s for some form of contribution rather
than the unequal system of requisition which prevailed in the
German armies. 1 History is so full of instances of enormous
exactions made under the head of contributions that one li
tates to differ from M. Bonfils, Professor Acollas, and other
writers, who condemn them on all counts and would have none
of them. 2 Yet, so far as my view goes, they are n<> more
objectionable than requisitions (at any rate than the old kind
of requisitions) and taxation levied by an occupant, if they
are resorted to only in replacement of the former, or \
supplement the latter for the necessary raising of revenue for
administration, as laid down in the R&glement. The Brussels
prototype of Article XLIX provided for the occupant's demands
being limited to "the necessities of war." This, says tin
Committee's report, was a little vague it might have been held
to justify the systematic crushing of a country by contribu-
tions. 3 The present article forbids an occupant to levy
contributions except for two quite definitely expressed purposes
(neglecting, for the present, the case of fines). It denies him the
right which has been sometimes claimed for him, of indemni-
fying himself for the cost and expense of the war by imposing
contributions on the occupied provinces. He must no longer
" count his chickens " in this way ; he must wait until the
conclusion of the war shall have made it certain whether he, or
his enemy, is marked out by the ordeal of battle as the party
at fault and as, consequently, responsible to the other for tin-
expenses of the war. For that is really what a war indemnity
comes to. Nor is the Hague pronouncement less destructive
of the position taken by M. Loening and adopted by the

1 Hozier, Franco- Prussian War, Vol. II, p. 211; Sutherland Kdu
Qerman* in France, p. 286.

3 Bonfils, op. cit. sec. 1224-1226; Lawrence, International Law, p. 377;
I'illet, op. cit. p. 223.

' Hague I B.B. p. 149.

xii MILITARY AUTHORITY 389

German* in 1870, that contributions may be used as a method
lucing a stubborn enemy to submit. The contribution of

ive franc* per head levied by the German* in the oocu-

vinces was intended t" turn the French citizen* against
Gambetta and his policy of war tl otUrnntx. As M. Boon* Is say*,

11 allowable to drive inhabitant* to desire peace by

maki | tillage, bum urea,

mm That (as I have said) the German official

mm<l lui* now come to regard as illegitimate a great many

of the kinds of contribution* which the Prussian and German

armies levied in 1866 and in 1870-1 is evident from a passage

lie Kriegtbravck im Landkricge which expressly denies the

vlity of contributions raised by the occupant for the purpose

.\i\-j himself or recovering the cost of the war, at the
expense of individual*, and authorises money levies of three
kinds 'inly, viz. those imposed

luce of Uxe*,

in place of requisitions in kind ;
) by way of penalty.*

With th< thini --la** of contribution referred to here I shall
deal presently; the other two it will be seen, conform with the
Hague p i .-o\ r that Germany

has abandoned her traditional position \\ith regard to
contributions. However one may argue round the matter,
t hTi i* no doubt that in past wars she employed the system
(as Mr. Sutherland Edward*, no oncin many, states) M to

crush the occupied portion of the country and make it*
inhabitant* long for peace." The inevitable misfortune* which
war brings in it* train the cessation of employment, the
dislocation of .trade, the distress, suffering, starvation are
bad enough without having this unnecessary cruelty added to
them. 1

ill be very interesting to see what effect the addition
made t \ MI at the last Hague Conference has upon

th< practice of levying contribution* and requistions in futuiv
war*. That makes the belligerent who levies requisi-

reepon*il>l< for jKiymont being made either on the spot or g^ff"**

1 HonfiU, op.rii.99c. )*& p. 61 Otrmmmt m /Vmet, p. 61.

390 WAR RIGHTS ON LAND CHAP.

" as soon as possible." At first sight, the effect of this pro-
\ i-ion would seem likely to be that contributions would rcj>l;i. .
requisitions almost entirely; for as the occupant must m. , t \\\^
requisition receipts, at some time, in cash, his best p<li< \
would appear to be to raise frnm lh. districts he has occupied
the money to pay for whatever goods or services he ivi|uiiv>
and so avoid opening his national purse-strings. Indeed,
Baron Jomini raised this very objection to Baron Laiiilx-r-
i Hunt's proposal at Brussels that requisitions should be paid
for either on the spot or subsequently, that " the inevitable end
would be that the war contributions of the conquered would be
increased." l It is noticeable that in the last edition of the
British Field Service Regulations (Part II, Organisation and
Administration, 1909), a new provision as to levying contribu-
tions appears, which is at variance with British practice in all
wars since the American War of Revolution. The provision I
refer to authorises commanders to raise contributions, " in
order to distribute the burden of levying supplies more ev< -
over the population," for " otherwise it is only the inhabitants
immediately on or near the line of march who feel it." "By
levying contributions," the paragraph [37, (2)] goes on, " in
large towns, which are principal administrative centres oi
districts, and expending the sums so obtained in the purchase
of supplies in outlying districts, the latter may be mad< t.
bear their share as well." As I shall show just now, Great
Britain has abstained from raising contributions in her r < m
wars; does the paragraph I have quoted indicate that her
policy in this respect is to be reversed, and is it a mere coinci-
dence that the reversal of policy (if such it be) follows so
closely upon the Hague amendment of 1907 ? It may, o:
course, happen that the words " as soon as possible," in the
Reglement will be interpreted loosely and that, as in the past,
the charges for requisition notes will be met by the defeated
Unlikely belligerent, either as part of or in addition to the war
tbt any indemnity. Personally, I think no great change will result
practical from the new provision. Whatever rights an occupant has had
^ h .^ c in theory, there has been a steady tendency since 1871
result. substitute purchase for requisitioning in the sense of obtain

1 BrusseU B.B. p. 276.

xi. MILITARY AUTHORITY 391

ing supplies or services in return for * receipt to be honoured
he war by the defeated party, not neces-
sarily by the giver and to do away with contributions
ther except as a punitive measun* Thin tendency
will be strengthened by the Hague addition, and a practice
\lii-h has become all but universal will in futim- be entirely

I shall try to trace the stages through whii-h

practice has passed, and to show how the methods of the great

wan l A 1866, and 1H70-1, have been replaced by

others which are at once milder and more business like and

1 ho bed-rock of the matter is that an army, operating in a lti
hostile >r even garrisoning an occupied country, very

y rinds it possible to subsist without utilising the resources
..t that country. a No army/' said the German delegate
Brussels, " can subsist during the campaign on the resources of
its own magazine*." And it is wise, even when it is not absolutely
necessary, to utilise a country's resources. If a commander can
obtain II-..JM the country he is operating in such bulky supplies
as corn, fresh meat, vegetables, hay, ho reliev.
perhaps over a lengthy line of communications, to a very con-
siderable degree. It is cheaper, too, usually, to purchase
locally, and better for the health of the troops. Campaigning
fare is proverbially hard and scant Soldiers grumble at army
us " desecrated vegetables and consecrated milk."
Sherman's soldiers called the tinned supplies; "dog-biscuits
and iron-filinV was Private Mulvoncy s description of the
-h Imiian Service ration. In the last resort, when all has
1, men will eat anything and joke about it, Mark Tapley
lik. . the men who stood the siege of Paris even proposed to
eat the Ministers " in a spirit of love "as soon as the
!! puppy and so/mt of rats were all exhausted; the
him he Ladysmith soldiers survived a diet of stringy,

unts, and came up smiling to boast of having " eaten three
cavalry regiments." But though men fight grimly, im erfrvstu,
h< poorest lare, it is unquestionably true that, as a great
-nee said, an army moves and fights on its belly, and
tha hings being equal, the better-fed army will always

overmatch a rival leas fortunate in this respect It is a

392 WAR RIGHTS ON LAND CHAP.

question of moral; there is a close connection between tin-

it "t an army and the state of its biliary glands. It is
sound policy, for a good many reasons, even when it is n ..i
absolutely necessary, for a commander to utilise the re&< >
of the theatre of operations.

Thcsys- If, then, supplies must be obtained locally, the <pi.sti..ii

n*|ui- a rises, how best to secure them speedily and in abundance.

'8 , One school the school of the sword, one might call it would

IMIH* 1 11(1

simple say " Requisition with all your might and leave the inhabi-
"liiit'v'for ^ An ^ s * & 1 an ^ bear it"; or else, " Requisition and giv< th

nt inhabitants receipts which will be met by the defeated
JjjJjJ.. belligerent." This school put its principles into practin in
>'>'. s.ime great wars the last being the Franco-German, in which,
iMoMn. it may be said, the practice received its death-blow. Gratuit < >us
requisitioning was tried on a large scale in the American Civil
The prac- War. Sherman's orders for the march to the sea, issued on
Secession 9th November, 1864, instructed the army to " forage liberally
on the country during the march " ; brigade commanders were
directed to send out foraging parties, under an officer, to
collect forage, meat, vegetables, corn-meal, or "whatever is
needed for the command." " In all foraging, of whatever kind.
the order concludes, "the parties engaged will refrain i'mm
abusive or threatening language, and may, when the officer in
command thinks proper, give written certificates of the 1
but no receipts; and they will endeavour to leave with each
family a reasonable portion for their maintenance." l Sherman's
orders were approved by the Washington War Department. 2
The orders whioh Hunter received from Grant, and which he
handed over to his successor, Sheridan, relative to the opera-
tions in the Shenandoah Valley, concluded in these words :

Make your own arrangements for supplies of all kinds, giving
regular vouchers for such as may be taken from loyal citizens [i.e.,
Union sympathisers only] in the country through which you
march. 8

The Secessionist commanders adopted a different line in their

1 Sherman, Mrmoirs, Vol. II, pp. 174-6 ; Draper, op. cit. Vol. Ill, pp.
:: 1 M 20 ; Bowman and Irwin, Sherman and hie Campaign*, pp. 265-7. See an
interesting paper by Daniel Oakey in " /tattle* and Leaders" Century
Magazine, Vol. 34, p. 919 ff.

J Sherman, Memoir*, Vol. II, pp. 128-9. ' Ibid. p. 465.

xii MILITARY AUTHORITY 393

northern raid* of 1862 and 1863. They paid for everyth
require* 1 it cah or in Confederate notes then

miK-h i preciaUxl but il. ir Action was based on policy
>iM|Mxi to win over the people of Maryland and Pennsylvania

- -.inlu-rii cause. 1 In the later r y shaved them-
selves nun -h \om careful to conciliate the inhabitant* and levied
requisitions and eontnlmti..!!* th- practices of gratuitous
requi raining money contributions have initially
gone hand in hand with the irresponsible freedom which the

t u*a-. ..i \\ar allow. <l. .lubal Early 1 uimbewburg
because it reftwed to compK * ith a denuu.

In the Seven Weeks' War, con trihut ions and rcxjuwitionji TW pr^>
were levied very freely b\ uMuan army. The town

Frankfort was called up -n to pay 600,000, and after
sum had been handed over, an additional 2,000,000 was
demanded but subsequently remitted by the King of Prussia,
to whom the town sent a ng to be relieved of

hi- enormous imposition. About two millions of rations were
also exacted from th- town.* In other towns, too, even the
German Professor Blum- Mi has to confess, "the Prussians
imiaed contrilMitions m HK-M. \ without adequate reason." 4 The
supply system which the Prussians followed in this war is thus
described by Hozi< r. <Th. magazines " he refers to are those
which were established in places where the provision wagons
and forage carts could conveniently reach them. )

These magarines were constantly replenished both by food and
forage brought by railway from the interior of Prussia, or by
requisitions levied on Saxony and Bohemia of food and forage, for
which the Commissariat paid by cheques which the fortune of
war afterwards allowed to be defrayed from the war contributions
paid by the Austrian and Saxon Government*. Had the fate of
arms been different, of course Saxony and Austria would have
provided that these cheques should be honoured by the Berlin
HBolsMQSf*'

1 As to the Antieum campaign. SM Draper, op. I . p. 43* ; M to

I ','".' v '/'.'. \ \ \ I 1 '

ia*

K. *nfm.. ,. i Hosier, Ami Wmkf rr, p. 311.

4 lUunu, hh. o/i. ril. MC. 664.
HCKMT, AMU H'ecJb* rr. p. 90.

394 WAR RIGHTS ON LAND CHAP.

and of thi Thr (! rin.ni n. -i hods of supply in the war of 1870-1 were a
compromise between the buccaneering system of 1795-6 and
the "ready-money" system of later days. Enormous requisi-
ti>ns were levied, especially when the troops were moving ini..
France. Huge contributions, too, were imposed on the towns.
Orleans had to find a million francs for General von der T.-mn
in October, 1870, as well as 600 cattle, 300,000 cigars, and
billets for the German soldiers. 1 It was Bismarck's policy,
throughout the war, to raise money and supplies as far as
possible by levies upon the French people and thus to
avoid the necessity of asking the Reichstag for fresh funds
to carry on the war. 2 At first the invaders practically lived
upon the country. The 3rd and Meuse armies, advancing to
Paris, got so much bread by requisition that it was found
possible to cancel the regular bread contracts. 3 And not only
were large requisitions in bulk imposed upon the civil
authorities of the French towns and villages, but by the s\
of billeting the French householders were forced to be the
unwilling hosts of their conquerors. The ration in billets was
a generous one, compared at least with the English European
ration (value about Sd. or 9rf., including messing). It consisted
of about IJlb. of bread, over lib. of meat, over Jib. of bacon, a
little coffee, tobacco or cigars, and wine or brandy. The cash
< <|iiivalent was at first 2 francs, but after the Peace this was
reduced to 1} francs. 4 It was found, however, in this war, as it
had been found in the American Civil War, 6 that if requisition-
ing was a good way to supply a moving army, it was not so
when the army halted for any length of time. In October,
1870, the army of the Meuse abandoned requisitioning for
purchase. A Proclamation was issued at Beauvais, inviting the
French farmers to bring in their produce to the German
Intendance, which would buy it from them at prices to be
agreed upon. 8 The 3rd Army, too, while investing Paris, made

1 Hazier, Franco- Pruvdan War, Vol. II, p. 84.

* Busch, Bismarck, Vol. II, p. 280.

German Official HUory, Part II, Vol. Ill, p. 2) _'

itherland Edwards, op. cit. pp. 51, 54; De Martens, op. cit. p. 340;
German Official Hittory, Part II, Vol. Ill, pp. 218-9.

* Porter, Campaigning trith Grant, p. 293.

* Cawell'a History, VoL I, p. 201

xii MILITARY AUTHORITY 39$

fiase the rule And resorted to requisitions only in exceptional

case*. 1 Hut v, n with tho incntutod supply which the system

..! | up. fuming produced, the inventing army had to depend

mainly .-u tho supply trains from Germa; * provision*

and bug* In some Department*, the French profecU forbade

1 1.. ml> il.it nit* to Hell food to the German* on any term*, and

ii the offer of oath payment* usually succeeded in secur-

I- plies were <>n th- m.-n-k* -t. it waa at once

apparent that the investing troops would have to rely very

largely on tho Mupplic-* transported from across the Rhine.*

Everything possible was done to Up the local supply sources.

t was found by experience that " requisitioning wan of but

trifling use in providing for the wants of an army," and that,

whatever prices were offered, the support of over 700,000

intruding guests was too great asti m already exhausted

Throughout the war, therefore, Germany was
main ba>- her army." 9

! >HJI) which were given by the

Germans in 1870-1 were worded as follows : mi

fibs

Payable by the French Government, or by the German

Government, according M shall be agreed between the

y were eventually paid by the French Government.
toget h oompensati xitributions and other war

losse- ly as an act of grace and with .uimimii--

any legal liability. The Germans would not admit the
rition that the amount of the contributions raised
39 million francs ought to be deducted from the war
indemnity of 5 milliards of francs imposed on France by the
Peace Treaty. 5

So far for the pract the school of the sword" One

comes now to the other school " the school of the purse."

u.iMin *>t this school has been "Pay value for what you

want just as you would in |.-.-i.-.- timer and in pursuance of

Gtorauii Ofidal //utory, Pbrt II Y 1 III. p *!*.

* Hoicr, fntmco-Pmmiam M 85 ; drawn OJkW f/^ory.

P*rt II. VoL I. pp. 98-9.

II I p. 243.

4 BoofiU, o|. rtf. c. IJ3. Ibid. we.

396 WAR RIGHTS ON LAND CHAP.

Theys- this policy it has retrained tV.m levying contributions as a
raiting method of supporting armies. In all wars, as I have said, then-
"; are occasions when requisitioning moat be resorted to. What
oMhor distinguishes the "school of the puree" is that, in the main, it
J25Si >l6 has paid in cash, or in drafts which the draioer undertakes to
therefor, honour, for whatever is requisitioned from the < nemy'fl
nationals. Indeed in some ware, requisitions, as opposed to
cash purchases, have not been in evidence at all. France has
not employed them in her recent ware, nor did England in the
Crimea, and only to a very limited extent in tin Smith
Th. pr.i< African War. In that war, requisitions were paid for by Armv
draft, readily negotiable in cash, in the great majority of wises.

African, J n some cases the supplies requisitioned were not paid for, Iwf
that was because the owners were assumed to have don*
thing meriting punitive treatment ; and though their offence
was often simply absence on commando, and therefore, in the
eyes of International LAW, a questionable offence, the fact that
it was regarded as an offence by the British authorities
removes such cases from the category of requisitions imi the

Spanish- category of fines. The United States used requisitions very

*"' sparingly in the war with Spain, and only within very restricted

limits ; and no contributions were levied in that war, any more

than in the South African, although General Merritt threatened

to impose one on Manila if the people offered resistance after

Runo- the occupation. 1 In 1877-8 the Russians paid in hard cash m

Turkish, credit notes " (cheques) for everything they required from the
Turkish subjects. 2 An English correspondent who was with
the Turks in Thessaly in 1897 relates that " even the most
ordinary rights of war were not resorted to, and the sheep and
oxen bought by the Turks, at any rate at that stage of the
campaign, were paid for in hard cash " ; the German attaM,
Colonel von Sonnenberg, was almost scandalised by the
unorthodox honesty of the Turkish supply officers. 8 In some
cases, the invading Turks appear to have taken supplies
without any acknowledgment, not to mention payment, but
for the most part they gave receipts, payable by the

1 R.D.I. September-October, 1898, p. 811.

* De Martens, r v >' p. .H43.

* Clive Bigham, With the Turkish Army in Thaualy, p. 63.

xii MILITARY Ml IIMK1TY 397

mail Treasui thy took. 1 Japan hardly

resorted m narrower MOM) at all in "***

her war with ('him T!- regulation* on the subject
whi.-h Ifarahal Oyatna issued to the tod army provided for
Hiij.pi:,- U .I..; pu'i t.>r in !-..-ii irrency, and it wan only when
it was impossible to effect payment, at .nice that n-^uuution
Doles were to be given. Th< |..-.--iliiir mutation, inter-

the then 1 1 .,!' h-Milm,^ m th,- KUHSO- Japanese aod
War impairs the value as precedents of the requisitioning
arrangement* made by the JapaoeM autli-nn. - Still, as WW
Professor Ariga says, ' an army must always have the power to
feed itself, where \ often impossible to transport

the necessary supplies from it* own cuir I

question ot iho raising of supplies, and Japan, as might have
been expected, chose the most effective and business-like

ixL She availed herself of the right of requisitioning, but
in the milder, more mod. ,. She paid for all supplies

in military axsigmit* or credit notes, which could be exchanged

.< h<l<i<-rs tor bullion held by each army and each division
treasury chest il v.ilm- of 'the a*riy*at* put

cin-ultition exceeded fourteen millions sterling. 9

It will be seen from the above historical review that the
tendency to adopt purchase in lieu of requisitioning as a
method < n^ -ij. plies has been a marked on* in n'cent

war> tiict that great business nations like Great Britain, poltoj

I Inited States, and Japan have not availed themselves
the old and valuable prerogatives of occupation, the raising of requiw-
us and of n < {motions chargeable to the defeated
is not to be explained on any other hypothesis
t han that those prerogatives are lees valuable than they appear.

fadt is that they are, ac their best, unsatisfactory methods

men ting service rations. They are less suiubU- fora

' halted ann\ than a moving on,-, but even for a moving army

re is always the danger of the country in front being
devastated a danger that is far greater than when purchase is
.rchase is the only way to tap ih

* K.D.I. SepUanber-Octobcr, 1807. p. 706.

* See UM RoguUtioon I refer to in TmkahMbi, op. rw. pp.
> Ariga, op. eil. pp. 430-2.

398 WAR RIGHTS ON LAND CHAP.

"t :i country. The great ecoinmm- la\\ .t' supply ami demand
ifl as powerful in WMTM in peace. Not all tin- proclamations,
foraging columns, martial law punishments in the world will
create a supply of commodities as well as the offer of a tan
The price for them. England proved the truth of this statement in
ridK the Crimea. "The English system of payment for supplier"
CrimLn says Kinglake, "rapidly began to hear its usual fruit and the
districts from which the people came in to barter with us ran
every day extending." 1 Th< country people," says Russell,
" are decidedly well inclined to us. Of course, they were
rather scared at first, but before the day was over they had
begun to approach the beach and to bring cattle, sheep, and
arabas for sale." 2 At first there were difficulties at Eupatoria
as there were again in the war of 1866 owing to the first
English officers who landed forgetting that English coins would
be looked at askance by the inhabitants, but as soon as a
supply of Russian money was obtained, there was no difficulty
here or in the Crimea in obtaining supplies in plenty. 8 Money
and of the has a magic power of unlocking secret stores. The American
vJ^* 1 ' * Secession movement failed in the opinion of that shrewd
observer and former Quartermaster-General, U.S. Army, J. E.
Johnston, because " supplies, instead of being honestly raised,
were impressed by a band of commissaries and quartermasters,
who only paid one-half the market value. As might have been
expected, this was enough to prevent their getting anything." 4
And this, be it remembered, was in the south the home and
heart of the Confederacy, passionately devoted to the cause for
which Lee and Johnston fought and not in a hostile land.
Longstreet saw the difficulty and the solution when he advised
impressing gold throughout the southern States. " If you could
give us gold," he wrote to Lee in February, 1865, "I have
reason to believe that we could get an abundant supply for
four months, and by that time we ought to be able to reopen
our communication with the south " (interrupted by Sherman's
operations). 6 His suggestion was not taken and the Con-

' KingUke, Crimea, VoL II, p. 352.

2 Russell, Crimea, p. 166.

3 KingUke, Crimea, VoL II, p. 326.

4 Swinton, Army of Potomac, p. 51-2.

* Longstreet, From Manama* to AppomaUox, p. 646.

x.i MILITARY AUTHORITY 399

fcderacy li other causes contributed t

too was assuredly <)u< m a large measure to the came win- h

mton assign* 1 think, a perennial object-lesson

'hone incurious who see that supplying an army,

even in war time, is a matter of business, and that to <i
efficiently, business methods, and not force, should be employed.
I -tty generally held that the old

.wing supplies were faulty in more ways than
one. They caused dissatisfaction and discontent in the occu-
pied territory, and they failed to achieve their object the
obtaining of supplies speedily and in abundance. The latter

D war tune, the great object to be held in view, and, what-
ever supply system attains it best, is the system that will
ommend itself to those who have had practical
experience of various methods. " When we pay cash," said
Bismarck in 1870, " enough always comes upon the market and
cheaper than in Germany." 1 u As far as possible," says
Professor Ariga, who went through the 1904-5 war, "the
needs of the army ought to be provided for by means of
free purchases, for then only will the inhabitants sell t
goods and at a price freely agreed upon." ' '* Supply officers,"
ays the French Bulletin Offieul relative to Field Service
(p. 84), " should never lose sight of the fact that it is best, in
order to control or secure the local resources, not to have
recourse to requisitions except in default of all other means, such
M direct purchase or amicable agreement." " Cash payments,"

I'.riti-h Requisitioning Instruction* (paragraph 11, note) lay
down, "generally ensure a more plentiful and regular delivery
jtplies, and enable the inhabitants to r< p!< in^h ir stocks,
which may be greatly to the subsequent advantage of the
Army." The old fable of the goose that laid the golden eggs
is one which the wise commissariat office ought to keep
constantly in mind. Blustering methods of intimidation are
well enough in t h.-ir j.l.t l>m thty are apt to defeat their own
1'iul wlu-n rmplojld m *'-h ;l i''i'-i'- "j" -r.it. -ii .1- ..JM nin^v
fostering, and extending the sources of supply of any required

Apiwuvntlv th<> <urli< r school of requisitioners thought that
Btth, Aiowm*, \ JXX * Arigt, op. c*. p. 451.

400 WAR KK.UrS ON LAND CH.U

Payin- Me methods were the only feasible nne^. They thought it

lation m * was Utopian to expect an invading army to subsist without
w levying requisitions which were practically gratuitous and

i ,',',,. '.'.- contributions which were ntiivly so. One findsevidence at the
slll|t Brussels Conference that even then some minds wen- dissatisfied

with the mu/./y principles which ruled the usage regardm-
The K-vies m money and kind. The Belgian delegate was especially

SJJJJJ disposed to question the divine right of inv>pon-il)le vei/ure.
""' He pointed out that the receipts given for requisitions were

" much discredited in public opinion," and he pmpo-.-d that all
requisitions should be paid for in cash or in a receipt, rendering
the giver responsible for payment. He was thirty-three years
before his time. The Swiss delegate had the honour of express*
ing opinions equally premature and enlightened. The
Conference could not be persuaded that the proposals of these
delegates were practicable or even necessary. "If the receipt,"
said the German military delegate, " has no value, it is because
the Government of the occupied country gives it none. There-
fore, if you require that receipts shall be paid, you compel the
Government to recognise a forced loan of which it knous

nothing Who could distinguish between a genuine and

a false receipt ? Receipts are written more often than not in
haste and with pencil : it is impossible to bind a Government
to recognise them all." 1 His words, with their manifest insist-
ence upon unessential, subsidiary things, were accepted as
wisdom undefiled. One is surprised to find Mr. Sutherland
Edwards declaring that to renounce the right of levying unpaid
requisitions would be, for the great military Powers of the
Continent, to renounce the right of making war. " How," he
asks, "during this last war [the Franco-Gen nan] could her
portion of such an expenditure have been borne by Bavaria
WAT loans wno , on war being declared, had to borrow ten millions of thai e is

emade f rnlll p russ j a ? " y e t there were such things as war-loans in
for rwjui- existence in 1870, and huge masses of floating capital wait m^ on

pa2bl e> the call of any needy nation, especially a nation whose success
even by in war seemed assured. It may be impossible, as Professor
Pillet remarks, 8 to oblige an invader to pay on the spot for

1 BruMels B.B. p. 279. The Germans in France, p. 292.

Pillet, op. cit. p. 233.

xii Mil. I! \m \l moKm 401

everything ho takes one cannot expoct an anny to starve
because it ban no immediate fond* but there DM been m
recent wan, and will 1 .no*, nothing to prevent an

invader pledging bis credit and recovering bin expense* at the
i the shape of an idemnity from hi* opponent
II. i...l ii. -t pay as be goes," bat there is no necessity t-.r him
t> ut.ik.- mi (ruinate peasants and iihopkeepers suffer for his
lack of funds. NobUm oblige, and if a civilised nation cannot
pay its way in war on borrowed money, if necessary it should
not go to war at all. In<lm<luab suffer enough in war wit).
losing their property in return f<r a piece of paper which may
be negotiable months or years afterwards. The
Hague Conference of 1907 (after an abortive endeavour to the
same end bad been made at the first Conference) has approved
.mil .ui-l justice of what I have said. Of course, as the
conventional law of war stands, a nation may still make its P 04 "*-
adversary's nationals pay fur the privilege of being over- run in
the shape of contributions, which remain a charge upon th-
subscribers. But here also noblem oblige, and a Sovereign
Power which has drawn the sword in a just cause should think
it shame to squeeze the money it needs for its operations from
the already hard-hit and suffering |>iulatin whose territory
armies have occuju. !. Besides, it is not to get money
iint hing to raise it at the price of disaffection, distress, and
Mm'iiM. i -considerable enough

to be worth raising at all, it may cause all this. As I h
said tin ti<l. has set against the practice of levying con tribu-
The nlI "war-scot" is moribund, except in the form
of levies for the necessary expenses of administration. The
Hague lUglemcnt, it will be borne in mind, does not legalise
contributions ; it only sets bounds to the war right whi- h
usage of war gives, and the usage of war is tending more and
more to dispense with contributions. It is fairly safe to pre<:
that th. : iliaed wars of the future will be market! by a restraint
and a moderation as regards levies both in money and in kind
which will tend more than anything else possibly could to

^'ati- th.- l>t ot non-combatants.

Contribution-, it will be noticed, can only be demanded on
the authority of the Commander t and on his written

D D

4 02 WAR RIGHTS ON LAND CHA.

. r. KtM|ui.sitims, on ihe other haml. may be made ontlir
authority of the officer in r,,i,mian<l mi th.- .-put, vhote orders

auth.,ntv n .,. ( | n ,,t be in writing. " Military necessities," sa}> i!i

of the Committee of the first Hague Conference, " are opposed
to demanding * r ordinary daily requisitions a higln-r ant horii v
than that of the officer on the spot, and, as to a written order
that would be superfluous in view of the necessity for giv ,
receipt." l

Whatmay What maybe requisitioned? Practically everything INK In
the sun. In the Franco-German War, requisitions won mn<l<-
for horses, oxen, sheep, coffins, horse-shoes, fuel, doth, boots,
socks, every imaginable thing. In the important towns
the Germans requisitioned printing offices, type, printing
presses, and the services of printers and compositors.
Luxuries were supposed to be paid for, and insignifi
requisitions were " not according to Cocker," but in neither case
was the rule always adhered to. Mr. Sutherland Edwards says
he knows of a boot-jack having been requisitioned, and at La
Besace, he found a requisition for six eggs, in the following
terms :

Requisitioned, for the staff of the 5th Army Corps, six eggs
Lieutenant , La Besace, Aug. 30, 1870. 2

The British official Instructions for Requisitioning (para-
graph 11) speak of supplies, stores, material, animal.-.
v. hides, labour, accommodation, as the usual objects in !>.-
requisitioned. The requisitioning regulation which Marshal
Oyaina issued in the Chino- Japanese War contained the follow-
ing rule :

Requisitions are to be limited to objects essential for i!i<
subsistence or lodgment of the troops, or the discharge of fatigue
duties, works of transport and organisation of sci th.

transmission of messages. If it is necessary to requisition anything
not here enumerated, the sanction of the Commander -in-Chief must
be obtained. 8

1 Hague I B.B. p. 150.

* The German* in France, p. 124 ; tee also pp. 50, 54, 57 ; and 1 1
Franro-Prunnan War, Vol. I, p. 401.

Takahashi, COMA on International La<c during the Chino-Japan&te M '"/ .
pp. 155-100. For a list of the objects and services which may he re< ( uiKi
1 \\w\-r Fn.Mi-h Law, see Bonfils, op. tit. sec. 1211.

xii MINI AIO \l II!' *l< 403

An regards the - services" which may ho requisitioned.
General do Voigta-RhuU explained them at the Brussels
Conference as including "services performed by drivers,
farriers, smiths, carpenters, and, generally peaking, by all

however, that the services demanded must not be such at to
^ the inhabitants to take part in warlike operation* 1 At
the earne Conference, the Swiss delegate drew attention to the jftgS?
hardships which would rwwlt from allowing an invader to eeiae
the mall boaU of the inhabitant* where, as in Switzerland, they
the sole means of communication between localities. The
Committee of Conference, to satisfy him, inserted the following
rather harmless w*u in tip Protocol: M In esses where boats
he sole necessary and indispensable means of communica-
the opinion of the Committee is that the occupier should
have regard to the exigencies of nary mode of living

(la vie publ\q*e\" As the German military delegate observed,
an occupant has as much right to requisition boats as the
carts of kitchen gardeners or contractors. 2 The case which the
Swiss delegate raised is one of many in which the requisi-
tioning of boats, vehicles, or property may result in peaceable

ns being deprived of their only means of living; yet
such a case the invader's military exigencies make the requ
ti<>mng imperatively neceesan S only may he need the
boats, etc., for his own purposes, but it may be a matter of vital
rtance not to leave them for the enemy to use. When
i:ipanese reached the Yalu river in April, 1904, they found
v of Chinese and Korean junks in which to cross; the
Russians bad not troubled to remove them from the south
and the attacking Japanese forces reaped the benefits of
opponents' neglect or mistaken consideration for the
inhabitants, whichever it was.'

Rej mg and the levying of contributions should

nl manly be carried out through the medium of the civil

s. The German Field Serrict Regulation* (paragraph

451) instruct requisitioning officers to invoke the assistance of

ivil authorities or other leading inhabitants, in order

BnMMlsRB.p.274. ' /M*. p. 46,

' T. Cowen, Ru**>Japm** Wmr t p. 8M.

D D 2

4 o 4 WAR RIGHTS ON LAND CHAP.

to avoid direct requisitioning by the troops and i he consc -jin -nt
danger of plundering. 1
. ini.,i I M 1904-5 the Japanese requisitioned upon the "chambers

through of commerce" a sort of urban council which existed in the
I' 1 '. Chinese villages, and these "chambers" found the vehicl. -s.

coolies, etc., which were demanded, thus acting as a " bu
author! 1 between tne troops and the inhabitants. 2 Direct contact
between the two last-named elements was still further pre-
vented by the Japanese institution of " commissioners of
administration," of whom I have spoken in the I i-i chapter.
In the Franco-German War, the " Maire " was made the medium
nimminication; an indent was sent to him for so in.-mv
rations, carts, horses, etc., and he distributed the burden as
Direct re- evenly as possible over the townsfolk. 8 Where there were no
* v ^ aut h or ities, requisition notes were delivered directly to the
inhabitants. It was the same in the Secession War; the local
authorities were used as intermediaries wherever |n.^il] ,
arenocivil Du t where none existed, direct " foraging " was resorted to.
When Sherman marched through Georgia to the sea, he found
that

the country was sparsely settled, with no magistrates or ci\il
authorities, who could respond to requisitions, as is done in all tin-
wars of Europe ; so that this system of foraging was indispensable
to our success. 4

In order to make his levies as fair as possible, he used the
statistical returns of the State. 6 The S. Carolina Cavalry
leader, Wade Hampton, protested against Sherman's methods
and whether by Hampton's orders or not is uncertain some
of Sherman's foraging parties were murdered in cold blood,
and labelled " Death to all foragers." Sherman thereupon
addressed a minute to Hampton, in which he maintained his
war right to requisition, and theatened reprisals for the murders.

If the country will supply my requisitions (he went on), I will
forbid all foraging ; but I find no civil authorities who can respond

e also French Bulletin Officiel, Service (Us armies en Campayne, p. 84 ;
Krieggbrauch im Landkriege, p. 54.
Ariga, op. cit. pp. 431, 459.

3 Horier, Franco- Pruwian War, Vol. I, p. 401.

4 Sherman, Memoir- Vol. II, p. 183. * Ibid. p. 32.

x.i MILITARY AUTHORITY 405

to calk for forage or proridonm, and therefore must collect directly
of the people. 1

Requisition* must be limited to M the needs of the army
occupation," not necessarily to the needs of the troops on the
spot Therefore, there in nothing necessarily illegitimate JjJJj^JJJ
HI th. Kronch official regulation which empowers a
commander to requisition rations for more than his actual
i in i ubers, in order to mislead the enemy as to his strength. 9
The Germans appear to have employed a rase of this kind m

I. 1

the levying of requisitions, humanity demands that a
population shall not be despoiled to such an extent as to reduce
it to starvation. " The usual practice," says a paragraph in the

h Field Service Regnlatians (P 63), " is to leave at

least three days' supply of food for a household, and rather {j^JjJJSl

t han this at outlying farms or villages." Tki Instruction* for tame-
Requisitioning (paragraph 6, noU) supplement the above regula- <!
t i--!i by laying down, as a minumum to be left, " a week's supply
of food for man, with a fortnight's forage for beast, at outlying
farms or agricultural centres." Commanders have usually
adopted a commendable attitude in this matter. The Crown
Prince of Prussia informed the people of Lorraine that all he
asked of them was " the surplus of provisions over what is
necessary for the French people." 4 Marshal Oyama instructed
>ning officer in the Chinese war to take into
account the competence of the inhabitants to supply what was
demanded. 6 The practice of levying requisitions through the
medium <>t the civil authorities makes for equitable treatment
"f i hi- population in this respect. The authorities are aware of
the capacity of their charges and will not fail to represent any
eases of exorbitant demands; and such representations will
always be patiently listened to by humane commanders.

How can the levying of requisitions and contributions be
:vt-l > The German plan in 1870-1 was to increase the

1 Bowman and Irwin, Sterna* aad AM Otmfmimt t p. 166.

9 Edwards, tfrrman* m AVnuc*. p. 270.

< linn, r. f^Hto-Prwia* War, Vol. I, p. 401.

Takahaahi, op. e. p. 1.

406 WAR RIGHTS ON LAND CHAP.

Themcans amount demanded if it were not immediately forthcoming, and
then, if the inhabitants still proved recalcitrant, to bnmK-ml .mil
burn the town or village. 1 Usually it was found unnecessary
tribe- to go to the latter extreme. The people of Orleans professed
tions. to be unable to find more than half of the amount of a contnlm -
ii"M levied upon them when the city was occupied the second
time by the Germans, and they offered plate and other arti ! >
in liquidation of the deficient moiety. The Bavarian
commander replied that he was a general, not a storekeeper,
and that the contribution would be increased by 4,000 a day
until the whole was paid. The threat was effective and on the
same or the following day the original sum demanded was paid
over. 2 Often hostages are taken to secure compliance with
lr vies in money or kind. There is said to be a usage forbidding
the captor to take their lives, 3 but against this alleged
tion the incident of the Franco-German War to which I
already referred in a different connection, when the commandant
of Nancy threatened to shoot a number of workmen if a
requisition for services were not complied with, furnishes
The quea- practical rebutting evidence. 4 The action of the German
executing commandant in this case has been condemned by practically all
hostages jurists including German writers like Geffcken 6 but it has
security the approval (for what it is worth) of the German General Staff
J ur * st - 6 Capital punishment is unquestionably a drastic method
of securing the filling of a requisition, but seeing that bombard-
ment is admitted (by International Convention for maritime
war, by the Institute of International Law for land war) to be
a legitimate mode of coercing a town which refuses to comply
with a proper demand of the kind, it can hardly be said dog-
matically that, given extreme circumstances and the failure of
all other means, the infliction of even this extreme coercive
penalty is forbidden by the usage of war. If it is contrary to
Article XLVI to take a prominent citizen in such a case and
shoot him, it is equally contrary to that article to bombard his

1 Buach, Bvtmarck, Vol. II, p. 249.

2 Hosier, Franco- Pnusian War, VoL II, p. 199.

3 Hall, International Law, pp. 415, 475 ; Lawrence, International Law,
p. 345.

' r. *Hpra, p. 151. Bonfils, op. til. sec. 1150.

Kriegibrauch im LandJkriege, p. 48.

xii Mil II AKY AUTHORI 407

house and kill him Mid most likely hi* wife and children
incidental I \ , with th-une object It IB redly only a

..ii killing a roan wr and killing him with a

measure would be quite unnfpnsssry. It in
tory that ati oocupaot can usually net*
want* ; and if he cannot, the threat of either
carrying off the prominent tizens as prisoners of war
("hostages") or of burning down a few houses, usually suffices

Purchase is, as I have shown, the accredited method of In par-
obtaining supplies in present-day war; 1m t purchase means oo
a certain price, and here a dihVnlty comes in. JJ D y,
* rule high in war and if the ordinary economic laws
peace time are allowed to reign undisturbed, the occupant may
tin I himself the chief sufferer from a market condition which
he has created. Both traditional practice and fairness demand

.)iu, limit *hall be placed to the monopoly for such

is, practically, which the body of inhabitants possesses as

against the other party to the bargain, the occupant The

>* a fair price, detailed in a tariff, at which

lies are to be purchased, and demands for a higher price are

i.-d under martini law regulations. It was so in

Russo-Japanese War. A "strictly roasonaM- price was laid

down for each commodity and any demand for a higher one was

punished. 1 The reqir .? regulations issued by Marshal

Oyaiiia m th.- \vnr with < 'hum provided that requisitions should

be paid for "at a rate deemed appropriate, though not neoes-

v so large as to obtain the consent of the owners of th.-

requisitioned articles." 1 In th. Anglo-Boer War, tariffs of

prices were published fmm time to time, and no higher price

than that laid down therein was allowed. The British

/fufrue/iofu at to Rtquiatticning (paragraph 13) provide that n<

:ise in value by reason of the existence of military opcra-

shnuld be allowed. Were inhabitants allowed to sky-

rocket prices at their own sweet will, the self-interest of

^orcnts would com]* 1 tlu-m to rcconaid. r th. ir attitude on

Arigm, op. c*. p. 457. * lUuhMhi. op. dr. p. 1ML

4 o8 WAR RIGHTS ON LAND CHAP.

the whole question of payment for supplies, which is, after ill,
but a very modern concession.

Collective Collective punishment usually takes the f.rm f a p.-eimi.-irv
levy or fine; but, although Article L app . ars among the
provisions relative to levies in money or kind, and the treat m. nt
of hostile property generally, it was intended t<>, and d.

us, apply to any kind of collective punishment. 1 Of all tho
punishments used by war law, fines are the commonest and in
many ways the most satisfactory and humane. They are, says
the German Kritgsbrauch im Landkriegc (p. 63), the most
tive way of bringing a civil population to book. But they
area form of punishment which needs to be used with the
greatest discretion and care. Bluntschli admits that the
Germans stretched their war right of collective punishment
altogether beyond its proper limits in 1870-1. 2 A system of
collective responsibility was established, which made not nly
the commune in which an offence was committed, but also that
from which the delinquent came, liable for the offence. 8 It is
this practice which the Hague Article aims at prohibiting ; its
intention is to confine collective punishment to such offences as
the community has either committed or has allowed to be
committed. 4 Two important reservations to this general state-
ment must, however, be made. First, the act punished need
not necessarily be a violation of the laws and customs of war ;
this is clear from the debate at Brussels. 6 Any breach of the
occupant's proclamations or martial law regulations may be
punished in this way. Secondly, the provision of Article L does
not prejudge the question of reprisals. 8 Consequently collective
punishment may be inflicted in such circumstances as warrant
the infliction of reprisals (as to which later). There is nothing
unfair in holding a town or village collectively n-pm^ihle for
damage done to railways, telegraphs, roads, and bridges in the
vicinity; it is the practice in all wars. If a city bridge is
broken down in peace time, the municipality will not hesitate
to repair it, for the public use ; the cost is thrown on the rates,
the increase in which may be regarded as a kind of fine. In

1 Hague I B.B. pp. 150-1. * Bluntechli, op. cit. sec. 643 bis.

Bonfils, op. cil. sec. 1219. Hague I B.B. p. 150.

Brussels B.B. p. 280. ' Hague I B.B. p. 151.

xii MILITARY AUTHORIT1 409

w;ir, II" 'l-'iil.t, th- fin.- is },. r. .. - l.'i' }., , ;- in!!:.". -j .. . . },.

a bcnwvoh -in ni<mi.-in.iht \ with an eye to the election*, bir
a mil it it y occupant whoso interests may be vitally endangered

10 damage to his communications, by whomsoever caused.

n (ho solidarity which exists in the modern borough
organised community, th- system of colle
acts whioh it may generally bo regarded an I* m^ in a posit

vent though it may not have had the power to do * n.

id* juirticular ease which ariaee is not an unreasonable one.

' ive compared th< inhabitants of an occupied country to

persons under recogniaancoa. Pursuing the same idea beret

one might say that the town or village community i- \\\ the

: t ho behaviour <t the residents, and that

each member is regarded by the occupant as a bondsman who

is legally in 'nilly, responsible for his fellow-citizens'

Th war i ^70-1 witnessed the adoption of a wide and CoIUcU
somewhat inconsequent system of collective pecuniar)- puni.sh-
men! Heavy contributions were levied on towns which offered
resistance t$. t Chateaudun while those which received
Germans hospitably, lilv Chartres, or at least passively, like

i*, were not called upon to pay anything. 1 I have spoken
already of the contribution of 25 francs per eapmt levied on the
occupied provinces to bring them to a better mind regani
resistance. thi> levy was really a fine imposed on non-com-
batants because their nation and its armies chose to fight whi!.-
any hope remained. For any damage done to the German
>iis enormous fines were the penalty; the same

ic was applied when the majesty of Germany was wounded
by anything in morganised resistance. The

parish of Launois had to pay 10,000 francs to the families of
two dragoons munlored" by th- Knni^.t:r.-ui>..- The town
of < 'hat ill- .11 was fined a million francs because a bridge was
destroyed ; Fontenoy village was burnt down and the peop)<
Lorraine fined ten million francs for the destru< the

bridge over the Moselle ; fitampes paid 40,000 francs for a cut

Under, Fnuteo-Pnutian N I. pp. 212 1 1

' T1* Pnu**Gtrm*m War. by OmcmlfMd oUUr <0C~* 4e too* Jrf m
Oe Campaign (translated by GeiMrml Maoricv), p. MS.

4 io WAR RIGHTS ON LAND CHAP.

telegraph win- ; Orleans was fined 600,000 francs because a
German soldier was killed after the city had been occuj)i <1. 1
\ Dijon, General Werder demanded a sum of 500,000 francs
afterwards reduced to 300,000 francs, as security for the good
behaviour of the town during the German occupation. I h
money was lodged and was restored to the Mayor <> n th.
evacuation of the town, the conduct of which had been
exemplary.*

I have already spoken of the war right respecting the
1 destruction and seizure of property, 8 and what I have said <>n

the subject is applicable to the case of occupation, so far as i h.
property circumstances which make such destruction or seizure a
military necessity may exist under occupation. The destruction
of Atlanta, already referred to, is a case in point. Sherman
could not hold the city as he required all his troops for the
march to the East, and he could not leave it to be re-occu]ir<l
by Hood ; therefore, he destroyed it. An occupant may always
1 -troy fortified works, arsenals, and the like ; and, when tactical
exigencies demand, any kind of property whatever. I am now
concerned rather with the question of the legitimacy or ille-
gitimacy of appropriating, using, or sequestrating property,
public or private, as affected by the nature of the property.
What I shall say must all be read subject to the proviso ih;i.
all and every kind of property (save that protected by the
Geneva Convention) may be destroyed for reasons of imperative
military necessity. And it may also be destroyed when tin-
destruction is necessary for the health of the occupying troops.
General Miles, for instance, was entirely justified in having ih<>
fever-infected houses burnt down at Santiago when he occupied
that town in July, 1898.*

Cash in the public treasury is always confiscable. "Pul>li<
ney. monies belonging to a hostile Government," the British Fi< /</
Service Regulations lay down (Part II, p. 64), " will be appro-
priated as directed by the commander-in-chief." As Professor
Holland points out, however, " some forms of property, nominally
belonging to the State, e.g., the funds of savings banks, may be

1 Maurice, op. cit. p. 563 ; Bonfils, op. cit. sec. 1219.

Hosier, Franco- Prussian War, Vol. II, pp. 174, 242.
Vide supra, pp. Ill fF. 4 Titherington, op. cit. p. 316 :

MILITARY AUTHORITY 411

reality private proper' Again,

>me Con countries, as in Belgium, the Slate bold*

and administer*, but does not own, roods destined for the

pensions of widows and children of functionaries, such as in

;land are provided lk. ..th.-r public expenditure m the

nates ; and also " Government establishments for the

reception of deposits required by law" (" tnimt dm OPHH>

Monies of these kinds would appear to be private

her than publi.- property. The foods of municipalise*, as is

)N.mt.-.i ...it in the Kritgtbrnvfh \m Ltmdkritft (p. 68, mofc), not

State property, are immune from confiscation,
tore is a considerable difference of opinion as to the
significance of the words vabur* acigibU*, " realisable securities,"
and eiidrribarr* /brrfintsjpa. All writers admit the occupant's
right to appropriate and realise documents " payable to bear
the difficulty is as to "monies due upon bills or cheques
requiring endorsement, or upon contract debts in any other
M. Bonfils dissects the question in this way:

1 . The occupant has an unquestionable right to forbid all pay
menu to the dispossessed Government

I ie must not exact debts which have not become doe.
3. His right as regard* debt* which are due or become due
luring the occupation is doubtful. He may take the interest of
the debt, but the debt iUelf the capital would not seem to pass
.mi from the mere fact of occupation. "The debtor remains
nd to his original creditor by an engagement which the events
of war cannot t On the other hand, the occupant may

I seise cash in the public treasury and what is cash but, tutor o/ut,
said debts!'

M. Bonfils, it will bo seen, inclines to allow an occupant to

| exact debts. Professor Pill.-t takes the opposite view; h-

t> "in that if the occupant may call up <i<-ht* due to th<-

in.il .xM\,-ivi.rn. he must pay debts due by the latter whi-h

consent to da 6 Professor Wcstlake and Mr.

! are both of opinion that the legitimate sovereign has alone

power to recover debts due to a country which is merer/

[ occupied, not conquered. Mr. Hall remarks that an incorporeal

t iah Official &MM ~d Ob*** </ PTar. p. K.
> Hill. /terMlmu/&ir, p.

Boofils, op. e*. sx lli> I!*, op. e*. pp.

4 i2 WAR RIGHTS ON LAND CHAP.

right "arises out of the purely personal relations between tin-
creditor and the debtor it inheres in the creditor," and that
therefore it is only when the occupant has succeeded to the full
rights of the former sovereign, by right of definitive conquest,
that the old ruler's identity can be regarded as transferred to

new so as to give him the right to sue for ckoses in a<
Professor Westlake holds that if the occupant has physical
power over the occupied district, he has no legitimate power
therein, for the old sovereign's juristic rights remain untouched
m<l "the occupant who is not a conqueror does not represent
the person of the enemy State." s This view is certainly the
more satisfactory one, from the theoretical standpoint, hut
whether it will be adopted in practice is extremely "p,-n to
loubt. The solution of the difficulty proposed by Baron
Jomini at Brussels (from which Conference the term valeurs
exigible* dates) that the question whether debtors who have
paid the occupant are legally discharged or not should 1>
settled on the conclusion of peace * is not a satisfactory
xilution. It is merely postponing the solution.

Warlike material, and all property which is directly adaptable
adaptable * warlike purposes (railways and other means of communica-

Nke end " t * on ' etc *)' ma ^ ^ 8e * ze< * ^y t ^ ie oc cu P ant whether belonging to
the State or to individuals; but there is this important
difference between State-owned and privately-owned property
of the kinds referred to that the former may be regarded by
the occupant as (to so speak) a keepsake, while the latter is only
a deposit. The latter kind of property must be restored or
compensation must be paid to the owners, and the seizure must
be acknowledged by some form of receipt. 4 The Brussels
Conference had made provision for the restoration of railway
material, telegraphs, and ships belonging to private persons,
but had made no similar provision as to depdts of arms and

1 Hall, International Law, p. 419.

9 Westlake, International Law, Part II, pp. 103-4.

' Brussels B.B. p. 308 ; see also p. 244.

4 See the Report of the Hague Committee of 1899, which states that 41 1 hr
Committee is of opinion that the fact of seizure must evidently be established
in some fashion, if only to afford the dispossessed owner some meat
claiming the indemnity expressly provided in the text." (Hague I B.B.
I- 151.)

XM MILITARY AU1 II 4 ' >

inn! iken from individual*. The rnsjim was that the

r were regarded as M contraband of war " which the oooopant

was .ntitl.-d to appropriate in perpttmu. AH I have said

he cone* | contraband " is an impossible one to

land war, and the distinction which the Brunei* Con-

I. < '..:.:.:.', ' j,.- ,

'w, that it placed a premium upon the
removal of all pri\ato stores of arms and munition*, whi
won Id always be : lerest to prevent hi* enemy seen-

and usually a great advantage to him to secure for himself.
Hague Conference abolished the distinction between
Material and railways, eta
As regards railway rolling stock belonging to the State, a

-in.- difficulty arises. Article LIII does no
. MI). /. r an occupant to appropria State

..I- him (.. >. han that

It is ti in of war which gives him the right

confiscate, absolutely, the cash, warlike material, supplies and
of his adversary. Does that custom authorise him to

ite the occupied State's railway material, too, to cai
off and keep it after peace is made ? The question is dis-
cussed. Some authors like Rouard de Card, a great an t h
on th- t iv.it n. in war would regard the n.!.

as maUrid of war and allow the occupant to iij-j-r -i-riate
di-tiniti \.-lv. Others like Stein would consider as one and

the rolling stock and the permanent way, m r
being of any use without th< other, any more than a found.v
is of any use without a house, and would permit the occupant
use the material (or to destroy it if necessary) but not to
it (if in existence) after the war. 1 The latter view is that
in the Oxford Manual (Article 51). The question was

at the Hague in 1899, but not decide), t h.- (
being of opinion that this question is one of those which
be settled by the Treaty of Peace." 1

Railway material owned by companies or individual* must R*
- restored. But during the continuance of hostilities, the ni
are held by the occupant, who may exploit them

Bonfiln, vp, cit. wo. 1185 ; AVcp6ntwA tm /xxwtfrwpt, p^ 06.
Hague 1 I ;.i:. ,- !

4 i 4 WAU RIGHTS ON LAND CHAP.

to whom commercially. To whom do the profits if any tin

rarptai revenue over expenditure, go in such a case ? Ks il -ntlv t> thr

profiu go? proprietors of the lines: ,i case not of public but of

|.M\uU' funds. Whin the Germans seized the Fn n< h
railways in 1870, they undertook to keep a profit and loss
account of the working of the lines, and, after the war, to hand
over to the administration concerned whatever was found to be
due in respect of accrued profits. The Peace Treaty pro\ i<l< <1
t.'ia mixed commission being charged with th. ;uljn>tiM,-nt, ..!
the indebtedness of the Imperial German authorities to ih
French concessionary companies to whom the lines belong* < I. 1

iv, stai What I have said as to railway services applies equally to

postal and telegraphic services.

rnoM, To indicate the way in which the various kinds of public and
"* private property are treated by an occupying army, I do not

aban- think I can do better than give the rules on this subject drawn
up by the Japanese authorities when Dalny was occupied in

and lands. 1904. 2 They are an admirably clear, sound, and practical
statement of the correct war law and usage of the matter.
The paragraph authorising the occupation of abandoned private
immovable property reads strangely like an extract fn.ni
Sherman's orders for the administration of Memphis, Tennessee,
in 1862, wherein he instructed his quartermaster, in accordance
with Grant's instructions, to take possession of all vacant stores,
and houses in the city. 3 In the Franco-German War, too, the
houses of absentees were always taken first for billeting pur-
poses. 4 But the property of even absentees may not be
alienated. One sees the raison cTttre for this rule of war law in
what happened in Bulgaria in 1877-8. The Russians gave the
farms and goods of the fugitive Turks to their Bulgarian allies;
the result was, as might have been expected, agrarian trouble
of a virulent type when the original owners returned. 6

Japanese I. Public Property of the Enemy,
ruled for -,

treatment A - KKAL.

of (a) Buildings, lands and other immovable property belonging

to the State will be made use of by our Army, or will be a HOUI

1 Bonfila, op. tit. sec. 1186 ; Fillet, op. rtV. p. _'7_'

8 Ariga, op. fit. pp. 364-5. 3 Sherman, Memoirs, Vol. I, p. 271.

4 Sutherland Edwards, op. cit. p. 52. * De Martens, op. cit. pp. 286-8.

x.i MILITARY AUTHORITY 415

of revenue IDI y can only be destroy .rm military

reasons. Except .-a-,"ihey *hotil<i be adminktered as

usufruct, and should never be annexed. Nevertheless difrffe of

,1 telephones will be seised.

(6) Immovable property belonging to the town of Dalny, an
establishments devoted to religion, charity, arts and science will be
protected and treated as private property.

B. PERSONAL.

() Specie, bills of credit, arms, military stores, railway material,
carriages, horses, ships, provisions, clothing and all articles of use
u* will be seised.

(6) Property belonging to the town of Dalny and to esUL
menu devoted to religion, charity, education, art and science, will
be treated as private propei

II. Private Pr

A. REAL.

(a) Only lands, building* or immovable property, the owners of
'i have left without appointing administrators, may be tem-
porarily occupied by our army.

(6) Ordinary immovable property may only be put to our use by
way of requisition.

A'. PSRSOKAI

> Only railway material, ships, arms, military stores, horses,
applies, clothing and all articles that can directly be of use in
war will be seixed.

(6) Other personal private property will only be put to profit
ir army as a tax, contrilmt

-Property of unknown Ownership

Whrii it is not i-li-ar whether property is public or priv.it-. it
\\ill lie temporarily regarded as public property upon condition that
the principle of private property is applied t<> it if, subsequently,
the private ownership is clearly proved.

REMARKS.

( 1 ) As the administration of the Railway Company of Eastern
China may be considered as a State undertaking, everything owned
by it or connected with it* working will be considered and treated
as property .f the State.

> AM the greater part of the property of the town of Dalny is

so situated that it is impossible to ascertain definitely the owner-

especially after the destructive acts of the Russians, the

Village and devastation of marauding bands and of the Chinese

' hemselves, no provision can be mano with respect

thereto. That to which the owners can prove their right by incon-

416 WAR RIGHTS ON LAND CH M

testable evidence, will be treated according to the ]>rin> iplos of
international law.

) Private property seized will be ivsi.-n-d and tin- nn-sii,,n .t'
indemnity settled when peace is re-estal.li^ r every HI u. I.

' !\at< property seized by the army, acrrtiti.-atr \\ ill, as soon aa
possible, be furnished.

(4) When "in- army makes use of property (In- .\\ unship of
\\hirh is not certain, the designation of these articles, their iiuiiil.rr,
and any information as to the place where they were found.
etc., will as far as possible, be recorded.

The words The words "at sea" in Article LJII, which may seen in-

IM t'i,r l applicable to land war, would cover the case of ships s.-i/.-d m

l: ".i !> a port by land troops as at Port Arthur in 1905 and m<>r

especially ships destined for river navigation. The Confederate

General, Forrest, captured with his cavalry two river gunboats

and a number of transports in 1864. 1

ules It is a question whether, as regards forestry, the " rules of
usufruct U8U fr u ct " mentioned in Article LV are those already in force
in the occupied territory or those ruling in the occupant's S
Bluntschli would give the new-comer the right to applv his
own laws on the subject, 2 but seeing that the occupant is bound
to maintain existing laws and regulations as far as possible, the
local rules would appear more appropriate. The main object
is, however, to prevent barbarous treatment (Raulnvirtschaft ) of
the forests. 3

i eat- With the subject of Article LVI, I have already d.dt

okmtL sufficiently. Roughly, one may give the gist of the Article as

works of' this : first, a commander may, if necessary, turn a church int..

a hospital, but he may not auction the vestments or other

church property to raise money. 4 Secondly, he must not carry

off or damage that class of property which may be generically

described as " starred by Baedek

Theshore- At the Hague Conference of 1899 it was proposed to add
endgof the words "cables d'aterrissage " " shore ends of cables" to

1 Grant, Memoirs, p. 544.
r.luntachli, op. rU. sec. 646. See Bonfils, op. cti. sec. 1182.

3 Brussels B.B. p. 251.

4 But such a "forced sale" might be quite justified if the ecclesiastics
responsible for the church property had refused to comply with a proper
requisition or demand for a contribution, imposed in respect of the clnm-h
prop.

xii MINI \KY AUTHOKI 417

' railways, telegraph*, etc.), which a \>

gerent was entitled to seise, subject to bin rt*u>ring them or pay-
IM- oomp DMtion Th. prop il i M ihad otd owing ko ;.' >
sal to accept any provision which teemed to trench
no war law. No similar objection wa raised in
roviju\m on the same subject contained
is an oflfepring of the last Hague Confer-
ence. The point dealt with m th. Article is only one of several
which arise in connection with the treatment of ocean cables
Air The Institute of International Law discussed the
whole question in 1902 and agreed to the following rules:

1. A submarine cable uniting two neutral territories
riolabk

\ cable uniting the territories of two belligerent* or of two
part* of the territory of one of the belligerents may be cut any-
its, except in the territorial waters or the neutralised waters of
a neutral State.

3. A cable uniting a neutral territory to the territory of one of
the belligerents may not under any circumstances be cut in the
territorial or neutralised waters of a neutral State. In the high
tea, this class of cable can be cut only if an effective blockade
exitfts and within the limits of the line of tbe blockade, and the
cable must be restored with the least possible delay; it may
always be cut on tbe territory or in the territorial waters of an

lemy's territory, up to a distance of three marine miles from low
water mark.

4. Tbe liberty a neutral State has of transmitting messages does
not imply the right to use the cable, or allow it to be used, clearly
to assist one of the belligerent*.

i the application of these rules, no difference is to be made
between cables belonging to the State and those belonging to
viduals, or between cables belonging to the enemy and those
belonging to neutrals. 1

The third of these rules, it will be noticed, would give a
i Military occupant an absolute right to cut the shore end of a
cable joining the occupied country to a neutral one ; Article
I. IV makes him liable to pay compensation in such a case.
The point was one of some doubt Chili paid compensation
for cutting the cable of a British Company in her war with
But when Admiral Dewey cut the Hong-Kong Manila

1 Bonfils, op. cd. SBC.

4 i8

WAR RIGHTS ON LAND

CH. XII

Tabular

triMtllit-Mt

!;;;r ly

tps>

tioll.

cable at Manila in 1898 the United State- <1 linl t<> admit
the claim to compensation preferred by the British Company
which owned the line. 1

In the following table I have tried to give in a rough In it
concise form the war law provisions respecting the treatment
of certain forms of property during occupation.

TABULAR STATEMENT SHOWING TUB TREATMENT OF PROPERTY i
OCCUPIED COUNTRY.

Property may be either :

(i). Conftscablc, when it becomes the property of the occupant outright, no indemnity

(iiX Not confiscable, but subject to sequestration by the occupant, who must, however,

return the property at the peace or pay compensation (H).
(ill). Neither confiscable nor sequestrable, but subject to be requisitioned (for barracks

or billets, <.g., services or supplies) (R).
(Iv). Subject to usufruct, i.t., it may be exploited by the occupant, who must not,

however, alienate, damage, or destroy the substance (U).

CLASSIFICATION or PROPERTY UNDER THE ABOVE HEADINGS.

Nature of the Property.

Public
Property.

Private
Property.

Remarks.

Movables :
(1). Money, notes, realisable securities
(2). War material deptot of arms,
uniforms, army stores, and. gener-
ally speaking, property directly
adaptable to war

i Whether state-owned rail-
way rolling-stock is to be
retained by captor or restored
should be specially settled in
the Treaty of Peace.

(8). Railway material telegraphs,
shore-ends of cables, wagons,
horses, motor cars, airships, boats,
and other means of transit and
communication
(4). Movable property not diroctly
adaptable to warlike purposes ...
Immovables :
(1). Institutions devoted to religion,'
charity, education, arts and
sciences

C
R

8
R

' Includes churches, tern*
pies, mosques, synagogues,
etc., without any distinction
as to the nature of the re-
ligious cult (Hague I.B.B.
p. 152).
As to neutral property in an
occupied country, see Chapter

(2). Other buildings, lands, forests,
and agricultural undertakings ...
The property of communes <.g. t " town
halls, waterworks, gasworks, police
stations" (Holland, Lawt and
Ckutonu of War, p. 40)
Shore ends of submarine cables con-
nected with a neutral country

R
8

N.B. IMPERATIVE MILITARY NECESSITY MAT JUSTIFY THE DESTRUCTION or ANY or

ABOVE KINDS Or PROPERTY.

Westlake, International Law, Part II, p. 283.

CHAPTER XI 11

THE GENEVA CONTENTION
Ctmvfntional Law of \\\ir : Hague JUgUmnd.

ARTICLE

The obligations of belligerents with regard to the aiok and
wounded are governed by the Geneva Convention.

Geneva Convention, 1906: Section I. The wounded and

ARTICLE I.

Officers and soldiers, and other persons officially attached
to armies, shall be respected and taken care of when
wounded or sick by the belligerent in whose power they may
be without distinction of nationality.

Nevertheless, a belligerent who is compelled to abandon
sick or wounded to the enemy shall, as far as military
exigencies permit, leave with them a portion of his medical
personnel and material to contribute to the care of them.

ARTICLE IL

Except as regards the treatment to be provided for them
in virtue of the preceding Article, the wounded and sick
of an army who fall into the hands of the enemy are prisoners
of war, and the general provisions of international law con-
cerning prisoners are applicable to them.

Belligerents are, however, free to arrange with one another
such exceptions and mitigations with reference to sick and
wounded prisoners as they may judge expedient; in
particular they will be at liberty to agree :

To restore to one another the wounded left on the Held

after a battle ;
To repatriate the wounded and sick whom they do not

wish to retain as prisoners after rendering them fit for

removal or after recovery ;
To hand over to a neutral State, with the Utter s consent,

the enemy's wounded and sick to be interned by the

neutral State until the end of hostilities,

E E 2

420 WAR RIGHTS ON LAND

ARTICLE III.

After each engagement the Commander in possession of
the field shall take measures to search for the wounded, and
to insure protection against pillage and maltreatment, both
for the wounded and for the dead.

He shall arrange that a careful examination of the bodies
is made before the dead are buried or cremated.

ARTICLE IV.

As early as possible each belligerent shall send to the
authorities of the country or army to which they belong the
military identification marks or tokens found on the dead,
and a nominal roll of the wounded or sick who have been
collected by him.

The belligerents shall keep each other mutually informed
of any internments and changes, as well as of admissions
into hospital and deaths among the wounded and sick in
their hands. They shall collect all the articles of personal
use, valuables, letters, &c., which are found on the field of
battle or left by the wounded or sick who have died in the
medical establishments of units, in order that such objects
may be transmitted to the persons interested by the
authorities of their own country.

ARTICLE V.

The competent military authority may appeal to the
charitable zeal of the inhabitants to collect and take care of,
under his direction, the wounded or sick of armies, granting
to those who respond to the appeal special protection and
certain immunities.

The To deal with the Geneva Convention at all adequately would

0JU2. require a separate, fairly bulky volume. I cannot deal with all
lion. the difficulties here. I shall confine myself to examining a few
of the practical points which have arisen in applying the pro-
visions of the Convention (for its provisions represent usage,
stereotyped into a code in 1906) in modern wars, and to a
concise synopsis of the work of the last Conference.
A Conven- ^he Convention, is, as the name applies, an international
tionnota. diplomatic act by the precise terms of which the signatory
Powers are bound. In this it differs from the Hague Rtgltment,
which is an annex to a Convention. The Riglement may perhaps
be compared to the Schedule to an Act of Parliament, while
the Geneva Convention is an Act of Parliament itself; but the
comparison must not in either case be pressed too far. Professor

xin THE (.1 \l-.VA CONVl vriOM 4*1

,! who wan a Britwh delegate to iho Geneva
i :K)6, HUggested that the text agreed upon thould be drafted
in the form of a Convention with a Mglfiumt attached, on the
Hague precedent It would be convenient, he pointed out, to
the detailed instructional part separated from the
diplomatic, ao that, if some day a complete code of war law
were drawn < >rmer could be inserted therein as it stood.

The other delegates raised objections to Professor Holland's
suggestions. M. de Martens said that the experience with the
Hague RlgUnuni had not been fortunate, only four or fiv<
of the twenty-eight signatory Powers having issued ii
t.. th. ir trN.ps MI accordance with the terms of the
The United States of America alone supported the British
proposal, which was therefore lost 1

.. Convention of 1906 replaces that of 1864. The older W
Convention made no specific mention of the inviolability of the WDO JJ^

and wounded; th. principle was thought too evident to
require to be stated.* The new Convention is explicit on this protected,
point Obviously, however, "wounded and sick" must be

preted as M rendered helpless by wounds and sickness." If
wounded men cunt mm- to fire while lying prostrate, as the
Russians did, and as they were perfectly entitled to do, at
Ink. rman; s < y attack those who come to bring them

succour, as the Dervishes did after Omdurman ; * or if they act
as a wounded Boer did at Vlakfontein (May, 1901) and crawl

the field of battle and shoot the enemy's wounded,*
they are not rntitled to be "respected and taken can*
Such "wounded" as these I refer to, or such "sick men" as
are often mustered to arms to defend a sore bestead and
grievously punished garrison post, are enemy soldiers and
nothing else. It is for wounded and sick who have ceased to
resist that the Convention secures respect and care.

i Convention does not, as is commonly supposed, **/ra/ttf Oiptarad
the sick and wounded. Its object is only to secure that they d

> /******* to 4t0MM OMM*Mm 1906 (OL Jm, 1906), pp. 46-7. JJ

(I shall refer to this - white paper" M " Ota. Co***," in future,)

Piltet, op. efl > KingUkc, Orimm, Vol. VI, p. 471

Winston Churchill, fflnr Ifar. Vol. II. pp. lft 7.

Tim* ffHory, VoL V, p, 284.

422 WAR RIGHTS ON LAND en

are tended and not maltreated, and that for this purpose the
sanitary personnel shall not be interfered with in th.-ir
humanitarian work. The wounded and sick are protected from
violence, but they do not cease, from the mere fact of being
disabled, to be enemy combatants. They may be " casualties,"
but they are still soldiers, and if the enemy captures them they
are nothing more nor less than prisoners of war. This point has
been made quite clear in Article II of the new Convention, l>ut
that Article records no change in existing usage. After the
battle of Shiloh, Sherman captured 280 Confederate wounded.
" Not having the means of bringing them off," he says, " Col.
Dickey, by my orders, took a surrender signed by the medical
director (Lyle) and by all the attending surgeons, and a pledge
to report themselves to you [General Grant] as prisoners of
war." l The surgeons were not, of course, included in this obliga-
tion : " surgeons," he says elsewhere, " are not liable to be made
prisoners of war." 2 The first Geneva Convention had no altera-
tive effect upon the general status of the sick and wounded. Its
sixth Article provided for the release of such wounded (or sick)
prisoners as were incapable of bearing arms again, but for all
others freedom could only be secured as the result of
voluntary agreement between the belligerents or by the
The Too- prisoners giving their parole. An incident of the Chiim-
Japanese War, known as the Too-Nang Affair, is instructive in
this connection. China was not a party to the Geneva Con-
vention, though Japan was, but she, like Japan, rendered
respect to the Red Cross in the war. In November, 1894, the
vessel Too-Nang approached Port Arthur with some neutral
persons (mostly Americans) belonging to the Tientsin Red
Cross Society on board, and delivered to the Japanese
authorities a despatch from Li-Hung-Chang stating that their
object was to bring back the Chinese sick and wounded from
Port Arthur. Count Oyama, commander-in-chief of the Japan
expeditionary force, replied that the wounded were prisoners of
war, and that he could not allow them to be taken away, even
though the request was made through the good offices of the
Consuls of neutral Powers. He went on to state that the
Chinese wounded and sick were well cared for in the

1 Sherman, Memoirs, VoL I, p. 243. 2 Ibid. p. 269.

xiii THE GENEVA CONVI \ I ION 423

mese hospitals, and ended by requesting the Too-Nang
to leave the offing of Port Arthur by 6 p.m. on the Mine
day. '1'K- i in-ideal was represented by tome American news-
papers an a "Japanese rejeoiioo of the Red Croan," but
he Japaneae were itrictly within their righto
in what they did. 1 Another caae bearing on the status of TW
wounded enemy soldiers aroae in the Russo-Japanese War.
After the sea-fight at Chemulpo, at the commencement of

War (February, 1904), the crews of the two sunk Russian

-on* Variag and Aortyffs, were received on board the
foreign battleships in the harbour, and their position "was

A fit understood at first The Japanese gave notice that the
laws of war would require in such a case that the survivors
should be prisoners of war, having been defeated in battle."
Some of the n. -utnil officers on the spot protested against this
view of the case, but the matter was eventually settled by the
captured Russians being released on giving a pledge not to
serve against Japan during the war.* They were, in fact,
treated as prisoners of war ; their restoral on parole was purely
a concession on the part of the Japanese. One finds the
common misconception as to the position of wounded men crop-
ping up also in the Anglo-Boer War. After the Spion-Kop
disaster, the British medical officers and stretcher-bearers re-
moved a considerable number of the British wounded from the
mountain, though it was then held by the Boers, Botha
appears to have allowed many of the casualties to be carried

LIU the main work of removing them had been effected be-
d on the scene.* It was really a case of " bluffing"
th. commander who held the field, like the incident recorded
by Sir Ian Hamilton as occurring after the battle of Penling in
1904, when the Russian ambulance parties removed not only
the Russian wounded but also the rifles and ammunition of

lead and wounded. 4 As I have said, the status of the sick
and wounded who fall into the enemy's power is now dearly
described by Article II of the Convention of 1906 ; and the

i, op. cit. pp. 115-ltt.
T. Cowen, ftuMo-JopoiMM ITar, pp.

iOA*r, WXM Steyn and /> r< p. 41. SM Tim** ffutory, Vol III.

,.. _*;

I Sto/0fis?i Sen* Book Vol. I, pp. 367-*

4 2 4 WAR RIGHTS ON LAND CM

question is still further removed from doubt by the report ,.f
the proceedings of the Conference given in the British official
" whitr ; Convoys of evacuation, which were guaranteed

on " absolute neutrality " by the earlier Convention, are now
assimilated to "mobile medical units," and as to thepati.ni
therein, " it was agreed .... that the sick and wounded could
be made prisoners of war." l

>|..., i.-ii The necessity for saying, as is said in Article II, that the
^Sf belligerents are " free to arrange " certain releases which they
U*J k? require no special authority for arranging, is not at first appar-
restoral of ent. "It was, however, thought desirable," says Professor
wounded Holland, " to suggest to commanders ways in which they may
relax, in favour of the sick and wounded, the rigour of the rules
otherwise applicable to prisoners generally." The new provi-
sions are, at any rate, a great improvement on those of th<
earlier Convention. That Convention was drawn up by a body
which consisted mostly of doctors, and the drafters hardly took
sufficient account of the general rules of International Law.
Consequently, although one may disagree with Bismarck's
view that the Convention " was good for nothing and could not
be carried out in practice," 2 it is undeniably true that many of
its provisions were found quite impracticable under the actual
Inca- conditions of war. One of the Articles laid down that prisoners
' who, after being cured, were found incapable of serving, were to
be restored to their own State. Obviously, such a provision
was altogether too general, and one is not surprised to find the
German Field Service Regulations (paragraph 475) stating that
" officers whose return to their army might influence the results
of the war may be kept back." 8 One has only to think of Lord
Raglan with " the historic appeal of his maimed sword-arm "
(which he lost at Waterloo) ; of Masse*na directing his corps at
Wagram while he lay wounded in a carriage; of Hood and
Ewell, the two Confederate generals who had only legs enough

1 Gen. Convn. p. 37.

* Busch, Bi*marck, Vol. I, p. 85. He said again that the convention
" nonsense, but we must tolerate the thing." (Ibvl. Vol. II, p. 41.)

See also the Japanese Regulation* for Pritoners of War, which state that
the rule as to restoring prisoners incapable of service is " not applicable to
those who might have an important effect upon the war" (Ariga, &/

xiii Til \KVA CONVENTION 425

between th. -m ( r.. (l t^Mtoo, the Swedish general who,

paralysed though he was, astounded all Europe by the rapi

M march* : and one need not go to the domain of tea warfare
for a greater name than any of these to prove that what amount*

noapaoity to serve is and must be an unknown quarr
The new Con imposes no obligation upon a commander

to place captured sick and wounded in a category in any way
distinct from that of other prisoners. It ..nl\ throws out the
suggestion that he may waive his strict war righto respecting
them and restore them at once or subsequently. It may suit
a commander's interest* to hand over the enemy's wounded,
whom he cannot, of course, treat inhumanely if he retains them ;
it may be no gain to the other to receive them. The
arrangement is purely facultative. After the Alma, the British
found themselves unable to provide for the care and mainten-
ance of the 500 Russian wounded who were left in their hands.
When the Allies started on their flank march to Balaclava,
these Russians were left in charge of one surgeon, Dr. Thomp-
son, and his soldier servant, and as might have been expected,

.sufferings were terrible. After a few days, they were re-
moved to shipboard and handed over to their own Government
at Odessa. In a letter to the Governor of Odessa, Admiral
Dundas expressed the hope that the Governor would, " in the
same feeling of humanity, receive and consider them as non-
combatants until regularly exchanged." The Governor's answer
wan u cold and stern," says Kinglake, for he was angered at

storation being ascribed to motives of humanity ; the poor,

iltfi men were simply an incumbrance which it was
convent. -nt f.. r th. I to get rid of. 1

A belligerent who has to abandon his wounded is not, it will f
be noticed, under any absolute obligation to leave with them

medical assistance which they need. Military necessity ISS
may justify him in omitting to do so and then the enemy com-
mander is bound to succour the sick and wounded who have

1 Kinglake, <Vm. VoL III. pp. 33*-* "The ft.
not knowing that UM British soldim WOT no better oft
and indignant terms UM mock humanity of I
bandaged with hay and straw, so that gmngrsstt
oases, scarcely any having received any medical or wrgfaal
deeerred the name," (Nolan, ft/a* wtt AMM, VoL I, p. 498X

426 WAR RIGHTS ON LAND

fallen into his hands; but the latter cannot effect th< imjh.s.
sible. The retreating army is to blame if it has abandoned such
large numbers of wounded and sick that all the efforts of the
other belligerent cannot provide adequately for their care and
treatment In the earlier battles in Manchuria in the Russo-
Japanese War, the Russians left so many wounded men lying
on the battle-fields that the commander of the Japanese army
at Si-Mou-Cheng, Major-General Ouyehara, addressed a com-
plaint on the subject to the Russian commander, pointing out
that the Japanese sanitary formations could not cope with th<
additional work thus thrown upon them and requesting th.it
more care should be taken by the Russians to remove their sick
and wounded. 1 After the battle of the Shaho the Japanese
medical personnel found it absolutely impossible to attend to the
Russian wounded as speedily as could have been desired. The
foreign attaches with Kuroki's army were inclined to criti' !-
and to attribute the delay to a disregard for the Geneva Con-
vention, but obviously no Convention, however solemnly sealed
and signed, can alter a natural law and enable a doctor to be in
two places at once. If a retreating commander wishes to be
sure that his wounded are properly attended to, he must, if
their number is considerable, leave surgeons of his own with
them. To do what the Greeks did at Larissa in 1897, when
they left large numbers of sick and wounded in the hospitals
without a single doctor to attend to them, with the result that
many died before the Turkish medical officers arrived, is to fail
in the spirit, if not in the letter, of the Convention. 2
The pro- Article III of the Convention imposes an onerous duty on
oTthe 1 commanders, which, however, has always been carried out in
wounded recent wars, says the official report of the Conference. 8 It is
did feft in the night that follows a great battle that most of the tragedy
and horror of war has always taken bodily shape. One remem-
!,, I M' bers that the Geneva Convention itself had its origin its
first rough sketch in the impression which the field of
Solferino that dreadful battle fought in the rain wrought on
the brain tissues of Henri Dunant. And Solferino was hardly

1 Ariga, op. cit. pp. 132-3.

Clive Bigham, With the Turlcuh A my in Thewnly, p. 57.

' Gen. ConvK. p. 27.

xni Nil GENEVA CONVENTION 427

worse than some oilier great fights, There is no need to go
back to the B&rfaina or Bylau for evidence; every modern
from the Secession to the Rosso-Japanese snd especially
those very two I name has seen wounded man left un tended
after battle, in agony from wounds, pain and thirst, perishing of
exhaustion, of starvation, of the violence of marauders, of
hill of frost or the heat of accidentally- kindled fires. No
national agreement will ever make such things as these
y impossible. I! lanl, the war correspondent of The

the Secession times, visited the field of Perryville nine days
after the fight (8th October, 1862). He found the dead still
unburicd and hogs making a gruesome feast off the corpses. 1
Oonelson (February, 1862) many Bounded on

both sides were frozen to death after the battle.* After the
" bloody bush-fight " of Chickamauga, where Q. H. Thomas
earned his name* some of the wounded were burnt to death
: s 'h th. shells setting the woods on fire ; and the same
.: happened at Chancel lore vi lie. 4 Worst of all in this way
was the battle of the Wilderness ; there the woods caught fire
in many places and a large number of helpless wounded perished
miserably in the flames. 5 There is something sad as well as
something humorous in the description of the Federals marrh-
ing away from the Wilderness to Spoteylvania Court House (for
another grim struggle) with their drum-corps playing the negro
camp meeting tune, " Oh ! ain't I glad to get out of the wilder-
new i for all the sufferings of the wounded in the
Secession War, there was none of that intentional barbarism _
which one finds in the Crimean War and the Rosso-Turkish \iS*
War of 1877-8. It is needless to go into details. Such as are
interested in the subject will find ample material for study in
the histories of these wars. 6 One thing only I shall specially

llard, JtaMMKWiOM, VoL I, p. 331.

Drmper, op. r*. VoL II, p. 989.

1 Thorn** WM called the Rook of Chickamavft " for hit tnbborn Uad at
th.it ba*h
4 Gordon, Ktmim*****. p. 900; Draper, op. <*. VoL III. p. 116.

Grant, *<*, p. 467 ; Wood and KdmumU, op. r. p. 181 : Pbrter.
Campaigning *A Grant, pp. 78, 81

For the Crimea-Ru-ell, Onmm, pp. 938, 980 ; Ktaflake. Cnmm, Vol.
V. pp. 356 7; Vol. VI. pp. 77. 480; Nolan. War *A *MM, VoL I, pp.
438, 648, 678, 800, 80ft. For the Rua Turkwh War-Nniroritch.D.m

428 WAR RIGHTS ON LAND en

draw attention to namely, that cruelty to the enemx
wounded never "pays." It is rank bad policy. Many
witnesses record that the Russian troops attacked in the lain
assault on the Shipka Pass with a fierce determination, a ruthless,
almost fanatical heroism, which no defence could withstand.
They had in their minds the thought of their murdered
comrades, tortured and tattooed with the red cross, and of the
pile of severed skulls which the Turks erected on the Pass after
the first assult. Here, as at Plevna, the battle cry, " Remcmlx i
your tortured comrades," roused the Russians to an irresistible
ardour which must have seemed to the Turks a heavy price to
pay for the satisfaction of sawing off a few wounded prisoners'
hands and feet.
There are occasions in war in which military necessity the

" ^ orc * para 11101111 ^ " f war P uts * te veto u P on an y endeavour to
to take collect the wounded and dead after a fight whether because
casualties tactical considerations require that the ground on which they
after a \( e mus fc be swept with shot and shell, to prevent the enemy
seizing it (as happened at 203 Metre Hill, Port Arthur) l or
because the holders of a jealously-guarded position cannot allow
the enemy's search-parties to approach their line and spy out
Instances the secrets of the defence works. The wounded who fell in the
attacks on the Tugela Heights (22nd and 23rd February, 1900)

Boer lay for forty-eight hours between the opposing lines, " suffering
unspeakable agonies from their wounds, from heat and thirst
and from the stench of the dead with whom they lay inter-
mingled. Attempts made by either side to succour them hac
invariably drawn a heavy fire." 2 Until the armistice of 25th
February, they were exposed " alike to the elements and to the
shot and shell of the combatants." 8 One cannot blame Boers
or British for want of humanity ; large issues were at stake-
issues thought to be more important than the lives of a few score
of wounded men. Time and again the same impossibility of carry-

chenko, SbobeUf, p. 131 ; Herbert, Plevna, pp. 224, 268 ; Greene, Russian
Army and its Campaigns in Turkey in 1877, p. 174 ; Epauchin, Gourko's
Advance Guard, pp. 123-5; and De Martens, La Paix el La Guerre,

1 Ashmead-Bartlett, Port Arthur, p. 330.

8 Times History, Vol. Ill, p. 532.

Maurice, Official History, VoL II, p. 492.

x... THE GENEVA CON VI \ I ION 429

the provision* of the Geneva Convention WM evidenced in MM!
' i tpanese War. Arthur the Japanese soldiers

i'-!l ui the iuwaultn had nnnnessrily to be lea where they
lay ; attempt* to remove them at night were frustrated b
flash-lights and tar-ahull* of the fortress. Mr. Ashmead-
Bartlett rulatc* how he Maw, from the advanced trenehea toward*
Bodai, the bodie* of thoee who fell a month before "now 1
more than bone and um: the sun did it* work quickly

he hot climate." > The great heat of August and September
caused the dead bodies to putrefy rapidly, and the surgeon*
had to serve out rags soaked in ammonia to the sentries in the
advanced posts ; in some places the sentries had to be relieved
every half-hour. " Many of the wounded lay for days, almost
'ii reach of their friends, until death put an end to their
suiV. -nil--. Wounded men crawled for shelter into every
little dip and donga in the ground, and there they lay M to die
a lingering death from thirst or starvation, far removed from
the sssitUnce of their comrades." ' All that could be done was
to remove the dead for no wounded were then left alive in
the next assault, usually a month or more later. 4 One shudders
to think that such things could happen in a civilised war between
two Powers bound by the Geneva Convention. It is hardly
going too far to say, as one writer does, that M the Bed Cross
was never respected" 6 The fact is that the sheer necessity of
the defence warranted the Russians in, practically, disregarding

Ijefore that necessity every other consideration had to give
way. As Professor Ariga says, no one but a writer without
experience of the actualities of war can say that M the enemy
exceeded his righto in opening fire on those who, wearing the
emblem of the Red Cross, caine out to remove the dead and
wounded" 6 It was impossible to allow the nature of the ground
and the secrecy of the defensive positions to be examined even

uen who acted no doubt from single-hearted humanitarian
motives, but who still had eyes to see with. The scene of the
unsuccessful assaults had, for imperative tactical reasons, to be
closed against the assailant's search-parties. Port Arthur, with

1 AfthmeBd.BBrUett, op. of, p. 176. Ibid, pp. 104-&

>/Wd, p. 431. -.ncB.ip.ot.il. 161.

Anhtuead B*rtkll, op. oX p. 180. Arif*. lor. rW.

430 WAR RIGHTS ON LAND CHAP.

its sad story of wounded men left to die like rats in a hole, is a
standing reminder of the truth that, at best, convention is
idealism, war realism.

" The cases," says Professor Ariga, " in which it is possible to
bury the dead immediately after a battle are much less numerous
the dead than those in which it is absolutely impossible to do it for
after a several days after the fighting." l After the battle of the Shaho
the corpses lay where they had fallen for 150 days. To have
granted an armistice would have been doubly harmful to the
Japanese, as delaying their own work of strengthening tin -ir
line and giving the enemy an opportunity of examining tin-
defence works, consisting of wire entanglements, mines, etc..
which it was imperative to keep secret. There was no fear
here, as at Port Arthur, of the decaying bodies causing con-
tagion, for they were frozen at once by the extreme cold of the
Manchurian October. 2 Usually the fear of infection is a suffi-
cient motive with commanders for clearing up a battlefield.
Chloride of lime is one of the most important accessories of
warfare more important even than salt hardly less important
than ball-cartridge. The experience of modern war is that
enteric and dysentery kill off more men than the enemy's bull* -is
and shells. But it was not so in the Japanese army in 1904-5.
The freedom of that army from disease was partly due to the
splendid efficiency of the Japanese medical service, to which
Sir Frederick Treves has rendered generous testimony ; 3 but it
was still more the result of the thorough system of cleaning up
the battle-grounds which prevailed in the Japanese armies.
The regulations issued on this subject will be found at length
in Professor Ariga's work. 4

The The provisions as to examining the dead, collecting identity

tiorTand marks, etc., are innovations ; their object is to prevent the
collection possibility of men being buried alive and also to secure proper
returns of the fallen. The duties referred to have been
generally recognised as binding in theory but actually have
rarely been carried out with any thoroughness. Sherman says
that the names of the " unknown " in the cemeteries where
are buried the dead of the great war, account for about half of

1 Ariga, op. cit. p. 163. 2 Ibid. p. 167.

In The Other Side of the Lantern. 4 Ariga, op. cil. pp. 154-8.

xiii 1111 (I \IVA CONVENTION 431

all the (alien. 1 One does not wonder at thin whan one read*

at the - Bloody Angb N at Cold Harbor.

where the dead lay three or four feet thick, the - Union soldiers

tl the dead by simply turning the captured
upon them." 1

the commander who remain* in possession of the HM
field to collect and protect the dead and wounded. After ^

i man the Allies proposed to Prince Mentachikoff, under a t*
flag of truce, that he should send out and bury his dead; " he U2
answered rightly enough," says Kinglake, " that by the custom
of nations the task of burying the dead lies on those who hold
possession of the field." 8 The bodies must be carefully Tb. mod.

t tinri^l

examined before they are buried or cremated. Presumably the
mode of burial would no far as possible be that in fashion in
the deceased's country. The Japanese buried the Russian
dead in 1904-5, although cremation is the rule in Japan ; only
in cases in which contagion was feared was cremation provided

:u the regulations for cleaning up the battle-fields. 4 When
the dead were cremated, the ashes were to be preserved, or if *****
this were not practicable, locks of the dead men's hair were to
be cut off before incineration and kept* Very few of the
Russian dead appear to have been cremated. Even after the
foil of Port Arthur, when the bodies lay putrefied, hacked to
pieces by mines and shells, utterly indistinguishable from each

r, on the hills round the city, the Japanese authorities
allowed the Russian sanitary commission to collect and bury
the corpses of the fallen defenders. Professor Ariga had given
his opinion that to cremate the bodies would be unobjectionable,
but in this as in other cases " the Japanese officers were more
sealous than a specialist in International Law for conformity
with the principles of civilised war." 6 The general Russian
aversion to cremating the dead was properly and generously
taken into account by the victorious Japanese, who would have
been quite justified in iritmg upon incineration for reasons of

AfcMOtr, Vol. II, p. 191

QMwy JfoyMMM (** BatUa* and LMdcn"), '* . \\XIV, p. 307.
Kinglakt, Onmtn pp. 467 S.

Aiiga, op. rw. pp 156, 170. /M. p, 154.

IKd, p. 171.

432 WAR RIGHTS ON LAND CHAP.

hygiene, as they did in t he Chinese War of 1894-5. 1 The dead
had sometimes to be cremated, tm .lunatic reasons, m th<
Cuban campaign of 1898.*

Article IV partly reproduces and partly supplements An i.-l.-s
10 f C XIV and XIX of the Hague Rtglemcnt. In addition to the
information which a belligerent is bound to furnish thereunder,
the Japanese rendered to the Russian Government, through
wounded t ^ lc French Minister at Tokio, a list of the places of burial, the
and sick.' rank, the regiment, and, where possible, the names, of the
Russians who fell in battle and were buried by the Japanese.
As Professor Ariga observes, the Convention, strictly read,
imposes no such duty on a belligerent. All he is bound to do
is to collect such marks of identity and valuables as he can
find on the dead fallen in battle ; " he is not bound," says
Professor Ariga, " to proceed to identify all the enemy's dead
collected and buried on the field by the different corps of his
army." 8 Perhaps the provision of Article III for a " careful
examination " of the bodies is intended to cover a nominal roll
of their numbers, regiments, etc., being prepared as well. If
so, it would have been well to have stated the obligation
expressly.

Identity The use of marks of identification, showing the soldier's
name, religious faith, company and regiment, is general. It
was proposed at the last Conference to make the use universally
obligatory, but the proposal was rejected on the ground that
" such marks might, when found by the enemy, furnish him
with valuable information as to the disposition of the hostile
army." 4 But soldiers themselves are little disposed to think
of tactical considerations like this ; they wish to be remembered
in death, to leave some indication of themselves for th< n
families. One finds the Federal soldiers of the Secession War
and the Boers of 1899-1902 improvising "identity discs" in
the form of slips of paper pinned to their clothes, or of names
traced inside their hats, before an engagement. 5 The first
army to adopt " identity discs " officially appears to have been

1 Ariga, op. tit. pp. 171-2. * R.D.I. September-October, 1898, p. 786.

1 Ariga, op. tit. pp. 172-177.
4 Holland, Law* oj War on Land (1908), p. 28.

Porter, Campaigning with Grant, p. 174 ; Hillegaa, With the Boer Forret,
p. 146.

THI M NEVA CONVENTION 433

viitin army. In the war ..! ls7o 1, each German
soldier carried a paste-board badge showing hi* regiment and
number. The badge was commonly known as the man's
" tombstone " (yra&stoim).'

At the last Geneva Conference the Dutch delegation pro-
posed to forbid categorically the use of wounded men as
cover, but the proposal was lost by a Urge majority ;' presum- **'
il>U because such a provision was felt to be out of place in the
Convention, not because it was an unnecessary or improper
one. The practice of sheltering behind a wounded enemy and
firing from the security thus obtained is a clear act of in-
humanity which is punishable un<l< r the usage, if not the
conventional law, of war. Another objectionable ruse which
has been adopted in more than one modern war was not
discussed by the Conference at all. The ruse I n-f.-r to was Tb raw
practised by the Russians in the Crimea and is thus described jf^M*"
by au historian : wouls

fur

A number of Russians lay down, in attitudes cleverly imitative
of men who had fallen from the fire of small arms, and at soon *
the Greys passed, rose and fired upon them. 1

The incident Nolan refers to occurred at the fighting which
took place during the Allies' flank march from the Alma to
Balaclava, At Inkerman, the ruse was repeated, the
' resurrection boys " (as the British soldiers called them)
dropping down in the brushwood and pretending to be dead
until the charge had swept past. 4 In the fighting at Port
Arthur in 1904, the Japanese soldiers resorted to the desperate
expedient of falling beneath the wire entanglements shamming
death, in order to cut the strands when the Russians were off

r guard. The result was an indiscriminate shooting of all
wounded men who lay close to the wires. " I have frequently
seen the Russians," says Mr. Ashmead-Bartlett, - notably on
October 30th, start up in their trenches and deliberately shoot

man who stirred." It was cruel, he says, but legitimate ;

Russians could not risk having their defences pierced by

lower, AtuKv/ViUMM Ifor, Vot I. p. *S7.

G**, Conn. p. M.

> NoUn, War v*A Ru~ t Vol. I, p. 461.

* KingUke, fW*n. V,,| VI. ,,.

r r

434 WAR RIGHTS ON LAND CHAP.

Unjurti men feigning death. 1 But no such justification can be found
for an order which was issued to the 1st Brigade of the 31st
Russian Infantry Division in Manchuria in February, 1905.
The order was as follows :

Instruct all the troops that if, in their advance, they meet
Japanese stretched on the ground, and more particularly lying on
their backs, they are to run them through the body, because the
Japanese pretend to be wounded with the intention of firing on us
from the rear when the attack commences. 1

The document containing this order fell into the hands of
the 1st Japanese Army at Mukden, and the legal councillor of
that army, M. Kafonkou, was asked to report upon it from the
point of view of International Law. The substance of his report
was as follows :

The order was an inhuman one, for it enjoined the killing of
wounded men. Such a measure could properly be adopted only (1)
as a punishment, or (2) as an act of reprisals. If adopted as a
punishment, then it should have been under the sentence of martial
law or military justice. If adopted as a measure of reprisals,
satisfaction should first have been demanded of the Japanese
authorities, but this was not done ; no steps were taken with a view
to having the objectionable ruse forbidden.

As to whether the ruse was actually legitimate or not, M.
Kafoukou held that it was one which belligerents ought to proscribe,
because it made the application of the Geneva Convention difficult
and rendered the position of wounded men left lying on the field a
precarious one. 1

Professor Ariga himself observes that " for an officer having
authority over thousands of men to give an order, written in
cold blood, to bayonet every soldier lying on the field, system-
atically," is "a flagrant violation of law for which the whole
Russian army must bear the responsibility." 4 With this view one
may agree while admitting that the ruse out of which the illegal
Russian order arose was itself illegitimate. No treacherous
simulation of sickness or wounds, says Dr. Oppenheii
permitted among the ruses of war. 5

Article V replaces an Article of the old Convention which

1 Port Artk*r, p. 187. Ariga, op. cit. p. 150.

Ibid. pp. 150-1. 4 Ibid. p. 151.

International Law, Vol. II, p. 118.

xin THI GENEVA fONVKNMON 435

vided that inhabitants bringing help to the wounded should AOM-
respected and remain free, and that any house which My <^n
tered a wounded man should be exempt from furnishing JJJj"^
billet*. This provision was objectionable ; the first part made ^au to
robbery and espionage possible, since nothing was said as to TJJSijfj
permission of the military authorities being required ; and * *fc
the second was an incentive to hooseboldecs who wished to
escape the unpleasant duty of finding quarters to cany off a
wounded man as a protection. The new Article leaves it to
the discretion of the commander on the field to call upon the
inhabitants for assistance, which he may do by way of requisi-
tion lnt which would probably be better done by an appeal to
especially seeing that the wounded and sick may
be t h.-ir own kinsfolk and acquaintance. Whether he " requisi-
tions " or " appeals," the assistance rendered by the inhabitants
will be rendered under his supervision. In the Russo-Japanese
War, it was found that the Chinese were afraid that succouring
wounded Russians would be regarded as a hostile act by the
,J;i|an.>r. M Mm;ik:i\v;i. l.-a! OOUMlfiQi oi '-' M Ar::.;.
records a case in which a wounded Russian, forgotten after a
skirmish, paid a Chinaman all the money he had with him
:h- hitter's promising to cam* him to either a Japanese
or a Russian hospital. The Chinaman carried him a certain
distance and then abandoned him, fearing to be punished for
.g helped a Russian. To prevent a recurrence, the
Japanese authorities issued a proclamation in all the Chinese
villages, in which they promised a recompense to inhabitants
who succoured wounded men, whether Japanese or Russian.
The proclamation had little effect; so far from rendering aid to
the wounded the Chinese usually robbed them of all their
possessions. In this, says Professor Ariga, there was nothing
astonishing to one who knows the Chinese character ; in the war
of 1894-5, the inhabitants were known to refuse a glass of
water to their grievously wounded, thirst-parched compatriots,
simply because they were natives of another province, 1 Surely
parochialism could no further go. Still, it requires a rrmsifW-
able educative process, one must admit, to make men see the
logic of doing all one can, in envy, hatred, and malice, to drill
* Arigm, op. r. pp. 13M.

K .

436 WAR RIGHTS ON LAND CHAP.

holes in OM.-'S runny, and then, the object .1. to trv ju<t

as hard to heal them. One can appreciate t In ( 'liinese attitude,
at least in the war of 1904-5 ; it must have seemed unquestion-
able to the primitive mind that helping a Russian was injuring
Japan.

Section 11. Medical Units and Establishments.

ARTICLE VI.

Mobile medical units (that is to say, those which are
intended to accompany armies into the field) and the fixed
establishments of the medical service shall be respected and
protected by the belligerents.

ARTICLE VII.

The protection to which medical units and establishments
are entitled ceases if they are made use of to commit acts
harmful to the enemy.

ARTICLE VIII.

The following facts are not considered to be of a nature to
deprive a medical unit or establishment of the protection
guaranteed by Article VI :

1. That the personnel of the unit or of the establishment
is armed, and that it uses its arms for its own defence or
for that of the sick and wounded under its charge.

2. That in default of armed orderlies the unit or estab-
lishment is guarded by a picket or by sentinels, furnished
with an authority in due form.

3. That weapons and cartridges taken from the wounded
and not yet handed over to the proper department are
found in the unit or establishment.

Mobile The Convention discriminates between " mobile medical
unite " and " fix ed establishments," as will be seen. The precise
dividing line between the two is a little obscure, for though
Article VI defines the former as units intended to accompany
units into the field (en campagne), the fixed establishments
referred to in the Article do also, in a sense, go into the field,
and though called " fixed," they are (as Professor Holland says *),
hospitals which, whether actually movable or not, are situated on
a line of communications or at a base. A suggestion that the
words " on the field of battle " should be used instead of " into

1 Law9 of War (1908), p. 30.

THE (,1 \I-VA CONVI \1ION 437

the field " was negatived at the Conference, as being too narrow.
luint to be considered, therefore, is whether the hospitals
(or ambulances) do actually accompany the troops, whether they
move with them as part and parcel of the moving fighting body,
or whether they remain on the line which feeds that body and
which, though it may be constantly stretching out and moving
forward, is rather a tentacle from than an organic part of the
all-important body in front I shall illustrate the distinction Disti
between the two kinds of medical units by taking the case of
the British army medical formations. The following table
gives a rough idea of the relative position of the various kinds nTiS"
of hospitals mobilised by an expeditionary force :

Troopt in 0*fidd cavalry, artillery, infantry,
army troops. With these are Cavalry

Ambulant* (22 vehicle*) and KM Ambulan**r " "
(16 vehicles). '"

Advanced tins of communication* beyond rail-
kind pott a kind of tentacle connecting the
line of communications proper with the fighting
troops (or troops " in the field "). At the top
of this advanced line is a Clearing ffoepUai
(accommodation for 200 sick), with a Stationary
ffoepital (200 beds) or two below it

C. These are

I of communication* proper ; along this
line are Stationary I/otpitaU and Gtneral
ffoepital* (520 beds) at varying intervals, the
main dep6t being at the base.

As to the medical formations at "A" and at "C" above no

question can arise the first are mobile, the second are fixed.

1 ambulances have their own transport; the others have

Again, stationary and general hospitals are equipped with

beds and staffed by lady nurses ; ambulances have neither. It

is as to the Clearing Hospitals at M C" that some doubt mn

4J8 WAR RIGHTS ON LAND en

The cUasi- felt. Their fund inn is, ;i- the name implies, to pass on the
Clearing wounded from the ambulances to the stationary and general
Hospitals, hospitals. They are akin to the ambulances in not being
equipped with beds and in having male nurses. They are akin
to the hospitals in having no transport of their own and in
being normally located at a fixed point the advanced base.
Transport is provided for them by the Inspector-General of
Communications usually in the shape of empty supply wagons
or hired or requisitioned vehicles and this