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INTBENATIONAL LAW

IWBKS BY SIR HENRY MAINE.

I.

ANCIKNT LAWEai-ly History of

Ideas.
II.

Connection with
its

Relation to

the

Modem

9&.

VILLAGE -COMMUNITIES
AND WEST.

IIL

Its

Society and

IN

THE EAST

[is.

THE EAKLY HISTORY OF INSTITUTIONS.

'.),s.

IV.
V.

EARLY LAW

CUSTOM.

POPULAR GOVERNMENT.
]

democracy.

of the

VI.

ANJ)

III.

Age

United States.

of Progress.

Us.

11.

7s. Od.

INTERNATIONAL LAW.

Nature of

IV. Constitution

Is. ikJ.

INTERNATIONAL LAAV
THE WHEWELL LECTURES

\i\

SIR

HENEY SUMNER MAINE,

F.R.S.

FORKTGN ASSOCIATE MFMBRR OF THK IXSTITUTK OF FRAXCIt

LONDON

JOHN MUERAY, ALBEMAELE STREET

1890

PKINTKI)

SPOTTISWOODK AND

CO.,

l?y

XKW-.S'I'JIKET

4^^ 7//

SQUARK

NOTICE.
The

Lectures were delivered before the

following

University of Cambridge, in Michaelmas

by the
of

Law

International

They

Whewell.

partly written
corrected

in

by him

The

publication.

the

Henry

Sir

late

iwe8s

by

S.

Maine, then

his

of

the manuscript,

but not prepared for

sheets have been passed through

Frederic

and

Harrison

Frederick Pollock, both of Lincoln's Inn,

it

their

duty in any way to

the draft of the Lectures, except so far as

to clear the sense of
it

They
alter

was needed

an occasional passage, which

in

stood was obscure or plainly defective.

Titles to the Lectures

and an Index have

added.
Lincoln's Inn

Mr.

who were

appointed two of Sir H. Maine's executors.

the copy as

Dr.

own hand, and throughout

for delivery,

Mr.

have not thought

1887,

Professor

on the foundation

printed from

are

Term

September, 1888.

also been

v\

CONTENTS
PAGE

LKCTURE
I.

II.

International
Its

Law

and Soueces

Its Oeigin

Authority and Sanction

26

III.

State Sovereignty

IV.

Territorial Rights of Sovereignty

V.
VI.
VII.

VIII.

54

Naval or Maritime Belligerency

The Declaration of Paris

69

.93

110
123

The Modern Laws of War

143

X.

Relations of Belligerents on Land

Index

The Mitigation of War

Rules as to Prisoners and Quarter

XII.

IX.

XL

Eights of Capture by Land

Proposals to Abate

War

160

176

.192
207

229

INTEENATIONAL LAW.
LECTURE L
ITS ORIGIN

AND SOURCES.

The eminent man who founded

fessorship of International

Law

the

Whewell Pro-

laid

an earnest and

express injunction on the occupant of

this chair that

he should make it his aim, in all parts of his treatment of the subject, to lay down such rules and suggest such measures as might tend to diminish the evils

of

war and

finally to extinguish

war among

nations.

These words of Dr. Whewell, which occur in his

and in the statute regulating his professorship, undoubtedly contain both a condemnation and a direction.

will

International

Law

in its earlier stages

by

to

many important

method of treatment which has been applied

subjects of thought

growth has reached the point

cluded in books
in

was developed

some

cases,

at

to theology, to

when

their

which they are

in-

morals, and even,

to positive private law.

Writers of

INTERNATIONAL

2
authority

who have

LAW

lect.

i.

gained the ear of the learned and

professional classes follow one another in a string,

each commenting on his predecessor, and correcting,

adding

to,

or devising

new

applications for, the pro-

For a considerable time

positions he has laid down.

Law,

International
derstood,

authoritative

who, however,

writers,

from one another materially in their

differed

defects.

names

words are commonly un-

had to be exclusively collected from the

dicta of these

and

as the

At the head and

qualities

at the foot of the list

two

are often conventionally placed, first that of

who was born in 1583, and died in 1645, and

last that of Yattel, who was born in 1714 and died
Of both these writers it may be confidently
in 1767.
Grotius,

asserted that the rules and propositions

doVn

laid

may
it

did tend to diminish the evils of

possibly help to extinguish some day

nations.

which they

But of the residue of this

must be confessed

that

war and

war among

class of publicists,

some were

superficial,

some

learned and pedantic, some were wanting in clearness

of thought and expression, some were
to the modifications of

little

sensitive

moral judgment produced by

growing humanity, and some were simply reactionary.

As
to

these lectures proceed I

which

class,

and

for

may

what

be able to point out

reasons, the writer im-

mediately before us belongs.

Meantime

at first sight it

may

be allowed to pause and say that

seems hopeless to discharge in our

LECT.

AND SOURCES

ITS ORIGIN

I.

S^

day the responsibility which Dr. Whewell has

on

What

his professor.

teacher of Law, public or

what we

private, considering

means of

to suggest the

laid

see

around

us,

and

controlling,

can hope
less

still

of weakening and destroying, the prodigious forces

which seem now to make

the figures

for

alike appear to

growth of these
middle year of

forces in

this

war

The

point to

and

facts

an enormous

The

volume and strength.

century was the thirty-fifth of the

long peace which began in 1815

a peace which was

not quite unbroken, for there were some intervals of

petty local war. but which was as long as any which
existed since

was

Modern Europe began, and a peace which

fruitful in

every sort of remarkable result.

That generation may be

peace.

It

said to

have had a dream of

looked forward to a time when, in the words

of the great poet

fluence over

it,

'

who was then beginning to exercise inThe war drum should beat no longer

and the battle flag should be

furled.'

And in 1851

an

event occurred which has since then been somewhat

vulgarised by repetition, the establishment of the
first

of the Exhibitions of Art and Industry.

seriously added to the belief that wars

strife in

arms was

had ceased

to be superseded

by competition

was

to be conducted

in the peaceful arts, controversy

by

It

literary agencies

and no longer by arms.

poet and prose- writer then

still

living put

it,

'

As

Captain

Pen had vanquished Captain Sword.'

B 2

INTERNATIONAL

But the buildings of

which

than ever.

this

lect.

First

again,

country was a principal belligerent

which England was

more

came the Crimean War

followed the frightful struggle of the Indian

in

i.

Temple of Peace had

this

when war broke out

hardly been removed

terrible

LAW

solely concerned.

in

then

Mutiny
Shortly

new French Empire

Governments established in Italy by the

afterwards the Government of the

attacked the

Treaty of Vienna, and soon the whole of the Italian

arrangements

set

up by that Treaty were destroyed.

Before long, the United States of America, supposed

to be preserved from
sense,

war by a

sort of

were torn asunder by the war of secession,

which, proportionately to
costliest

its

and bloodiest of wars.

continuance, was the

In no long time the

German arrangements which were

Vienna
chief

homely common

fell

in pieces

German powers.

established

at

through a quarrel between the

Almost the other day there

came the French and German war and the struggle

between the Russians and the Turks

contests which

unveiled the bases of quarrels of which

seen the end

we have not

namely, the historical rivalry between

the French and Germans, and the most hopeless of

all

the problems which the civilised world has to solve,

the contest provoked by the inevitable break-uj^ of
the Turkish Empire.

The immediate
be traced

causes of these wars can of course

but to believers in the permanent return

LECT.

ITS ORIGIN

I.

AND SOURCES

Even more

of peace they were a bitter deception.

alarmino- than the return of

of war into peace.

tation of their

forced

war was the intrusion

After the defeat of Jena, the Umi-

army which

Emperor Napoleon

the

upon the Prussians produced a system of which

world a new

the effect was to teach the Western

The whole popula-

method of military organisation.

tion of a country

As

armies.

in the

was passed through the ranks of

most ancient days, the young men

primarily fought, after them came

them

in

age, after these their

the next

elders

above

of

all

them

knew, and now know, the use of arms, and nobody

escapes the necessity for fighting in particular contingencies, except either the very old

young.

When

The

figures

or the very

exceedingly astonishing.

are

Russia was rising to the height of military

reputation which she gained in 1812 and 1813, she

had always a
100,000 men

difficulty

into the field

tain six millions of

effort

in
;

bringing as

now

armed men.

she

is

many

as

said to con-

The most

energetic

which was ever made by France to arm her

population was in 1813, after the retreat from

Moscow

and before Napoleon's surprising campaigns within

the limits of France herself were commenced.

number of men which Napoleon with

ants led to

combat from France,

federation of the

all his

Italy,

The

lieuten-

and the Con-

Rhine (to which were added the

disengaged garrisons of French soldiers) was almost

INTEENATIONAL

exactly equal to the

moment

this

War/

at

army when on

says Grotius, in a remarkable passage in

preceding age,
is it

i.

footmg.

which he shows
only

lect.

number of men which France

regards as that of her

strictly peace
^

LAW

'

his dissent

war

is

from the opinions of the

not an

Nowadays not

art.'

an art requiring a long apprenticeship and

equipped with a multitude of precise rules, but besides this it is the

science

and

mother of new

The whole

arts.

which has occupied the

art of explosives,

inventive genius of civilised lands for about twenty

years,

is

peaceful
its

of warlike origin
art,

and an apparently most

hydraulic engineering,

is

owe

said to

remarkable modern development to the study of

the means of lifting and working great naval guns.

Guns of long range were

first

tried

in

the field

during the Crimean war, when they were on the

whole pronounced to be a costly

failure.

have some very remarkable evidence

of what they have

come

to,

at this

But we

moment

supplied partly

by a

Committee of the House of Commons appointed to

consider the

army

estimates,

and partly by the report

of a Royal Commission appointed to investigate the

subject of naval

mode
the

The

in

civil

patterns, or

in

other words, the

which new inventions are dealt with

and military

Director- General

ofiicers

of

hrf

of our government.

Artillery stated

to

the

Parliamentary Committee that the increase in army

XEOT.

ITS ORIGIN

I.

AND SOURCES

estimates which was due to the advance of military

began in 1882-83, when breech -loading guns

science,

The

were finally adopted.

was

a third

iron

tube,

more than that of the

but this cost increased

of the 100- ton

gun

11. ,

now

all

the labour and

fortifications

It fires a

appear to end in

It thus

is

this.

likely to

cost

charge of powder and shot weigh-

Each charge

ing about a ton and a quarter.

150/.

was rather over

the skill expended nowadays

all

Each of the most modern guns

50,000/.

in the case

till

All the treasure and

reaches at least 150/.

on ships and

wrought-

old

exceeded 19,000/., while the

it

of the projectile, which once

cost

gun

cost of the steel

costs

happens that one of the large guns

used in the ships in which the great naval victories

of England were

won

at

the end of the last century

and the beginning of the present did not cost much

more than a few charges of powder and shot

in a

gun

After a

story.

shots

it

is

so

gun

existence

delicacy with

which

ofi'

of the present day has fired 150

it

must be
the

is

my

I repeat, then,

work

are so enormous,

diminished, or reduced
consolation

repaired.

result

of

strain

it

This short

the

extreme

has been endowed by modern

it

art.

Some

fired

this all the

is

damaged by the labour and

has undergone that

effective

Nor

of the present day.

question

how

when the

shall they be controlled,

by a mere

may

forces at

literary

agency

be found in a position

INTERNATIONAL

which

it

because

it is

lect.

i.

the more necessary to insist upon

all

is

LAW

not quite in harmony with the assump-

made by some famous writers, presently to be

discussed, who are more associated than any others
tions

with the origin of International Law.

Most of them|

thought that mankind had started from a condition

of innocent peace.

had interrupted

It

was man's depravity which

this state

There can be no ques-

tion that this proposition reverses the truth.

It is

not peace which was natural and primitive and old^

War

appears to be as old as man-

kind, but peace

gence

is

is

modern

invention.

Our

intelli-

only just beginning to enable us to penetrate

the clouds which rest on the farther verge of history,

but what does seem clear to trained observation

is

Not
war more

the universal belligerency of primitive mankind.

only

is

war

to be seen everywhere, but

it is

atrocious than we. with our ideas, can easily conceive.

Take one example, the

the treatment of the
first

there

are

that the prisoner

practices concerned with

wounded and of

signs

prisoners.

which cannot be

At

mistaken

and the wounded man are not

only killed but tortured before being put to death.

The

still

learned
of

men

savage races from

as to

are

the original

whom

most has been

usages

and conditions

the North American Indians and the

aborigines of Australia.

and had produced virtually

universal and unceasing war.

but rather war.

That the North American

>-

P\
/

LECT.

ITS ORIGIN

1.

AND SOURCES

Indians tortured their prisoners before putting them

number

to death is one of a

which have made

to us

One branch

of facts very familiar

way

their

into literature.

of this race, the Mexicans, attained to a

but

certain degree of civilisation,

it

also

is

matter

of familiar knowledge that the Mexicans put their

prisoners to death with the greatest cruelty almost

and that the practice with them had

in hecatombs,

As

acquired a religious sanction.

it

to the Australians,

has been observed that they have inherited the

animal instinct which leads them even to torture

game

their

after it is

captured and before

The English school-boy has

cession,

come

by

Koman triumph when

enemy, who had been led in the pro-

was not only

to mediaeval

peared, and,

killed.

often been shocked

the concluding passage in a

the gallant

it is

killed

but flogged.

war these

cruelties

When we

have disap-

though the suiFering of the wounded and

of prisoners was great,

it

seems to have been due

rather to ignorance and carelessness than to cruelty.

It is said that at the battle of

Agincourt only one

man who had any knowledge of medicine or surgery

was present, the functionary who was the predecessor
of the official now known as the King's Staff Surgeon.
The only

influences

which

history seem to put an end to

are

influences

and

to

which

which some

at

the beginning of

war on

have been

injustice has

a large scale

much maligned
been done.

The

LAW

INTERNATIONAL

10

lect.

i.

conventionally revised history of the world begins

with the formation of certain great empires, the

Egyptian, the Assyrian, the Median, and the Persian.

No

doubt they were a result rather of man's rapacity

The

than of his humanity.

was

object of their founders

to gratify ambitious display

to increase the area

taxes

on a great

scale

and

from which they could take their

but nevertheless no one could say

how much

war they extinguished by the prohibition, which they

undoubtedly carried out, of

hostilities

various sub-divisions of their subjects.

these Empires which

mankind

conferred similar benefits on

West was

the

in

among the
The latest of

the

Roman

Empire.

During the long Roman peace not only did bloodshed practically cease, but the equality of the sexes,
the mitigation of slavery, and the organisation of
^Christianity

made

their appearance in the world.

When, however, one

the old suffering revives.
Lord,'

is

of these empires breaks up,

'

Give peace in our time,

a versicle in the Anglican Liturgy which

from the rupture of the Empire, that

is

said to date

is

from the time when the Empire was breaking up

into

kingdoms occupied by barbarian

races.

It is

obviously a prayer for an unusual and unhoped-for

blessing.

In the East the amount of bloodshed

prevented by the Chinese Empire

Independently
Indian Empire

of

any other

may

confer

is

benefits,

on the

incalculable.

which
collection

the

of

XECT.

ITS ORIGIN

I.

countries which

were

AND SOURCES

includes, there

it

no question that

is

hands of

to be dissolved, or to fall into the

it

masters unable to govern

make

11

it

the territories which

it,

up would be deluged with blood from end

As the history of modern Europe proceeds

are moments when old controversies seem to

to end.
there

have been exhausted and fighting

is

to a certain

extent relaxed, but then some great difference arises

between

men

commence

the

wars of

and Europe

There are other

is

again

facts

at

apparent importance which

At

all

times,

full

first

of bloodshed.

sight of smaller

too

are

little

noticed.

amid truculent wars ever reviving, there

are signs of a conscious effort to prevent

mitigate

example,

for

religion,

Man

it.

to

has never been so ferocious, or so

stupid, as to submit to such an evil as

some kind of

war or

effort to

prevent

it.

war without

It is

not always

easy to read the tokens of his desire and endeavour to

obviate

war or to diminish

its

time to interpret these signs

directed to

them they

number of ancient

it

but when

institutions

vide an alternative to

takes

it, is

is

The

which bear the marks

way

of war, and to pro-

exceedingly great.

numerous old forms of trial discoverable in

number of

some

attention

are quite unmistakable.

of a design to stand in the

are

cruelties

countries and in a great

There
a great

number of races in

which, among the ceremonial acts of the parties, you can

see evidence of a

mimic combat.

The Roman

sacra-

INTERNATIONAL

12

mentum

is

What we

LAW

lect.

the best and most familiar instance of this.

call a judicial

proceeding

is

obviously taking

Another expedient, which

the place of a fight.

good deal misunderstood,

is

is

homicide, sometimes on his tribe, the

Wehr Geld

the Germans, the Eric fine of the ancient Irish.

it

represented as evidence

value attached by these races to

(it is

ing an enemy.

But

this is a

amount of the punishment

man who

learned that a

human

trivial.

took the

first

is

Here

for kill-

life

we

we had

of another

was

should, I sup-

punishment was

But one of the new ideas

which we owe to the ancient

law,

of

slight

life.

If

inflicted.

pose, have been of opinion that the

not

misapprehension of the

deprived of the whole of his land

at all events

of the

mere money compensation

said) is a

the pecuniary fine which

was imposed sometimes on the individual author of

have seen

i.

Irish law, the

an adequate conception which we

Brehon
for

the

time gain of the importance to mankind of move-

able property.

Capitale^ cattle, capital, a

long de-

scended term, was the imperatively required imple-

ment

for the cultivation of land, at a time

when land

and perhaps common and undivided.

was

plentiful

The

necessity imposed on the family or tribe of a

who had

taken a

life

of paying a portion

man

of this

jealously guarded subject of ownership to another of

the ancient groups was not a slight but an exceed-

ingly heavy penalty.

LECT.

ITS ORIGIN

I.

It is

AND SOURCES

13

remarkable further that, among the tribal

groups of which society was primitively or anciently

made

good

up, the observance of

been more

faith

seems to have

than among individuals.

strict

some evidence of want of respect

for

There

sanctity of

agreement among individuals, but not so amid

The ancient monuments which

are

they also record

and antiquity

defeats,

but

Treaties of great complexity

treaties.

among

are found

tribes.

open to us no

and

doubt generally recount victories

is

the surviving savages.

Also we have a glimpse of systems of what would

now

be called International

Law

that

rules enforced with a regular ceremonial

it is

ments of

by

trained

Such was the jus fetiale of the Romans.

official agents.

And

to say of

is

to be noted that there are certain departthis

to have been

stricter provision

made than were

modern days
of Nations

law in which

in

what

is

seems

found in

at the outset

technically called the

for example, the

Law

extremely express and

severe rules which regulate declarations of war.

In modern days the name of International

has been very

much

confined to rules laid

one particular class of writers.

aid to begin in

century,

and

They may be roughly

to

run

three

parts

by

through

the

The names which most of us

Hugo

Grotius,

Zouch,

Selden,

are first of all that of the great

followed

down by

the first half of the seventeenth

eighteenth century.

know

Law

Puffendorf,

Leibnitz,

INTERNATIONAL

14

LAW

lect.

The

Wolf, Bynkershoek, and Yattel.

absolutely begin with Grotius, nor does

list
it

r.

does not

exactly end

with Vattel, and indeed as regards the hither end of

assumption

this series the

still

is

made, and I think

not quite fortunately, that the race of law- creating

jurists

before international law

writers

it

had

be noted that

It is further to

exists.

still

like

fell

into the hands of these

most other subjects of thought

attracted the attention of the Church.

There

whole chapter of the law of nations which

of

by Koman Catholic
difference

slight

theological

nature

and

is

treated

writers,

and a

which distinguishes

use

their

technical expressions, such for example as

'

is

'

of

law of

natural law,' occasionally perplexes the

student of the system before us.

The rules, however,

named and a few others,

the degree in which

laid

down by the

writers I have

the nature of their system, and

it is settled,

will

occupy much of

our time in the present or future courses of lectures.

In the

first

that conventionally

International

plied condemnation

works acted on the

who

is

Law; and secondly in them we

not only the writers at whom Dr. WhewelFs im-

known as
find,

place their system

is

aimed, but the writers whose

spirit of belligerency like a

charm,

did prevent wars and mitigate them, and did

something to prepare a time when war should be

no more.
efi'ect

I said

something a few minutes ago of the

of great agglomerations of countries in terri-

lECT.

ITS OEIGIN

I.

AND SOURCES

When

empires in producing peace.

torial

man Empire had broken

15
the Ko-

new

up, after a while the

European world was long protected against incessant

war by

its

gave as

much

surviving authority.

Its

very shadow

The pope

peace as was to be had.

or the emperor, each a continuation of the Caesars,

served as a court of arbitration and did compose disputes and prevent wars.
not,

Too much

influence

must

have to warn you, be attributed to their

Their sphere was more particularly Italy;

influence.

who has written both in

and who has conceived the

but Ferrari, an historian

Italian

and French,

expedient of mapping out Italian history into periods

according to the nature of the revolutions which
occurred in the Italian States, has counted

among

these states no less than 7,000 revolutions, each with

a war of

its

own, small or great.

the emperor

Still

and the pope, and yet more the pope

than the

emperor, were unquestionably, on the whole, makers

of peace

and sometimes the place of the pope was

taken by a prince of acknowledged

St.

Louis of France.

wars of

religion,

wars

the

Protestant, put an end

The pope, of

among

the

course,

sanctity,

like

But the outbreak of the great

between Catholic and

to these pacific

influences.

was necessarily on one

combatants,

emperor was on the same

and on
side.

the

Hence

it

whole

side

the

came about

that the great international jurists belonged to the

INTERNATIONAL LAW

16

lect.

The

smaller states and were wholly Protestants.

International

Law

of the

Roman Catholic

and

fallen into suspicion

to obey

The

and

it,

what the new

this is

doctors had

finally into disrepute.

law with a new sanction was required

i.

if states

were

jurists produced.

was a rapid mitigation of wars and a rapid

effect

decrease in their frequency.

very important that we should ask ourselves

It is
A what is

the true place in legal history of the set of

Law.

rules called International

It will

be found that

the proper answer to this question involves replies

to several less general questions which are

put by

critical writers, or

gest themselves to the

nowadays

which spontaneously sug-

mind of the

student, as to the

nature and authority of the famous system before

What,

then,

European jurisprudence
confidently that

its

civilised nations

was

in the diffusion of

of you

who have

We may

much

considerably less

men on

learned

answer pretty

rapid advance to acceptance

a stage,

though a very

Roman Law

ago,

juridical

the

late stage,

over Europe.

interest,

now

Those

touched upon a

and of some

than a century,
the history of

difficulty.

all

virtually

writers was

that,

universal

when

In

the ideas of

Roman Law

western world have undergone change.

years

by

paid any attention to the history

of law are aware that I have

subject of

us.

place in the general development of

is its

in the

A hundred

assumption of

the pressure of in-

LECT.

AND SOURCES

ITS ORIGIN

I.

vading barbarous races had broken up the

territories

Roman Empire into separate kingdoms, the

Roman Law was lost, as the Empire itself was sup-

of the

posed to have been

were

this

other,

and

at

and

re\dval,

the

so,

It

lost.

Roman Law must

some time or

this

that, if

in

some way or

other, have

undergone a

was explained by

discovery of

story of the

was indeed plain

fables, like the

copy of

Justinian's

Pandects at the siege of Amalfi.

More
points

is

recent

which on some

learning, learning

extremely recent, has taught us that

of these assumptions are doubtful and

nor the

C^sar

at

Roman Law
head of

the

tions associated with

the Republican

stroyed

many others are

The Roman Empire was never wholly

certainly false.
lost,

many

it

Roman

either.

it,

The Empire, with

and with some

institu-

which even pointed back to

^

period, survived

to be de-

by Napoleon Bonaparte, though no doubt

it

was ever decaying and sinking into a heap of ceremonies, names, and forms.
the other hand,

was

The Roman Law, on

practically everywhere,

tendency was, not to decay, but to extend

and enlarge

its

custom which

authority.

first

The systems

its

portions of then' structure.

At

its

area

of local

established themselves in the

Europe betray a large ingredient of Roman

many

and

new

Law

in

a later date,

writers of treatises professing to set forth the whole,

or a definite part, of the institutions of particular

LAW

INTERNATIONAL

18

lect.

i.

countries, are found to have

borrowed considerable

fragments of books which the

Romans regarded

And

authority.

of

Roman

civilised

No

then

we seem

its

Europe.

one explanation can be offered of these

the reverse

of

classes,

of law

of

Roman Law,

the

In others

basis,

institutions
still

at least

was bar-

known

to

some

barbarous system

if it

be contiguous to

more extensive system, the temptation

borrow from

practitioners to

Only the other day,

British India.

this process

this is irresistible.

was

full in

view in

The bulk of the Native Indian law

In whole departments of

was extremely narrow.

affairs,

the

always scanty, and

a larger and
in

occurred

this

was rapidly absorbed.

is

probably never

was the barbarous usage.

theoretical basis,

barous, but the

Roman Law

facts.

and the foreign element in

be obeyed,

to

institutions

the

whole flood

jurisprudence spreading to the ends of

In some countries, the

ceased

see a

to

as of

no rules were found to

which naturally rose up.

And

controversies

settle

the result was that

the bulk of Native Indian law was gradually becom-

ing English through the filtration of rules into

from the more extensive system by

this

went

on, until both the English

its

side.

the

We

And

and the purely

Native law were gradually superseded by the

Indian Codes.

it

new

are not, however, to suppose that

Roman Law came

to be received

by European

LECT.

AND SOURCES

ITS ORIGIN

I.

19

communities through any process resembling

In the history of law,

tion.

legisla-

always essential to

it is

keep in mind the fact that legislatures are of very

recent appearance in

The

modern Europe.

earliest

attempt to distinguish clearly between legislative and

executive power, between legislative and executive
action, has been traced to an Italian writer of the

The powerful

fourteenth century.

bodies from which

many

of the legislatures are descended, assemblies of

great

men

true

legislatures

advising and controlling kings, were not

sionally in the

They

themselves.

making of

assisted

laws, but that

law-making was recognised

as

occa-

was because

important business,

and the duty of these Councils, Parliament or States

General, was
business.

to advise the

In truth,

far the

King
most

in

all

important

influential cause of

the extension of particular laws and of particular

systems of law over

them by

new

literate classes,

areas

was the approval of

by clergymen and lawyers,

and the acquiescence of the

rest of the

in the opinions of these classes.

When

community

we

then

asked by what legislative authority International

came

to be

adopted so as to make

it

are

Law

binding on

particular communities,

we

same question must

be put respecting the exten-

sion of

first

Roman law and

should rejoin that the

of every other system of law

which, before the era of legislatures, gave proof of

possessing the same power of self-propagation.
c 2

20

LAW

INTERNATIONAL

lect.

great part, then, of International

i.

Law is Roman

Law, spread over Europe by a process exceedinglylike that

which, a few centuries

other portions of
stices of

Roman Law

had caused

earlier,

to filter into the inter-

The Roman

every European legal system.

Law belonged, however, to

special province of the Roman system, that which
Romans themselves called Natural Law or, by

element in International

one
the

an alternative name. Jus Gentium.

lished

some years ago on

remark

'
:

'

In a book pub-

Law
Treaty Law

Ancient

Setting aside the

'

made

this

of Nations,

how
is made
law.
Wherever there is a doctrine
up of pure Roman
jurisconsults
affirmed by them to be in
of the Roman
large a part of the system

surprising

it is

harmony with

the Jus Gentium, the Publicists have

found a reason for borrowing

may
I

it,

however plainly

Roman

bear the marks of a distinctively

must observe, however, that the respect

law

as the part of the

it

origin.'

for natural

Roman Law which had most

claims on our reverence did not actually begin with

the international lawyers.

the

Roman law

pose of giving

with the

it

dignity,

The

Law

habit of identifying

of Nature, for the pur-

was of old date

in Europe.

When a clergyman or a lawyer of an early age wishes to

quote the Roman Law in a country in which its authority
was not recognised, or in a case to which Roman Law
was not allowed

When

to apply, he calls

our Edward III. laid

it

'

Natural Law.'

a document before the

LECT.

Pope

AND SOURCES

ITS ORIGIN

I.

21

for the jDurpose of establishing his claim to the

French throne, and of contending that the descendants

of

women may

throne of a male

succeed to the

ancestor,

he

property or

spoke of

himself

Law though in point of

fact the power of women to transmit rights of inheritance to their descendants was pure Roman Law
as

arguing on Natural

of recent origin, and was not specially connected in

Law

any way with the

of Nature.

But though the founders of the system which

at the basis of the rules

of states inter se

were not the

Law

of Nature and the

Gentium,

now

as the

lies

regulating the concerns

first to

describe the

Law

of Nations, Jus Naturae, Jus

most admirable, the most dignified

portion of Roman Law, they speak of it with a precision

and a confidence which were altogether new.

look upon
tests

it

They

as perfectly determinable if the proper

be applied, partly on the authority of express

texts of

Roman Law,

partly

by

a process of inference

from a great mass of recorded precedents.

Its fitness

for international purposes they regard as a discovery

of their own, and some writers of their day speak of

the system as the
its

reality

new

mediaeval lawyer.
sure

No more doubt

seems to have been entertained than

us say) of the English

quite

science.

how

common law by an

It is

sometimes

of

(let

English

difiicult

to be

Grotius and his successors distin-

guished rules of the

Law

of Nature from religious

INTERNATIONAL LAW

22
rules prescribed

did draw a

work, the

'

by inspired

distinction

De Jure

is

lect.

i.

But that they

writers.

Grotius's famous

plain.

Belli et Pacis,' is in great part

composed of examples supplied by the language and

conduct of heathen statesmen, generals, and sovereigns,

whom

he could not have supposed to

we assume him to have

most humane and virtuous of the

of inspired teaching.
believed that the
acts

know anything

If

and opinions which he quotes were prompted

by an instinct derived from a happier

human

of the

state

when it was still more directly shaped

and guided by Divine authority, we should probably
have got as near his conception as possible. As
race,

time has gone on, some parts of this basis of thought

have proved to be no longer tenable.

Grotius greatly

overrated the extent of recorded history and,

more, the accuracy of the record.

tion from

which he

and determinable
application of
inquirer,

still

The very concep-

started, the conception of a real

Law

modern

the actual

of Nature, has not resisted the

To each successive
childhood of the human race
criticism.

looks less and less like the picture which the jurists

of the seventeenth
excessively

century formed of

inhuman

in

war; and

it

it.

It

was before

things enamoured of legal technicality in peace.

nevertheless the system

reconstruction of

it

was
all

But

founded on an imaginary

more and more calmed the fury

of angry belligerency, and supplied a framework to

LECT.

AND SOURCES

ITS ORIGIN

I.

which more advanced

23

of humanity and

princij^les

convenience easily adjusted themselves.

The

effects of

the

'

De Jure

Belli et Pacis/

in respect of its general influence

propositions which

it

laid

both

and of the detailed

down, were exceedingly

prompt and have proved extremely durable.

about the middle of his reign Louis

XIV.

At

of France

adopted two measures by which he was thought to

have carried the severity of war to the furthest point.

He

devastated the Palatinate, expressly directing his

and sword into every corner of

officers to carry fire

the province, and he issued a notice to the Dutch,

with

whom

he was at war,

that, as

soon as the melt-

ing of the ice opened the canals, he would grant no

more quarter to

his

Dutch enemies.

of the Palatinate has

with
at

all historians,

become a proverb of savageness

though

most have been passed

to
all

years earlier

fifty

as a

might even have been defended

the Dutch

The devastation

it

might

measure of severity, or
;

but the proclamation

called forth a burst of execration

from

Europe, and the threat to refuse quarter was not

acted upon.

The book of Grotius was making

itself

and the successors of Grotius assure us that

felt,

was

his

it

authority which deterred the French king

and the French

2:enerals

iD'

from the threatened out-

rage.

But there

is

other evidence of the respect paid

to the details of his system.

Among

the most in-

INTERNATIONAL LAW

24

day are the Manuals

teresting legal products of our

war which

of the usages of
states are

now

a great

number

of civilised

issuing to their officers in the

The Manual prepared

for the

lect.

United States

field.
is

the

oldest of them, but most of them have followed the

attempt to form a Code of Land

War which was made

1874, an attempt

at the Conference at Brussels in

which miscarried principally through

recollections of

the course of the great Franco-German

There

1871.

is

very

much

that

is

war

1870-

remarkable in

this private codification, as I propose to

or two lectures which will follow

in

show

all

in one

but perhaps the

most singular feature of the Manuals

is

the

number of

rules adopted in

them which have been

literally bor-

rowed from the

De Jure

and specially

fi:om its

third

'

book.

Belli et Pacis,'

Eemembering what Grotius

himself says of the condition in which he found the

law and usage of war when he began to write of

and recalling what we learn from

historical sources

of the wars of succession and the wars of religion,

may

Great,

when he

tells

in the wars of his

War and

of Frederick the

us that what struck

day was

their

war Vattel was

to be followed

a severe judge.

I here conclude this

still

him most

extreme gentleness

and of the standard of gentleness proper

there

we

well believe Yattel, the Swiss Jurist, a contem-

porary of the Seven Years'

in

it,

Introductory Lecture, but

remain some points of principle which meet

LEOT.

US

ITS OKIGIN

I.

AND SOURCES

25

on the threshold of International Law, and which

cannot be dismissed absolutely in

In

silence.

my

next lecture I propose to consider the binding force

of International

Law, and with

gravity on which the judges

legal authorities of the

it

a question of

of England

some

and the

United States do not entertain

absolutely identical opinions, and I will state the

in

which

venture to think the various shades of

diiFerence can be got over.

I shall

way

In the succeeding lectures

have to consider a few fundamental topics in

the system before us, and I hope afterwards to give a

which must be brief on account of the narrow

sketch,

limits of

land

my

and

course,

on the law of war by sea and

finally I will

of the duty imposed on

tions,

and to

day seem to

and

to

state

me

endeavour to discharge a part

me by

Dr. Whewell's direc-

what measures proposed

to tend to diminish the evils of

do something towards extinguishmg

nations.

in our

it

war

among

INTEKNATIONAL

26

LECTURE

lect.

ii.

II.

AUTHORITY AND SANCTION.

ITS

In the

LAW

portion of the last

latter

lecture I endea-

voured to establish three propositions, which I hold to

be extremely important to the intelligent study of International
cess

Law.

late stage of the pro-

by which the Roman Law had

Next,

much

I said that this process

what

is

now

also obtained

the same part of the world.

had

little

or no analogy

understood by legislation, but con-

sisted in the reception of a

by

of them was that the pro-

Europe was a

authority over very

to

first

by which International Law obtained authority

in a great part of
cess

The

body of doctrine

specially constituted or trained minds.

contended

in a

mass

Lastly, I

that this doctrine, so spread over

Europe,

consisted mainly of that part of the

Roman Law

which the Romans themselves had

Jus Gentium

or Jus Naturae

called

Law of Nations, or Law of Nature

terms which had become practical)ly convertible.

The inquiry

into the exact

meaning of the phrase

XECT.

'

Law

AUTHORITY AND SANCTION

ITS

II.

of Nature

'

belongs to a different department

of juridical study,

and

think

will be sufficient

it

summarise the views, themselves con-

briefly

if

siderably condensed, which I published

ago in a volume from which

much

so I thought,

which

colour at

afterwards acquired.

it

It

some years

quoted in the

Law

Jus Gentium, or

lecture.

27

last

of Nations, had not,

of the

first

meaning

was probably,

I said,

half as a measure of police, and half in furtherance

of commerce, that jurisdiction was first assumed in

disputes in which either foreigners, or a native and a

In order to obtain some

foreigner,

were concerned.

j)rinciples

upon which the questions

on could be

Eoman

settled, the

to be adjudicated

praator peregrinus

resorted to the expedient of selecting the rules of law

Rome and to

common

to

nities in

which the immigrants were born.

the dififerent Italian

commuIn other

words, he set himself to form a system answering to

the primitive and literal meaning of Jus Gentium, that
is

law common

the

sum

to all

of the

nations.

common

to

be

among

in fact

ingredients in the customs of

the old Italian tribes.

tion of rales

Jus Gentium was

It

was accordingly

a collec-

and principles determined by observation

common

to the institutions

the various Italian races.

remembered that

every

followed public

was

life

Eoman

which prevailed

Now,
of

it

is

position

to be

who

in the course of his official

career not only, so far as his powers went, a statesman.

28

INTERNATIONAL

LAW

lect. rr.

but specially a general and a judge.

upon

legal

among

the

common

manifestly became

principles

Roman

Speculation

aristocracy,

and in course of time

the question suggested itself what was the essential

nature of this Jus Gentium which had at

very

first

The

possibly been regarded as a mere market law.

answer was shaped by the Greek philosophy, which

was
to

which the Roman lawyers belonged.

light of Stoical doctrine the

identified

among

subject of study

a. favourite

number

with the

the class

Seen in the

Law of Nations came to

Law of Nature

that

is

to say,

be

with

of supposed principles of conduct which

man in society obeys simply because he is man. Thus

the Law of Nature is simply the Law of Nations seen
in the light of a peculiar theory.

Roman

Institutes

of Nature

in the

shows that the expressions were

The

practically convertible.

Law

A passage

greatest function of the

was discharged

in giving birth to

modern International Law and the modern Law of

War.
I

ought to observe that in

this account

of the-

Some

matter probably one correction has to be made.

acute scholars have examined the authorities since I

wrote, and they are inclined to think that very anciently

there are some instances of the use of Jus

in a wider
is,

and something

law binding on

ing

that this

is

tribes
so,

like its

modern sense

and nations

still

the

Gentium

as such.

that

Grant-

impression that the

XECT.

AUTHORITY AND SANCTION

ITS

II.

Roman Law

29

contained a system of what would

now

be called International Law, and that this system was

identical

with the

Law

of Nature, had undoubtedly

much influence in causing the

Romans called Natural Law to
identified with, the

Roman

older

rules

of

what the

be engrafted on, and

When

modern law of nations.

the

sense of the words died out cannot be

confidently ascertained, though of course in a world

which was divided between two great

the

rival sovereigns,

Roman Emperor and the King of Persia, there was

room

little

Law

for

of Nations in the true sense of

the words.

When, however,

Gentium or Jus Naturae

Roman

what

at

lawyers give to

hundred

Augustus over

all his

the third century.

number of

world

a strong proba-

was not very

years, covered

Roman Empire was

large

is

which the

ancient, but

by the

so-called

That Peace extended from the time

Peace.

the

There

it ?

Jus

took place during the period, roughly about

it

three

did this

rise into the dignity

bility that this exaltation

that

period,

but

to a jjlastic

its

settled

Roman

at

which

by the success of

enemies to the early years of

The Roman Law transformed

the ideas of a great portion of the

own

transformation from a technical

system was one of the results of the

Roman

so-

to know what war

we should study what peace is, and see what the
human mind is when it is unaffected by war. We
called
is,

Peace.

If

we want

LAW

INTERNATIONAL

80

should study the

Roman

lect.

Peace, during

n.

which the

existing legal conception of the relation of the sexes

framed

itself;

during which

Christian Church

the

Law

was organised, and during which the old

Nations or Nature transformed

system

S23ecially

distinguished

of

itself into

an ideal

simplicity

and sym-

by

metry, and became a standard for the legal institutions of all systems of jurisprudence.

The second proposition

for

which

of very considerable importance.

by the

of Nations, as framed

It

this position

earlier date.

may

by

who were
legislation,

be momentous

its

but

application of International

and

it

world, and from which

on

this

which

at a quite recent date

in danger of adopting an opinion

would have separated

correct ideas

one

the appreciation of

also certain practical consequences

country was

is

depends not only the view taken of the

Law of Nature and of the

Law, but

On

argued

was that the Law

jurists

authors, spread over the world not

by a process of

from the rest of the

our

which

civilised

could only be saved by

it

very point.

In order that you

may

convince yourselves what

might be the consequences of demanding a legisla-^

tive sanction, or a sanction derived from an authority

on a

level

with that of a modern

rules of International

pare the view of

it

Law,

legislature, for the

recommend you

to com-^

taken by the statesmen and jurists

of the United States of America with that to which

LECT.

ITS

II.

this

AUTHORITY AND SANCTION

country might have committed

which

was delivered by the

it

The United

Parliament.

examining

direct intervention of

worth

in regard to the point before us, because

new

nation deliberately

what new obligations

to consider

setting itself

had incurred by determining

is

and from

itself,

States are particularly

they were an instance of a

Italy

31

it

to take rank as a state.

another and a later example, and there have

been some others in South America, but

societies,

made up from

all

these

smaller pre-existing territo-

were greatly influenced by the example

rial materials,

The

of the American Federal Union.

the United States adopted

may be

doctrines which

gathered from some

very valuable volumes which the American Government

has quite recently caused to be published, and to which
I will presently call

your attention.

The systematic

Law are
am going

American writers on International

structive

on the points which

less in-

to place

you than these books, because they usually

follow the order of topics taken up by older European

before

writers.

most

But

careful

I will quote a passage

and sober of

from one of the

writers, Chancellor Kent,

and also from a writer who unhappily died the other

day, and

whose productions were much valued

United States

Mr. Pomeroy.

You

collect that the question at issue

and Americans lawyers was

of International

will have to re-

between the English

less

Law, and how

in the

what
it

is

the nature

arose, than

the

32

LAW

INTERNATIONAL

question how, and to what extent, have

binding on independent

lect.

ii.

become

its rules

These questions are

states.

often confounded together, or found to be indissoluble,

as will be plain from the extracts

which

am

about

to read.

There

Law

concerning the foundation of the

writers

among

has been a difference of opinion

Nations.

of

has been considered by some as a mere

It

system of positive institutions, founded upon consent

and usage

while others have insisted that

same

essentially the

as the

Law

of Nature, apphed to

the conduct of nations, in the character of moral

We

persons, susceptible of obligations and laws.

are

not to adopt either of these theories as exclusively

true.

The most

of Nations

useful

and

practical part of the

founded on usage, consent, and agreement.

would be improper

to separate this

much

of

its

principles of right

nature

force

it

it

as de-

and dignity from the same

the

reason,

and constitution

But

law entu^ly from

natural jurisprudence, and not to consider

riving

Law

no doubt, instituted or positive law,

is,

of

same views of the

and the

man,

same

sanction of Divine revelation, as those from which the

science of morality

and

Law

a positive

is

conduct
volence

and

with other

There

By the

is

faith,

this application of the

a natural

former, every

states, is

with justice, good

itself
;

deduced.

of Nations.

state, in its relations

was

it

Law

bound

to

and beneof Nature

ITS

AUTHORITY AND SANCTION

LECT.

n.

has

been called by Vattel the

internal

them

it

and

necessary

bound by the

Nations, because nations are

Nature to observe

Law of Nations, because

of
of

obligatory upon

it is

We ought

to separate the science of public

Law
Law

termed by others the

it is

in point of conscience.

33

not, therefore,

law from that of

ethics,

nor encourage the dangerous suggestion that govern-

ments are not so

truth, justice,

strictly

bound by the obligations of

and humanity, in relation to other

powers, as they are in the management of their

own

local concerns.
States, or bodies politic, are to

moral persons, having a public

will,

be considered as
capable and free

do right and wrong, inasmuch as they are

to

tions of individuals, each of

into the service of the

whom

carries

collec-

with him

community the same binding

law of morality and religion which ought to control

his conduct in private

life.

The Law

of Nations

is

complex system, composed of various ingredients.

It consists of general principles

of right and justice,

equally suitable to the government of individuals in

a state of natural equality,

conduct of nations

and to the

and

of a collection of usages, customs,

and opinions, the growth of

merce

relations

civilisation

and com-

and of a code of positive law.

In the absence of these latter regulations, the

intercourse and conduct of nations are to be governed

by

principles fairly to be

deduced from the rights and

LAW

INTERNATIONAL

34

duties of nations,

lect.

ir.

and the nature of moral obligation

and we have the authority of the lawyers of antiquity,

and of some of the

masters

first

in the

modern

school of public law, for placing the moral obligation

of nations and of individuals on similar grounds,

and

for considering individual

as parts of one

and the same

Nations, so far as

Natural Law,

upon

all

The Law

science.

equally binding in every age and

is

But the Christian nations of

mankind.

Europe, and their descendants on this

Atlantic,

by the vast

in arts, and

policy

science,

and commerce,

more

brighter light, the

cated to

and,

as well

above

certain truths,

all,

as in

by the

and the more

sanction which Christianity has

communi-

the ethical jurisprudence of the ancients,

have established a
selves.

side of the

superiority of their attainments

and government

definite

of

founded on the principles of

is

it

and national morality

Law

of Nations peculiar to them-

They form together

community of nations

united by religion, manners, morals, humanity, and

science,

and united

also

by the mutual advantages

of commercial intercourse,
alliances

and

treaties

by the habit of forming

with each other, of interchang-

ing ambassadors, and of studying and recognising

the same writers and systems of public law.

This Jus Gentium of the Imperial jurisconsults

identical with the

of

many modern

Law
ethical

is

of Nature, or Natural Law,

and

juridical writers

and

ITS

AUTHORITY AND SANCTION

LECT.

II.

both

are, in fact,

the law of God,

35

made known some-

whole human race

what dimly

to the

and

with unmistakable certainty and trans-

set forth

cendent power in His revealed

the

highest in

This

will.

in truth,

is,

law by which moral beings can be

highest

governed

at all times,

who

Lawgiver,

its

potent over each individual man, as well

societies

and

states

over

as

highest in the absolute perfec-

which

tion of the rules

omni-

is

contains

it

highest in the

commands which

absolute cogency of the

utters

it

highest in the absolute obligation of the duties which

it

enforces

highest in the

and which operate upon the deepest

nature of every
It

must be

and

certainty

power of the sanctions which

irresistible coercive

wields,

absolute

human

it

spiritual

being.

clear to you, I think, that writers

adhere to these opinions

are

who

not likely to trouble

themselves greatly with the question of the original

obligatory force of International Law.

Nations be binding

on

beings on account of

its

Nature or of Gfod,

dition will defer to

the morality of the

question in

But now

let

Law of
moral

Law

as individual

men do

a question of ethics,

legislative sanction

may be

to

The whole

down by Kent, and with

is

of

in a healthy moral con-

Ten Commandments.

fact, as laid

demand of a

derivation from the

them

moderation by Pomeroy,
all

states considered as

when

states

If the

lees

and

discarded.

us turn to the four volumes of the

D 2

INTERNATIONAL

36

LAW

lect.

ii.

American International Digest edited by Dr. Francis

Wharton.

Law

It is entitled,

'

A Digest of the International

of the United States,' and

consists of docu-

it

ments relating to that subject issued by Presidents

and Secretaries of

State, of the decisions of Federal

Courts, and of the opinions of Attorneys-Greneral.

Among
you

the propositions laid

down

will find the following, all of

in these

volumes

them accepted by

the American Federal Government.

^

The law

of the United States ought not,

be

if it

avoidable, so to be construed as to infringe on the

common

principles and

usages of nations

general doctrines of International Law.

and the

Even

as to

municipal matters the law should be so construed as

to

Law

conform to the

of Nations, unless the contrary

be expressly prescribed.

An

Act of the Federal Con-

gress ought never to be construed so as to violate the

Law

of Nations if any other possible construction re-

mains, nor should

risfhts

it

be construed to violate neutral

or to affect neutral commerce, further than

is

warranted by the Law of Nations as understood in this

country.'

Again

Municipal

Law

of the United

'

The Law of Nations is part of the

of separate states.

The intercourse

States with foreign nations

policy in regard to

and the

them being placed by the Consti-

tution in the hands of the Federal Government,

its

by universally

ac-

decisions

upon

these subjects are

knowledged principles of International

Law obligatory

LECT.

AUTHOEITY AND SANCTION

ITS

11.

37

The Law of Nations, unlike

on everybody.

foreign

Municipal Law, does not have to be proved as a

The Law of Nations makes an

Every

of the land.

own

nation,

fact.

integral part of the laws

on being received

her

at

request into the circle of civilised government,

must understand that she not only

attains rights of

sovereignty and the dignity of national character, but

that she binds herself also to the strict and faithful

observance of

all

those principles, laws, and usages

which have obtained currency amongst

and which have

civilised states,

for their object the mitigation of the

miseries of war.

International

Law

is

founded upon

natural reason and justice, the opinions of writers of

known wisdom, and

Here you
International

the practice of civilised nations.'

see that according to

Law has

American doctrine

precedence both of Federal and

of Municipal Law, unless in the exceptional case where

Federal

Law

has deliberately departed from

It is

it.

regarded by the American lawyers as having very

much

the same relation to Federal and State

Law

the Federal Constitution has, and this no doubt

reason

why

in so

Constitutional
first

subjects

is

as

the

many famous American law books

Law and

International

discussed. International

Law
Law

are the

on the

whole having precedence of Constitutional Law.

The

principle

of International
plain.

on which these American doctrines

Law

repose

The statesmen and

is,

I think,

jurists

tolerably

of the

United

LAW

INTERNATIONAL

S8

States do not regard

become binding on
vention of any

International

their country

legislature.

lect.

Law

as

to be of the nature of immeraorial usage,

memory

the

of

They look upon

inter-

believe
'

it

of which

man runneth

not to the contrary.'

rules as a

main part of the con-

its

on which a

ditions

having

through the

They do not

ii.

state is originally received into the

family of civilised nations.

This view, though not

quite explicitly set forth, does not really differ from

that entertained

and

practically that submitted to,

is

it

by the founders of International Law,

and assumed

to be a sufficiently solid basis for further inferences,

by Governments and lawyers

of the

communities of our day.

reign

way

another

it

civilised sove-

If they put

would probably be that the

it

in

state

which disclaims the authority of International Law

places herself outside the circle of civilised nations.

There

is,

however, one community which on one

occasion went near to dissenting from the American

opinion and from the assumptions which

This was our

celebrated

own

case,

it

involves.

country. Great Britain.

In one

only the other day,

English

the

judges, though by a majority of one only, founded

their decision

special

blish

on a very

different

principle,

Act of Parliament was required

the

authority of International

and a

to re-esta-

Law

on

the

footing on which the rest of the world had placed

The

case

was one of great importance and

it.

interest,'

LECT.

and

ITS

II.

AUTHORITY AND SANCTION

was argued before

it

all

Court of Criminal Appeal.

V.

Keyn, but

is

the English judges in the

It is

more popularly

known

as the

called the

'

was commanded by a German

On a voyage from Hamburg

to the

'

German

subject,

West

Queen

Franconia

The ^Franconia,'

Case (2 Ex. Div. 63).

ship,

39

Keyn.

Indies,

when

within two and a half miles from the beach at Dover,

and

less

than two miles from the head of the Admi-

ralty pier, the

as the
'

'

Franconia,' through the negligence,

jury found, of Keyn, ran into the British ship

Strathclyde,' sank her,

and caused the death of one

Keyn was

of her passengers.

and was convicted

tried for manslaughter,

at the Central

Criminal Court

but

the question then arose whether he had committed

an offence within the jurisdiction of English

tri-

bunals.

The point on which that question turned was this.

All the writers on International Law agree that some
portion of the coast water of a country
for

some purposes

of which

it

is

considered

to belong to the country the coasts

There

washes.

is

some

difference

of

opinion between them as to the exact point to which

this territorial water,

a country's
if it

soil,

which

extends.

were sound, must

at

is

considered as part of

This doctrine, however,

some time or other have

been borrowed by the English courts and lawyers

from international authority.

Previous to the ap-

pearance of International Law, the law followed in

40

INTERNATIONAL

England was

different.

The

LAW

lect.

great

ir.

naval judicial

authority was then the Admiral of England, whose

jurisdiction

was over

all

British subjects and other

persons on board British ships on the high seas.

If

the doctrine of the international jurists prevailed, a

change must,
in the law,

at

some time, or

other,

and the point arose

have taken place

whether any

as to

such change could be presumed, and by what agency

The judges were very

could have been effected.

it

nearly equally divided on the point, which

is

a funda-

mental one affecting the whole \iew to be taken of

the authority of International

In the end

it

Law

in this country.

was decided by the majority of the

judges that no sufficient authority was given for

the reception in this country of the so-called International doctrine

but there was no question that this

doctrine was the doctrine of the majority of states,

and the inconvenience of having one

rule for

Eng-

land and another for the rest of the civilised world

was palpably
in,
'

so great that Parliament finally stejDjDed

and in the year 1878 passed what

Territorial

is

called the

Waters Act,' by which the jurisdiction

of the English Courts which had succeeded to the

Admiral of England was declared

jurisdiction of the
to

extend according to the International rule to

three miles from the coast line of England.

In the

course of the judgments which were given, which are

extremely learned,

curious,

and

interesting.

Lord

LECT.

AUTHORITY AND SANCTION

ITS

II.

Coleridge,

who was with

the minority of the judges

used the following language

^

by

My

41

shown

brothers Brett and Lindley have

a consensus of writers, without one single authority

to the contrary,

country

is

some portion of the coast waters of a

considered for some purposes to belong to

the country the coasts of which they wash.

in thinking that

I concur

to be found in

the discrepancies

these writers as to the precise extent of the

waters which
.

that

after

all,

belong to

country

coast

discrepancies,

not serious since the time at least of Grotius

are not material in

this question

because they

all

agree in the principle that the waters, to some point

beyond low-water mark, belong

countries

on

grounds of sense

if

to the

respective

not of necessity,

belong to them as territory in sovereignty, or property,

exclusively, so that the authority of France or Spain,

of Holland or England,

is

the only authority recog-

nised over the coast waters which adjoin these countries.

This

is

established as solidly as

by the very

nature of the case any proposition of International

Law
is

its

can be.

Strictly speaking, "International

an inexact expression, and

inexactness

is

it

is

apt to mislead

not kept *n mind.

Law

its

transgressors.

But there

lawgiver to sovereign states

the power to bind

is

"
if

implies a

lawgiver, and a tribunal capable of enforcing

coercing

Law

it

and

no common

and no tribunal has

them by decrees or coerce them

if


'

INTERNATIONAL LAW

42

The Law

they transgress.

lect.

of Nations

is

ii.

that collec-

tion of usages which civilised states have agreed to

What

observe in their dealings with one another.

these usages are,

whether a particular one has or

has not been agreed

to,

must be matter

of evidence.

Treaties and acts of state are but evidence

of the

agreement of nations, and do not in this country at

least

per

se

bind the tribunals.

does a consensus of jurists

but

Neither, certainly,
it is

evidence of the

agreement of nations on international points

such points, when they
effect,

as part of

arise,

and on

the English Courts give

English law, to such agreement

(p. 153).

Lord Chief Justice Cockburn, on the other hand,

after discussing at length the

views of thirty writers

of different countries and commenting on the differ-

ence between them,

goes

on to remark

'

Can

portion of that which was before high sea have been

converted into British territory without any action

on the part of the British Government or Legislature

by the mere
or even

assertions of writers

on

by the assent of other nations

jDublic
?

law

And when

in support of this position, or of the theory

of the

zone in general, the statements

of the

three-mile
writers
tion

on International

may well

statements

Law

are relied on, the ques-

be asked, upon what authority are these

founded

When

and in what manner

have the nations, who are to be affected by such a

LECT.

ITS

II.

AUTHORITY AND SANCTION

43

rule as these writers, following one another, have laid

down,

signified their assent to

it ?

to say nothing of

the difficulty which might be found in saying to

which

of these conflicting opinions such assent had been

given' (p. 202).

would appear,

It

which

therefore,

from the authorities

have cited that in the two great English-

speaking people of the world, one descended from the

and possibly

other, there prevail two,

three, opinions

as to the obligatory force of International

individual states.

Law

on

The lawyers and statesmen of the

United States of America regard the acknowledgment

of

and submission

duties Av^hich devolve

through the

the international system

to

on every independent sovereignty

fact of its

being admitted into the

Lord Coleridge considers that the assent of

necessary to subject

either

European Powers

a nation

Law, but

to International

it

that in the case of Great Britain and

lised

circle

Among the English judges,

of civilised Governments,

is

as

all

the other civi-

this assent has

by express action or

been given

declaration, or at all events

by non-dissent. Lastly, Lord Chief Justice Cockburn,

while accepting the view

became binding on
festly

states

by

that

their assent to

thought that this assent must

conveyed by the acquiescing state in

character,

Law

International
it,

mani-

somehow be
its

sovereign

through some public action which

stitution recognises as legally qualified to

its

adopt a

Con-

new

LAW

INTEEXATIOXAL

44
law or

new

legal doctrine

by Act of Parliament
Court of Justice.

or

by

that

tlie

Dio-est

foiTaal declaration of a

is

I first

propounded

and that of Lord

the langtiage used

ii,

in Great Britain

The two opinions which

tioned, that over and over again

American

is.

lect.

Colerido-e. thouo-h

somewhat inexact and

case too metaphoricah seem to

men-

in the

me

to

one

express the

doctrine of the whole civilised world outside Great

conform

Britain, and to

which

will presently

to the historical explanation

place before you.

On

the

other hand, the opinion of Lord Chief Justice Cock-

bm-n, which

is

one to Trhich English jtidges. alvrays

busily occupied in interpreting and applying the laws

of this coimtry. are naturally liable, wotild have catised

the oTeatest inconvenience

if it

be part of the law of England.

had been declared

to

It practically is that

the international rules could only have been imported

into our system

which our

by one of the modern processes by

instittuions are changed.

separate alleged rule of International

had

to be

shown

to

In that case each

Law would

have

have been engrafted on our legal

system bv the legislation of Parliament, bv the

alter-

native leoislation. Trithin certain limits, of the Eno-Hsh

Courts, or

by the conformity of the

provable usage.

For

rule with

a simple rule a

some

most compli-

cated rule would have been substituted.

The point immediately

before the English Coiu't

of Criminal Appeal can never arise again since the

iiCT.

AUTHORITY AXD SA^'CTIOX

ITS

11.

passing of the Territorial Waters Act

ceivable, if not likely, that

45

but

we have not heard

of the more general question of principle.

con-

it is

the last

may

say
,

that

seems to

it

me

that tne solution of the difficulty

As

can only be supplied by the historical method.

have asserted

many

times, these systems of law

have

not always been extended over the countries in which

we

they are found prevailing by what

In more ancient times, and

call legislation.

even at

to a great extent

this day, in that Eastern portion of the world in

which so much of the usages of

survive, systems of rehgion

mankind

still

and systems of morals,

them some system of

generally drawing with

gain currency by their

earlier

own moral

influence

laws,

certain

minds being naturally predisposed to receive them

acouiesce

in

them

even

with

Mr.

enthusiasm.

J.

Justice Stephen, in the controversial

calls

'

Liberty,

Equality,

Fraternity,'

passage on the subject.

eloquent

religion lie hid

now and

from

us.

All that

has

an

The sources of
we know is, that
'

again in the course of ages some one sets to

haunting millions of

ears.

It

caught up here and there, and repeated

till

the

music the tune which

is

and

work which he

is

chorus

is

thundered out by a body of singers able to

drown

all

discords and to force the vast unmusical

mass to hsten to them.

Such

results as these

come

not by observation, but when they do come they carry

away

as

with a flood and hurry in their

own

direc-

INTERNATIONAL

46

tion all the laws

affect.'

What

is

LAW

lect.

whom

and customs of those

here said of religion,

ii.

they

true to a

is

certam extent of morality. In the East a body of new

moral ideas

is

legal rules

and

and

its

sure in time to produce a string of

it

said

is

by those who know India

natives well that the production of

want of a

better

name we must

call

what

Code

for

is

favourite occupation with learned and active minds,

though of course in a country which nowadays follows

to a great extent the morality (though not the faith)

of Christian Europe, and receives

regularly constituted
for

new moral doctrines

the

demand

becoming
in the
rules

is

for legal rules

less.

Now,

new laws from

Legislature,

It

enthusiasm

the

ever growing feebler and

accommodated

International

to

Law was

same sense in which many Eastern

were Codes.

them

is

a Code

collections of

was founded on a new morality,

that which had been discovered in the supposed

of Nature, and in some minds

it

excited

Law

unbounded

enthusiasm.

in

The same process had previously been followed

Europe as regards Roman Civil Law. We may

not quite understand the admiration which the technical part of the

there

is

Roman Law

no doubt.

inspired, but of the fact

This process by which laws ex-

tended themselves had not quite died out when the

international jurists appeared,
their

and in point of

fact

system of rules was received by the world very

LECT.

much

AUTHORITY AND SANCTION

ITS

II.

as

system of law founded on morals

No

received to this day in the East.

prepared for

soil

it.

great parts of the

The

clergy,

essentially a

'

De Jure

Belli et Pacis

Law

The appeal of Grotius

to morals

and religion

of Nations

is

almost as frequent

as to precedent,

and no doubt

these portions of the book, which to us have

become almost commonplace or which seem

vant,
it

'

moral and, to some extent a religious^

system.

is

Indeed,

only necessary to look at the earliest authorities

ofGrotius for example, to see that the

it

on

and the result was

it,

atrocities of war.

on International Law, in the

is

it fell

and the sovereigns and

an instant decay of the worst

is

doubt

is

literate classes, the scholars,

statesmen of Europe accepted

it

47

which gained

for

it

much

irrele-

of the authority which

ultimately obtained.

The bulk of these

account, as summary as

lectures
I can

tions of the International

be reasonably settled

my

thing on

some modern

multiply.

me

of such por-

me

ought to say some-

criticisms

of the basis

I think

criticisms to

of

have a tendency to

which

I refer appear to

to be a singular proof of the great authority

in our

to

which have made their appearance

and which

The

it,

system as appear to

course, I think I

Law

quite recently,

make

consist of an

but before I proceed to this

portion of

International

will

day has been obtained by the

Austin on the Province of Jurisprudence.

which

John
They are

treatise of

INTERNATIONAL

48

LAW

lect.

ii.

in fact to a considerable extent a re-statement of his

The scope of Austin's undertaking in this

classical work is often nowadays exaggerated.
He
attempted, by analysis of the various conceptions

positions.

which law in

various senses includes, to select

its

one sense of law in which legal generalisations were

His ultimate object appears to have been

possible.

to effect a scientific rearrangement of law as a Code.

Little unfortunately has been

done

at present, save

perhaps in the German Empire and in India, to carry

out this object

but no doubt Austin did do something

towards the ultimate codification of positive law by

confining his investigation to the various subordinate

conceptions which

probably
tion

the

is

many

make up law

as so understood.

As

of you know, his fundamental asser-

that in every country there

community which can

is

some portion of

force the rest to do exactly

by him the

what it pleases. This is

called

a word on which

necessary as soon as possible

to observe that

it

it is

from that in which

writers

is

it

of view International
;

was

it

employed by the

is

Law

From

In
^

my

next lecture,

Sovereignty

'

as

Austin's point

by disapprobation

chiefly enforced

command

classical

resembled morality more

of acts committed in violation of

resolved into the

Sovereign,'

here taken in a different sense

on International Law.

than law

it

it

could not be

of any sovereign.
shall

contrast this

word

used by Austin and the so-called

'

ITS

LECT. II.

AUTHORITY AND SANCTION

school of analytical jurists with

Law, and

49

use in International

its

specially consider the rights over land

and

water which are asserted by international lawyers to

arise logically

my

In

spoke of the criticisms on

first lecture I

International
'

from the conception of Sovereignty.

Law

conducted by John Austin in his

Province of Jurisprudence Determined

resting

and quite innocuous

times so stated as

if

'

as very inte-

but the results are some-

they showed that Austin had in-

tended to diminish, and had succeeded in diminishing,

the dignity or imperative force of International

Law.

An observation here must be made that one sense of law

is

just as

good and dignified

consistently used.

of law

is

In philosophy the commonest sense

that in which

term can be more dignified

It is

subject of thought

remember

The Eeign of Law.' No

or more valuable than 'law
'

What we have to

meaning of law separate

other senses.

used by such writers as the

it is

author of the book called

as thus employed.

as another, if it be only

it,

is

to keep this

minds from law in

in our

very convenient, when the main

is

positive law, that

that International

connection with

do,

and that

Law
it

we should

has but slender

has less analogy to

commands

the laws which are the

to rules of conduct, which, whatever be their origin,

ii

of sovereigns than

are to a very great extent enforced

bation which attends their

important to recollect

^e

ne2!:lect.

by the disappro-

What

is

most

the points of connection

1
INTERNATIONAL

50

LAW

iect.

which do exist between International

Law and

ii.

posi-

tive law.

Here one cannot but remark that a serious mistake

as to

human

nature

becoming common in our day.

is

Austin resolved law into the command of a sovereign

addressed to a

and always enforced by

subject,

sanction or penalty which created an imperative duty.

The most important

analysis

is

ingredient brought out

by

this

Austin has shown, though

the sanction.

not without some straining of language, that the

sanction

found everywhere in positive law,

is

and criminal.

This

is,

which

in fact, the great feat

he performed, but some of his disciples seem to

draw

the inference from his language that

obey

rules

from

fear of

As

punishment.

fact this is quite untrue, for the largest

rules

men

civil

me

always

a matter of \

number

mere habit of mind.

Men do

sometimes obey rules

punishment which

will be inflicted if

they are violated, but, compared with the mass of

in each
is

of

which men obey are obeyed unconsciously from

for fear of the

it

to

community,

this class is

substantially confined to

criminal classes
stealing or

there

and

for

one

but small

what

refrains

may

from

fears the penalty

must be hundreds or thousands who

without a thought on the subject.

causes

probably,

are called the

man who

murdering because he

men

refrain

vast variety of

have produced this habit of mind.

Early

teaching certainly has a great deal to do with

it

AUTHORITY AND SANCTION

ITS

LECT. II.

religious opinion has

and

it

a vast

is

51

do with

a grieat deal to

it

very possible, and indeed probable, that in

number of

cases

it

is

an inherited sentiment

springing from the enforcement of law by states, and

the organs of states,

nately

Unfortu-

regards positive civil and criminal

habit, so far as

law,

during long ages.

has been shown in our day that the mental

it

may

be easily destroyed by connivance at viola-

tions of rule

and

this is

a long descent from penal

What we have

to

some evidence of

having

its

law once sternly enforced.

notice

is,

the

that

founders

'

Law, though they did not

of International

create

They/

a sanction, created a law-abiding sentiment.

diffused

among

sovereigns, and the literate classes in

communities, a strong repugnance to the neglect or

breach of certain rules regulating the relations and
actions

They did

of states.

this,

not

by

threat-

ening punishments, but by the alternative and older

method, long

known

in

Europe and Asia, of

creat-

ing a strong approval of a certain body of rules.

It is quite true that

some of the reasons given by

Grotius for International

mend themselves
for the first

time

if
;

Law would

not

now com-

they were presented to the mind

but

it

does not do to look too far

back into the origins of law for the reasons of

estabhshment.

Law

is

Much

its

of the beginnings of English

to be found in the Year Books

but

it

would

not be too harsh to say that some of the reasons given

e2

INTERNATIONAL

52
for rules

now

Year Books,

received,
are

The

nonsense.

LAW

which are

mixed with

lect.

to be

found in the

a great deal of sheer

original reasons for the International

rules are possibly to

some extent nonsense

seem to us commonplace, they are often

they are

ii.

they often
rhetorical,

often entangled with obsolete theories of

morals or deductions from irrelevant precedents, and

on the other hand they often assume

cerning what the Divine pleasure

on a particular

is

power of

subject which the ideas of the present day

admit.

by

As

would not

to their expediency, that has to be decided

experience, and experience has,

nounced decisively in
There

dis-

are,

on the whole, pro-

their favour.

however,

defects in International

same time some

at the

Law which

real

are traceable to

the difference between that law and positive law, and

the absence of

developed.

mechanism by which

International

Legislature, and

it still

Law was

suffers

positive

law

is

not declared by a

from want of a regular

Legislature to improve and to develop

it.

It is still

developed by the antiquated method of writer com-

menting on
for the

writer,

no security being nowadays taken

competence or authority of the writer except

vague opinion.

There are really writers who through

conftisedness, or

through natural prejudice, are open

to the implied censure of Dr. Whewell that they

have rather encouraged than diminished the risk and

the evils of war.

International

Law

suffers also

from

AUTHOKITY AND SANCTION

ITS

LECT. II.

the absence of any

ing

its

method of

tenor on some of

its

53

authoritatively declar-

branches, and above

from the absence of any method of enforcing

short of

war or

often formidable

fear of war.

national

its

all

rules

All these are real and

drawbacks on the usefulness of Inter-

Law, and no teacher of International Law can

neglect them. Before the end of this course,

quite immediately, I propose to

consider whether the

mankind points

to

examine them, and to

growing experience of

any new remedies or

of enforcing old ones.

though not

civilised

better

means

LAW

INTERNATIONAL

54

LECTUEE

lect. hi.

III.

STATE SOVEREIGNTY.
I

NOW

propose to occupy you with a group of ques-

tions arising out of a subject of

magnitude
water.

the

much

interest

and

Sovereignty of states over land and

I will first quote a definition of Sovereignty

which would

fairly, I think, satisfy

present day.
the late Mr.

It is

the jurists of the

taken from an excellent book by

Montague Bernard, of which the

title is,

The Neutrality of Great Britain during the American

The definition is primarily a definition
Civil War.'

'

of a Sovereign State.

Mr. Bernard,

'

'

we mean

By
a

a Sovereign State,' says

Community

number

or

of

persons permanently organised under a Sovereign

Government of their own, and by a Sovereign Govern-

ment we mean a Government, however

constituted,

which exercises the power of making and enforcing

law within a Community, and

any superior Government.

positive, the other

and

fche

is

not

itself subject to

These two

factors, the

negative, the exercise of

one

power

absence of superior control, compose the no-

tion of Sovereignty

and are essential

to

it.'

STATE SOVEREIGNTY

LECT. III.

It is necessary to

55

observe that the conception of

Sovereignty went through several changes before

became capable of

it

The view of

description.

this

Sovereignty taken by the earliest international jurists

in the sixteenth and seventeenth centuries appears
to be

nium

taken from

Roman Law.

dominion, ownership.

wrong in saying that these

world as a space of

Roman

proprietors

particularly

We

bottom domi-

should not be far

writers regard the civilised

number of

divided between a

much

Roman Law

from

directly

soil

It is at

tome

of their language
and, as usual,

from those rules of the

is

taken

it is

taken

Roman

system

which the Romans themselves believed to be identical

Law

Many

funda-

mental principles are explained by this view.

Thus

with the rules of the

all States,

As
as

in International

of Nature.

Law,

are regarded as equal.

a writer of the last century said, Russia

is

Geneva

Roman owners

and

in the

it

regarded

same way so would a

set of

be regarded as equal before the law.

Again, International
only,

is

Law

pays regard to Sovereigns

does not regard any other part of the com-

munity any more than a

Roman

tribunal

gard the slaves and freedmen of a

Roman

would

re-

estate.

think too that these jurists, on the whole, regard the

Sovereign as an individual man.

many

of

existing,

them belonged
and specially

It is true that so

to the few

to the

republics then

United Provinces of the

Netherlands, that they were of course aware of the

II
INTEKNATIONAL LAW

56

lect. hi.

necessity of occasionally contemplating the Sovereign

as a corporation

but on the whole the view which

is

at the basis of their conception

is

an individual

is

that the Sovereign

and sovereigns are regarded by these

lawyers as absolute and not merely paramount owners

They do not look

of the states which they govern.

below the existing Prince or Euler, who had been

man

originally a

Sovereignty

exercising despotic power.

at this date

is

Further,

always associated with a

definite portion of the earth's surface.

But Sovereignty, or what corresponded

time most nearly to

with

ideas of older date.

territorial

it

was not primitively associated

it,

these ideas

all

they took the place of other

Thus Sovereignty was not always

was not always associated with

portion of the earth's surface.

in the

work from which

Monarchs

in

a definite

have pointed out,

have several times quoted,

that the older ideas are reflected in the

earliest

in ancient

Western Europe.

titles

of the

These were

Rex Anglorum, Rex Francorum^ Rex Scotorum

King

of the English, King of the Franks, King of the

Scots.

And

history

is

of Scots.'

one

still

of the most pathetic

always

known

figures

to us as the

'

in

Queen

Evidently the fundamental conception was

that the territory belonged to the Tribe, and that the

Sovereign was Sovereign of the Tribe.

The

fact is

that the feudalisation of Europe had to be completed

before

it

was possible that Sovereignty could be

STATE SOVEREIGNTY

LECT. III.

associated with a definite portion of

gation of the process which

we

57

The investi-

soil.

call feudalisation

does

not belong to this branch of Historical Jurisprudence

but there

is

no doubt that in the long run Sovereignty

came always to be associated with the

of this process.

The lawyers on

last

stage

the whole regard

Sovereignty exercised by indi-

Sovereignty as the
viduals,

and the result was extremely important to

Law,

International

assumed individuality of

for the

sovereigns enabled

founders to regard states as

its

moral beings bound by moral

rules.

If the units of

the International system had continued to be what

they apparently were at

men,

it is

doubtful whether that system could have

been constructed, and at

have taken

Some
reflect a

of Mr.
a

tribes or collections of

first,

its

events, whether

all

it

could

actual present form.

of the words in Mr. Bernard's definition

much

later influence

John Austin.

He

upon law

e.g.

that

gives to the position that

Government cannot be controlled by

sovereign

another, an importance which can hardly be said to

The

position

is,

in fact, indispensable in Austin's system.

There

is,

belong to

it

in his view,

an all-powerful portion of every com-

munity which can do what

rest,

and

Law.

in International

it

pleases as regards the

this all-powerful portion or Sovereign is the

author of law.

No

objection can be taken to

the view of Austin's theory

but

it

it

from

should be always

58

INTERNATIONAL

carefully

that Mr.

LAW

legt. hi.

remembered in our branch of jurisprudence

John Austin's

definition of Sovereign tj

is

not that of International Law, though in almost

all

the very

modern

which have dealt with

treatises

subject some confusion between the two

is

this

observable.

Austinian theory that the

It is necessary to the

all-

powerful portion of the community which make laws

should not be divisible, that

power with anybody

it

should not share

its

and Austin himself speaks

else,

with some contempt of the semi- sovereign or demisovereign states which are recognised by the classical
writers on International

of Sovereignty^ though

But

Law.

it

this indivisibility

belongs to Austin's system,

The powers

does not belong to International Law.

of sovereigns are a bundle or collection of powers,

and they may be separated one from another.

a ruler

may

make laws
exercise

administer

civil

for his subjects

power over

life

Thus

and criminal justice, may

and

for his territory,

may

and death, and may levy

taxes and dues, but nevertheless he

may

be debarred

from making war and peace, and from having foreign

relations with

any authority outside

This in point of fact

is

native princes of India

at the present

moment

the exact condition of the

and

states of this

rising in all the

barous portions of the world.

which Germany, France,

territory.

his

Italy,

kind are

more

bar-

In the protectorates

and Spain have

esta-

blished in the Australasian seas and on the coast of

STATE SOVEREIGNTY

lECT. III.

Africa, there is

59

no attempt made to annex the land

or to found a colony in the old sense of the word,

but the local tribes are forbidden

all

foreign relations

As

except those permitted by the protecting state.

was the declared intention of the most powerful

founder of protectorates of this kind, Prince Bismarck,
if

they were to resemble anything they were to re-

semble India under the government of the East India

Company.

As

modern

a matter of fact nearly all the

on International

Law do

divide the

writers

rights floTsdng

Their

from the Sovereignty of states into groups.

distribution of those rights

is

not uniform, and some of

their divisions are more defensible

than others. Grotius

divided the law of which he wrote, as

the

peace;
tion,

not

of his book,

title

into

known from

is

law of war and law of

and writers of our day, following

this distribu-

but falling into an error into which Grotius did

fall,

classify all the rights of states as rights of

war and rights of peace.

make

more general

Some modern

division into

two

publicists

classes

first,

primary rights or absolute rights, and in the second

place conditional

or

hypothetical rights

being the rights to w^hich a state

is

the

first

entitled as

an

independent moral body, or in other w^ords that to

which

it is

entitled during peace

rights being those to

in special

which

it is

circumstances, the

the

entitled

special

conditional

when placed

circumstances

60

INTERNATIONAL

The

contemplated being war.

LAW

lect. hi,

subject of rights and

duties, arising in a condition of war, will be taken

at a different point of this course,

and to-day we

up

will

confine ourselves to the absolute or primary rights,

those which a state possesses during peace.

serve in

modern writers a tendency

I ob-

so to state this

part of the law, and so to argue, as to suggest that

more than those

these absolute rights are nothing

which may be logically inferred from the mere

This

that a state has existence.

in the account of the

same

is

fact

very simply put

which

class of rights

is

given by the author of a valuable work on International

Law, Mr. Hall.

He

says

'

Under

ditions of state life the right to continue

and develop

other classes of rights.

existence gives

to

These are

to organise itself in such

it

may

first,

choose

whatever acts

state

secondly, to do within
it

may

prosperous and strong

priated

territory

and

the con-

manner

dominions

its

think calculated to render

;

to

thirdly, to

as

it

occupy unappro-

incorporate

new

provinces

with the free consent of the inhabitants, provided that

the rights of another state over any such province
are

not violated

regard to the
reside,

first

by

its

Thus with

incorporation.

power or right which

by the nature of the

case,

in

is

alleged to

sovereign

state,

the power of organising itself in such a manner

as

may

it

choose,

it

follows that such a state

may

place itself under any form of government that

it

STATE SOVEREIGNTY

LECT. III.

wishes, and

may

frame

social

its

61

institutions

upon

any model. To foreign states, the political or social

doctrines which may be exemplified in it, or which

may

spread from

This
that to

is

are legally immaterial.'

it,

correct law,

most minds

and in our day

would seem plain

it

do not doubt
that, the con-

dition of Sovereignty being taken for granted, these

riofhts so

But, as a matter of fact, con-

stated follow.

fining ourselves to this branch of state powers,

have been more violently denied or disputed

they were preserved

it is

far less

owing

none

and

if

to their logical

connection with the definition of state Sovereignty,

than from the fact that, from the very

first,

the posi-

tion that they exist has been plainly stated

international lawyers.

have been joreserved

is

tance of International

And

by the

the fact that these rights

a signal tribute to the impor-

Law.

It

happens that the

long peace which extended from 1815 to 1854 was,

both at

its

beginning and at

its

end, all but broken

up by the denial of these simple rights of which

have been speaking.
tinent, after the

succeeded

by

The

pacification of the Con-

overthrow of the French Empire, was

a series

of

movements

instituted

by

communities for the purpose of obtaining Constitutions

that

is,

for

guarding against being remitted

same condition of despotic rule in which the

French Ke volution had found them. All these Con-

to the

stitutions

had

for their object the limitation of the

powers of the King.

of

LAW

INTERNATIONAL

62

Perhaps the most democratic

them was the one known

When

stitution of 1812.

at Cadiz framed

this

King of Spain, was

as the Sjoanish

Con-

in fact the Spanish Cortes

Constitution,

Ferdinand, the

in the hands of the

French

and

Spanish Constitution -makers had to

the

therefore

lect. hi.

contemplate a Constitution suitable to a country from

which the King would

sent.

in

be, perhaps,

permanently ab-

Naturally, therefore, the powers of the

this

King of

Constitution reduced to
Spain,

denounced

very

King were

little.

The

on his return from imprisonment,

but

this Constitution,

it

obtained great

favour in certain parts of Europe, and in 1820 the

King
which
was
a
copy of it.
grant a Constitution

Neapolitans, after a revolution, compelled their

to

Much dismay was

which retained

caused to the Continental Powers

their despotisms,

and the Congresses

of Laybach and Troppau assembled to consider the

danger of the spread of what were then known

^

French

Europe.

principles
It

was

'

from Naples to the

finally

rest

as

of

determined that the Nea-

politan Constitution should

be medified, and that

compulsion should be put on the not very reluctant

King by the arms of Austria.

Great Britain, how-

ever, protested against the decision.

Soon afterwards

the Constitution of 1812 was adopted after a military

rising in Spain

itself.

This led to the assemblage of

the Congress of Verona and to the restoration of the

STATE SOVEREIGNTY

LECT. III.

6^

Spanish despotism, the compulsion on this occasion

being put upon Spain by France.
Before, however, the
up, the current

European peace

had turned in the other direction

by Lord Palmerston, employed

which desired

of nationality

influence to assist

its

to obtain Constitutions.

dition to the desire for popular

In ad-

government the

had now come into play

spirit

and the

mate result was the intervention of Napoleon

Italy

and

now directed

Great Britain, whose foreign affairs were

states

broke

finally

ulti-

III. in

and the destruction of the Italian despotisms.

Therefore

all

the Powers in Europe, during the peace,

did in turn act

upon

from which the

principles

in-

ference

might be drawn that they denied the right of

a state

under certain circumstances to adopt what

political

Constitution

of law in the long

it

pleases

run prevailed

the slightest question that

Of

all rules

nevertheless this rule

it is

of public law

it

nor can there be

of the greatest value.

is

most to prevent the whole of the

the one which does

civilised

world bemg

brought under an iron-bound theory of government.

It

enables theories of government to be tested

by

experinirent in several states,

and prevents any one of

them from overwhelming the

rest

of order or in the
I pass

now

name

m the name

of freedom.

to the second of the rules

have quoted from Mr. Hall.

is

whether

entitled to do, within its

which

Every sovereign

state

dominions, whatever acts

INTERNATIONAL

64
it

may

LAW

think calculated to render

it

lect. hi.

prosperous and

Two consequences follow from this position.

A state may take what measures it pleases for its
and a state may adopt whatever
own defence
strong.

commercial system
its

prosperity.

not

now

denied,

now

national

for

if

has these

state

and would

two

Law

thinks most likely to promote

That a

but nevertheless
not

it

patience

in

which

centuries been affirmed

I think they

of states

is

by

Inter-

would have turned out

Even

moment
by the way

at this

hardly tried

upon the

their neighbours act

principle.

Earely in the history

world have there been such achievements

of military engineering
fortresses

countries.

which

line

as

the

are exemplified

are, it is really

at present

struction.

countries,

in the

long border of the two

Every one of those

fortresses

available for attack as for defence

men

the existence of these rights had

Take France and Germany.

of the

is

thmk, be disputed

not, I

to be full of pretexts for war.

the

powers

just as

is

and knowing what

wonderful that no complaint has

been made of the mere fact of their con-

Take again two dependencies of European

which are

really great countries

on a footing of their own

standiag

British India and

Asiatic

Eussia. These are not countries in which fortresses

are,

or are likely to be, constructed in any large number.

The conditions of climate and other difficulties render

them defences of no great value but either Power is
;

STATE SOVEREIGNTY

LECT. III.

65

engaged at vast outlay in creating a system of

ways within

now

even

its

own

countries

rail-

and we can

see

that any fresh railway constructed within

the border of the one country gives rise at least for

and private complaint on the part of the

criticism
I

other.

national

do not think we can doubt that

Law had

if

Inter-

not been perfectly clear and precise

on the subject of these rights, alleged to flow from the

Sovereignty of states, they would conduce to every
variety of complaint

What

war.

followed by every variety of

really enables

Sovereignty in this

way

states to exercise

their

nothing but the legal rule

is

itself.

So also with regard to commercial systems.

[differ
is

enormously in contiguous communities.

They
There

no question that of old the English Navigation

Laws were bitterly

and

now

there

is

dislii:ed

by

a great part of

a standing

difference

Europe

between a

number of communities on the subject of Free Trade

and Protection, and but for the rule affirming the

lunrestricted right to adopt
jas

country pleases, this difference of economical

jopinion

would undoubtedly be most dangerous.

the law sifands, a state

legislate against
jiand

such commercial system

so far as

may

directly

As

and deliberately

the particular industries of another

we

are concerned

'acquiesced in this principle that

we

we have

so fully

allow our colonies

to exercise the privileges once grudgingly conceded

INTERNATIONAL LAW

66

and

to independent states,

tures

by prohibitory

The third of Mr.

state has

lect. hi.

to exclude our manufac-

fiscal provisions.

Hall's rules states that a sovereign

an unlimited power to occupy unappropri-

ated territory.

Here

was the

source of quarrel in the seventeenth

fertile

is

a very great question, which

and eighteenth centuries, and which perhaps may

assume a new importance in the twentieth.

The

dis-

covery of the American continent and the growth of

maritime adventure gave fresh interest to a subject

which had been

left in

neglected obscurity, and the

rising international system

with rules to meet

national

Law was

it.

The

was not

at

first

ready

tendency of Inter-

first

to attribute an exaggerated impor-

tance to priority of discovery.

It

was thought by

the earlier jurists to be the same thing in principle as

Roman Inventio, the form of occupation by which

under the Law of Nature property was acquired in a

the

valuable object, such as a jewel, belonging to nobody.

But

in our days prior discovery,

considerable respect,

an exclusive

title.

is

though

still

held in

not universally held to give

The United

States indeed have

not unreservedly agreed to the degradation of

discovery from

its

old consideration.

first

In 1843 that

Government protested against the ground taken by

British Foreign Ofiice that a discovery

the

made by

private individual, in the prosecution of a private

enterprise, gives

no international

right.

But the

STATE SOVEREIGNTY

LBCT. III.

67

American Secretary of State in the same despatch

admitted

to be a point not yet settled

it

how

of nations,

rights

of resting

more

distinct

preferred to

known

5.)

But

this inconvenience

upon mere discovery has caused

forms of occupation or annexation to be

Nearly

it.

many

old date, and

dispute

i.

all titles

of discovery are of

of these are matters of historical

while at the same time the world

that

new

titles

now regarded

is

still

allowed that prior discovery,

give legal importance

ambiguous or without

shown

if

On

new

to

acts

validity.

remains of one,

if

It is

established,

may

and signs otherwise

cairn of stones, a

may mean

found on a desolate coast

to have been put

the

terri-

as the best source of title.

tory

flagstaff or the

so well

is

of discovery are rare.

whole, some kind of formal annexation of

nothing

is

by savages gives a

or settled only

(Wharton,

it.

which

far discovery of a territory

either unsettled

right to

by the usage

up by the

but

little

if it

or

can be

first discoverers,

may obtain great significance and importance. All

discovery is now disregarded, unless it be followed by

it

showing an intention to hold the country

acts

as

your own, the most conclusive of these acts being the

planting

upon

some

civil or military settlement.

now drawn between apnew territory who are furnished

great distinction

propriators

with

it

of

a general

annexation,

or

is

special

authority to

efi'ect

the

and appropriators who have no such

F 2

INTERNATIONAL

68

If the state to

authority.

appropriator belongs

it,

and so

on behalf of the

state

lbct. hi.

which the commissioned

should afterwards

good international

appropriation, a

acquired by

LAW

title

ratify

the

would be

also if authority to appropriate

had been originally given.

In

the case of an uncommissioned navigator, something

more than
is

mere formal assumption of possession

For example,

required.

if

body of adventurers

establish themselves in a previously unappropriated

country, declaring

it

at the

same time

to belong to

the state of which they are subjects, this state

ratify their act

complete

but

and
if

of a

possession

declaration,

and the

title is

may
made

an uncommissioned navigator takes

new country in the name of his

sails away without forming a

Sovereign, and then

settlement, the

imperfect

modern doctrine is that

title

ratification,

and

this originally

cannot afterwards be completed by

is liable

meanwhile

to be set aside

by

the independent acts of other sovereigns.

TERRITORIAL RIGHTS OF SOVEREIGNTY

LEcr. IV.

LECTURE

69

IV.

TERRITORIAL RIGHTS OF SOVEREIGNTY.

All the department

I

was occupied

acquisition

been

much

takes place

by

physical

my

last lecture, the

a State of unappropriated territory, has

by the Roman Law.

influenced

may

in the original

new

Law with which

at the close of

phrase occupatio.

that

of International

be described by the

still

The fundamental rule

is

and in the derivative system.

lands

may

contact

What
Roman

the same

In order

be appropriated, there must be

with

them,

or physical

contact

resumable at pleasure, coupled with an intention to

hold them as your own.

The leading precedent

in such cases

troversy as to the status of the

and

as to the

will find

it

mode

in

of American writers.
rise to a

to

war.

The

the con-

Oregon

territory

which that status

set forth at

international treatises,

is

some length

arose.

in all the

You

modern

and more particularly in those

No

dispute

more nearly gave

interests at first at stake

be merely those of competing fur

seemed

companies

LAW

INTERNATIONAL

70
but

impression has not been justified by the

tliis

event.

lect. iv.

The whole

position of the territories in dispute

has been changed by the construction of two great

The Northern

railways.

Pacific

Railway has opened

up the fertile and wealthy lands which were claimed by

the Americans on the south, while on the north the

by Great Britain include the Canadian

lands claimed

province of British Columbia, which has been practically incorporated

with the Canadian Dominion by

the construction of the Canadian Pacific Railway.

should perhaps add that the facts in controversy were

not altogether plain

Captain Gray, from

title,

but

it is

whom

generally admitted that

the

Americans claimed

was the uncommissioned agent of

while Captain

a fur company,

Vancouver, upon whose discoveries

the English claim was

though he assumed

based,

possession of the territory for Great Britain, never

took this step

This, after

It

what

have said of the principles, may

show the

serve to

he heard of Gray's observation.

till

difficulties of

was most wisely

in the Treaty of

Here

let

me

stantly arises

settled

by a compromise embodied

Washington.
observe that one great question con-

upon the appropriation of

discovery or by occupation
affected

by the necessary

completed

upon

coasts,

the question at issue.

acts

territory

what area of land

when they

Settlements are usually

by
is

are properly

first

established

and behind them stretch long spaces of

TERRITORIAL RIGHTS OF SOVEREIGNTY

LECT. IV.

from access to which other

unoccupied territory,

may

nations

shore lands,

be cut off by the appropriation of the

and which, with reference to

creeping inwards from the sea,

as

more or

71

a population

must be looked upon

What

attendant on the coast.

less

in this case is involved

portion of shore

in the occupation of a given

seems to be a settled usage

It

then

that the interior limit shall not extend further than

of the

the crest

watershed.

coast carries with

it

a right to the

but the admission of this right

accompanied by the
of coast
territory
I

whole territory

empty their waters within

drained by the rivers which

;

generally

also

is

on the other hand, that the occupation of the

admitted,

its line

It

is

perhaps

tacit reservation that the

must bear some reasonable proportion

which

said

is

before

claimed in virtue of
that

the

its

extent
to the

possession.

proceedings of several

European Powers give us reason to think that questions

with regard to Sovereignty over

acquired

by occupation may again

sibly not in the present century.

i

however^ that hitherto the

title,

new

countries

arise,

though pos-

It is to

be observed,

which has been put

Germany and France, by

Spain and Italy, has very generally been made to rest
upon the consent of the native indigenous community

forward to lands assumed by

occupying them, or of some sort of Government to

which they are in the habit of submitting.

[question as to the degree in

The

which the occupation of

INTEKNATIONAL

72

LAW

lect. iv.

new land by a savage or barbarous tribe would bar

occupation by civilised settlers is one of considerable
antiquity and of much difficulty, and the way in which
it

has been treated has not been generally thought to

reflect credit

on

civilised explorers or the states to

There

which they belonged.

is

no doubt that

practice started with the assumption that

national

the native indigenous

title

might be neglected on the

ground that the inhabitants found

Roman

countries were heathen.

and

their sovereigns

that

it

new

inter-

were

was the duty of

in the discovered

Catholic explorers

satisfied

states

with admitting

taking possession of

territory to convert the inhabitants to the

Catholic form of Christianity.

Roman

The attempts

of the

Spanish Government to Christianise the Indians of

Mexico and South America appear

to have been quite

honest, and the subsequent sufferings of the aborigines

seem to be attributable to the

duced from Spain.

European

civil institutions intro-

In Spain, as in

countries, at

all

continental

the day of Columbus

and

Cortez there existed the covvk or obligation to labour

gratuitously for the State on roads and other public

works

and the

corvee

was transplanted

American dependencies.

There was

to the

new

in

the

also

mining provinces of Northern Spain a considerable population

who were bound

operations for the benefit

whose

to

work

at

mining

of the proprietors,

and

status very nearly approached that of the slave.

TERRITORIAL RIGHTS OF SOVEREIGNTY

lECT. IT.

73

This quasi- servile status was more widely extended,

and was even found in Scotland at the beginning of

the last century.
that

it

It

was

therefore hardly surprising

was introduced into Spanish America, North

and South, where

it

Queen

of

Isabella

brought about frightful

Castile appears

to

cruelties.

have been

sincerely anxious to abate the cruelty of the Spanish

forced labour
aries that,

tivation

but she was assured by the mission-

when

released

from the obligations of

cul-

and mining, the timid natives retreated into

company of the Spaniards and

Christianity.
Many of you must be aware

the wilds from the

lost their

that the origin of negro slavery in

South America

has been traced to the substitution of a hardier race

for the

weakly native Indians, who were dying in

multitudes.

Perhaps

after nearly four

it is

only just to remark that,

centuries, the

ill-

reputed

Spanish

experiments have in the long run brought about a

nearer assimilation of the white and coloured races

than has been seen in any other part of the world.

There are some Spanish American Republics in which

the whole
tion

community

is

virtually of Indian extrac-

and colour.

In North America, where the discoverers or

colonists

new

were chiefly English, the Indians inhabiting

that continent were

compared almost universally

to

the Canaanites of the Old Testament, and their relation to the colonists

was regarded

as naturally one

of

LAW

INTERNATIONAL

74

war almost by Divine ordinance.

first

This view was

by an English

dissented from

many

lect. ly.

sect to

whom

experiments in the practical application of

humanity are due

the

Quakers

and the agree-

ments made with the Indians of Pennsylvania by

William Penn

whom

he

of

consciences

Nay, further

represented.

has shown
States

the

satisfied

those

observation

a very decided tendency in the United

admit that the land necessary for their

to

be taken away from

not

should

subsistence

the

North American Indians unless in some form

other sufficient
sistence

is

did more

this

of

States, laid

The purely

a very famous American judge,

than any other

early jurisdiction

United

be made for their sub-

by agriculture or by hunting.

legal doctrine

who

provision

or

shape the

to

Supreme Court of the

the

down

man

the British

that

title

to

which the Federal Government

American

territory,

inherited,

excluded the American Indians from

all

rights except the right of occupancy, and gave the

Federal Government the power of extinguishing this

right of occupancy

by conquest or purchase.

the admission that enough land

subsistence of

made by

all

all

savage natives

is

left for

now

the

generally

new territory. As a rule,

moment the tribes or com-

proprietors of

however, at the present

munities found
states

must be

But

on the lands which the European

have taken possession

of,

have passed the stage

TEREITORIAL RIGHTS OF SOVEREIGNTY

LECT. IV.

75

which the American Indians were in when Europeans

first

Prince Bismarck

came into contact with them.

German

has expressly declared that he regards the

annexations as following the example of the British

East India Company.
organised

community

is

it is

found

in possession of the land.

the annexation they

After

assumed that some

Here

retain

whatever rights

they possessed before, save only the right of having

foreign relations with

Up

anybody they

to this point I

jurisdiction

please.

have been speaking of the

and authority claimed by sovereign

states

over certain definite portions of the earth's surface.

The narrow
what

is

limits of

my course

forbid

a very extensive subject.

my

exhausting

It wdll

be more

convenient, I think, that I should leave the remaining

topics
land,

contained in the subject of Sovereignty over

and that I should pass on to Sovereignty over

water, treating

it

very

As

briefly.

before, I

merely

note points of interest and difiiculty which occur as

I proceed.

States in fact are in the habit of exercis-

ing or claiming sovereign authority over portions of

the sea, over lakes and rivers, and over certain vessels

belonging to them or to their subjects

when

lying in

the water of the high seas or in water over

which

they exercise or claim jurisdiction.

The

first

branch of our inquiry brings us to

what, at the birth of International Law, was one of

the

most

bitterly

disputed

of

all

questions,

the

76

LAW

INTERNATIONAL

lect. iv.

question of the mare clausum and the mare liherum

sea

under the dominion of a particular Power or

open to

all

names

tions of Grotius

identified

sea

with the great reputa-

and Selden.

In

all

probability the

question would not have arisen but for the dictum of

Eoman

the Institutional

nature

common

writers that the sea was

And

property.

the

by-

moot point was

whether there was anything in nature, whatever that

word might have meant, which

communit}^ of the sea or of
history

show

to

to a general sense of

Roman

know

rivers,

and

also

what did

have been the actual practice of

mankind, and whether

do not

either pointed to the

it

pointed in any definite way

mankind on the

subject.

exactly what was in the

mind

lawyer when he spoke of nature.

Nor

We
of a
is

it

easy for us to form even a speculative opinion as to

what can have been the actual condition

in those primitive ages

conception of nature.

somehow associated with the

The slender evidence before

us seems to suggest that the sea at

mon

of the sea

first

was com-

only in the sense of being universally open to

The sea of early Greek literature

have swarmed with pirates. But there is

depredation.

appears to

older evidence.

There are some Egyptian inscriptions

which appear to speak of

among

piratical

the small Mediterranean

leagues formed

states

for

making

descent on weak and wealthy maritime communities.

There are some of the names recorded which may be

TERRITORIAL RIGHTS OF SOVEREIGNTY

XECT. IV.

with the

identified

ancient

subsequently famous

and one

suspicion that the famous

of

appellations

77
tribes

cannot avoid the

war of Troy

arose from an

expedition of this kind, whatever other pretexts for

it

may have

there

Whatever

been.

jurisdiction

may

have been asserted probably did not spring from any-

may

thing which
Si

be called nature, but was perhaps

security against piracy.

that the earliest

all

events this

development of Maritime

to have consisted in a

is certain,

Law

movement from mare

may have

whatever that

At

seems

liberum,

meant, to mare clausum.

from navigation in waters over which nobody claimed

authority, to waters under the control of a separate

sovereign.

The

closing of seas

meant delivery from

violent depredation at the cost or

by the exertion of

some power or powers stronger than the

No

rest.

doubt Sovereignty over water began as a benefit to

all

navigators, and

Mr.

tection.

W.

of his volume

ended in taking the form of pro-

E. Hall, in a very interesting chapter

ii.
2), has shown that Intermodern sense of the words, began
general system of mare clausum
the Adriatic,

national
in a

it

Law,

(Part

in the

the Gulf of Genoa, the

were

all

closed

England claimed

North

and were
to

Sea,

under

and the

Baltic,

authority,

and

have precedence and to exercise

jurisdiction of various kinds

Irom the North Sea and

the

adjoining Scotland and

parts

of the Atlantic

Ireland southwards to the

Bay

of Biscay.

In

all

LAW

INTERNATIONAL

78
these waters
British ship

omission to lower the flag to a

tlie

would have been followed by a cannon

Thenceforward

shot.

jurisdiction
liber urn.

national

lect/ iv.

was reversed

And the
Law over

the

progress

of maritime

from mare clausum

Sovereignty

by

allowed

portions of the sea

to mare

is

Inter-

in fact a

decayed and contracted remnant of the authority

once allowed to particular states over a great part of
the

known sea and ocean.

The causes which threw open

maria clausa are not obscure.

there

a large

number

In the

first

of

place

was the opinion of some of the most respected

and authoritative of the founders of International

Law.

For example, the strong opinion of Grotius,

perhaps the most reverenced of

all

these writers, that

the proper doctrine was that of the mare liherum.

Next, and more especially, this opening of seas was

brought about by the discovery of America and the

passage round the Cape of

Good Hope.

nance of the most adventurous

The repug-

states to the extrava-

gant pretensions of Spain and Portugal was quickened

and stimulated by the knowledge, that

their title

was

founded in the main on a partition of the eastern and

western oceans by an

authority

maritime nations, the Dutch

longer reverenced

the

Pope.

which

new

and the English, no

Thus

the

prevailing exclusive maritime Sovereignty

days declined.

the

The English claims

widely
of early

dwindled to

TERRITORIAL RIGHTS OF SOVEREIGNTY

LECT. IT.

79

claims over territorial water close to the coast, and

over portions of the sea interposed between promontory

and promontory

known

as

the King's Chambers,

and over the w^hole of the narrow seas for ceremonial

purposes

these last claims were once so serious that

even Philip

II.

of Spain was fired into

captain for flying his flag

by an English

when he came

into the

narrow seas for the purpose of marrying our Queen

Mary.

The language of the ordinance of Hastings,

buted to King John, was even
If a lieutenant of the

'

the sea

any ships or

much

stronger

attri-

King do encounter upon

vessels, laden

or unladen, that

will not strike or veil their bonets at the

command-

ment of the lieutenant of the King, he

will fight

against

them of the

fleet

if

they be taken they be

reported as enemies, and their ships and goods taken

and

forfeited as the
I

goods of enemies.'

have already spoken of the doubts entertained

by English judges, and expressed in the 'Franconia'

case, as to that jurisdiction

which

is

said to

those opinions be

over three miles or a league

exist over territorial waters.

examined,

it

will

seem that the

doubts chiefly rest on the fluctuations and

difl*erences

<rfview as to the exact extent of territorial water

may be claimed under the

Law.

If

which

general rule of International

In some cases the claim

is

identical with that

of the international writers to Sovereignty for three

INTERNATIONAL

80

LAW

lect. it.

miles over the water next adjoining the shores.

other cases the claim

stand these differences

that

if

In

It is easy to under-

larger.

is

we bring home

to our minds

what took place was a renunciation of

indefinite

for definite claims, entailing generally a contraction

of the extent of sea asserted to be within a given

jurisdiction.

Another survival of larger pretensions

is

the

English claim to exclusive authority over what were

Chambers.

called the King's

the sea cut off

by

lines

These are portions of

drawn from one promontory

from the Land's End

of our coasts to another, as

to Milford

Haven.

The claim has been followed

America, and a jurisdiction of the like kind

is

in

asserted

by the United States over Delaware Bay and other

estuaries which enter into portions of their territory.

more

indefinite

advanced by British

claim was

sovereigns to a larger extent of the water

by

prohibition which they issued against the roving

as the technical

ships of

word was, the hovering of

war near the neutral

of Great Britain.

known
and

as the

this

coasts

the
or,

foreign

and harbours

In more recent times what was

Hovering Act

'

was passed,

in 1736,

assumes for certain revenue purposes a juris-

diction of four leagues

from the coast by prohibiting

foreign goods to be transhipped within that distance

without payment of duties.

again have

copied

this

The United
provision,

and

States here
in

either

TERRITORIAL RIGHTS OF SOVEREIGNTY

LECT. IV.

81

has been declared

country the statutory legislation

by the courts of justice to be consistent with the law

The once extensive but now

and usage of nations.

greatly diminished claims of Great Britain have not

been exclusively of advantage to her.

of the

trace

necessity

amplitude of the old

We

claim

have a
in

the

which Great Britain has submitted to of

on the costly duty of lighting by

great expenditure

lighthouses and in other

ways a much larger extent

of seaway than

under her jurisdiction.

The

is

clearly

jurisdiction of a state over a portion of the

sea nearest its coasts, either as a

Law,

or under the rule of International

claims

by

often said to exist

water

fragment of ancient

is

virtue of a fiction under which

You will find on examining

treated as land.

the opinions of the judges in the

'

Franconia case that

'

the admissibility or otherwise of such a fiction

considerable space in the arguments.

full

fills

Conversely, the

Sovereignty of a state over the portions of land

which

it

rivers

and

Law

is

includes,
lakes,

of Nature.

and which are covered by water,

might be supposed

But

ness of Sovereignty

is

in a river

under the

this apparent natural complete-

limited, as is seen in one case

which has had more than

international writers.

to exist

its

share of attention from

Wherever, as often happens

of great length,

territory of a considerable

it

passes

number

through the

of states,

it

hap.

been asserted that eaeh one of those states has a right

LAW

INTERNATIONAL

82

of navigation to the sea

that wholly foreign

from

its

mouth np

sovereignties.

and

states

it

lect. iv.

has even been claimed

can navigate the river

any one of the

to

co-riparian

such a right

It is the fact that

have described has been exercised in

European

rivers

for

many

centuries,

and

all

as

great

I believe

the reason to be one which every traveller along such

a river as the Rhine will at once understand.

command

The

of a portion of the river was not valued in

former days for the purpose of obstructing or closing

it

its

advantage consisted in the

exacted from a vessel as

it

tolls

which were

passed from one sove-

reignty to another, and the long rivers were burdened

with obligatory payments of this kind down to the

mouth.

on the

Of course the burden was excessively heavy

Rhine owing to the number of semi- sove-

reignties or fractional sovereignties

within the limits of the Empire.

which abounded

In one instance

portion of the Rhine was absolutely closed under a

provision of the Treaty of Westphalia.

or passage through the

was closed
free

Dutch

The

Scheldt,

territory at the mouth,

to every other co-riparian

only to the Dutch themselves.

Power, and was

There was some

pretext for this exceptional rule, because no doubt

this

portion of the Rhine was mainly the

Dutch industry,
gigantic

for the

constructions

work

of

river enters there into the

which have been made by

Dutch engineers and by Dutch labourers

for the

(
Ji

TERRITORIAL RIGHTS OF SOVEREIGNTY

LECT. IV.

of

purpose

territory from the

sea.

recovering

or

protecting

the

83

Dutch

The closing of the Scheldt

was, however, never in favour with the international

writers,

and was

objected

to.

for a great length of time strongly

has a gloomy celebrity, for

It

the forcible opening of this passage

in favour of the Flemings

by the French

and against the Dutch

which led to the entrance of our

the

was

it

own country

into

war of the French Revolution.

Some

writers

on International

that the innocent

navigation,

Law

as

have asserted

the phrase runs,

of a river circumstanced like the Rhine, existed

by

This was controverted by the others, and

nature.

the question

one of the great topics of argument

is

The

Law.

in International

discussion, as sometimes

much embarrassed by
dubious meaning.
Those who

happens, has been

the use of

terms of

denied the

right generally, allowed that there

right to the privilege claimed.

and

'

imperfect right

'

These terms

is

perfect'

Roman

law without a

John Austin has examined these terms

sanction.

imperfect and
'

'

perfect

cases the lawgiver,

tion,

'

descend to us from the

Law, where an imperfect law

was an imperfect

law/ and asserts that in such

though he has indicated

his inten-

has forgotten or accidentally omitted to impose

penalties

on disobedience.

Such a use of words

altogether out of place in International

in that

system there

is

is

Law, because

never any direct sanction,

G 2

LAW

lect. iv.

no common sovereign.

Consequently

INTERNATIONAL

84
since there is

imperfect law

'

'

and

imperfect right

'

have gradually

attained a different sense in later International Law.

Sometimes the words were used to imply that

would be

and reasonable

fair

claimed, sometimes
state alleged to lie

to concede the liberty

seems to have meant that

it

its

convenience as to the method of concession.

of

expressing

the

always been followed,

fuse

own

If this

doctrines

conflicting

it is

for practically settling

will

had

a not inconvenient basis

Many

the question.

states

acknowledge an imperfect duty which would

to

under an imperfect obligation may

concede the privilege, but might consult

way

it

allow a perfect

right in

re-

any sense of the

words.

On
the

by

this

basis,

however, that of imperfect

passage of rivers
treaty.

has

right,

been largely regulated

The Rhine and the Elbe were

placed

under special regulations in 1814 and 1815,

the close of the great war,

along
sea.

their

by which

all

after

the states

banks had a right of access to the

In 1828 there began a violent dispute between

England and the United States

navigating the

St.

Lawrence.

in point of fact the outlet

power

of

Lawrence

is

as to the

The

St.

by which the water of the

great lakes or fresh-water inland seas escapes from

the continent of America into the Atlantic.

England

claimed, as owner of the territory near the mouth,

to

TERRITORIAL RIGHTS OF SOVEREIGNTY

LECT. IV.

close the St.

Lawrence

though she never

On

power which she assumed.

the

exercised

at pleasure,

85

the

other hand, the United States, as sovereign owners

on some of the great

of valuable territory abutting

assumed a

lakes,

free right of navigation to the

mouth

Both Powers claimed more

of the St. Lawrence.

The language of the

than they hoped to obtain.

English Foreign Office assumed that England had

a perfect right to forbid the navigation of the river.

The United
river

States

was open

seemed to assert that the whole

tors of all civilised states.

in

and perhaps to naviga-

to themselves,

The controversy ended

1854 much in the same way as the disputes about

passage

down

the Ehine, and

the

principles

here

applied were shortly afterwards applied to the great

rivers of

South America.

They were

all

open, the Parana, the Uruguay, and the

thrown

Amazons.

This liberality perhaps was more due to an increased

commerce than

perception of the advantages of

to

the adoption of either one or other of the alleged

Law.

rules of Liternational

In

the legal view of the matter

states

all

cases,

however,

that the riparian

is

have assented to an arrangement based on an

imperfect right.
I
I

j'

have spoken at

the

close

of

my

in

Law which have

base.

the

fiction

most

fiction

celebrated

for

among

lec-

International

ture of the intricate controversies

last

Perhaps

international

lawyers

is

A man

lect. iv.

The

that of ex-territoriality.

fiction of

founded on a metaphor.

in fact

ex-territorality is

is

LAW

INTERNATIONAL

86

in a foreign country or a ship in foreign waters

conceived as

still

within the limits of the original

sovereignty to which he belonged.

Sometimes,

has been

as

said,

the ship

is

conceived

it

portion

of the sovereign state floating about in the high sea

The word seems

or elsewhere.

to

have been

origi-

nally used to describe the privileges of ambassadors

and

in foreign states,

it

describes

and on the whole as accurately

The main drawback

legal discussion

is

them

as a

vividly

as

metaphor

can.

to the use of such metaphors in

that men, and particularly lawyers,

begin in time to conceive the metaphor as having an

existence of

its

own, and they make

the starting

it

new inferences which themselves are

point for

often

metaphorical.

This peculiarity remarkably distinguished another

employment of the
ing.

The

jurists

figure of

of

which

denied

by

waters of another
others,

speak-

some nations contend

the ships of a state are ex-territorial

territorial

am

when

This

state.

and various very

that

in the

is

again

difiicult

ques-

tions have arisen in quite recent times through the

ambiguity of the terms employed.

an example of

this the

We may

take as

controversy which arose four-

teen or fifteen years ago as to the duty of captains of

ships of

war

in regard to fugitive slaves.

Ships of

LECT. IV.

TERRITORIAL RIGHTS OF SOVEREJGNTY

87

Government were constantly lying

in the

the British
territorial

seas

water of independent states in the Eastern

Gulf within the

for example, in the Persian

territorial

water of Persia or within the

water of Turkey.
territorial

state to

If a

territorial

Man-of-War lying

in its

water was under the jurisdiction of the

which the neighbouring coast belonged, one

treatment of a very difficult case was incumbent on

her captain which would become wholly different

if

ship-of-war remained within the territorial water of

the state

whose

flag it

was

This case was

flying.

that of the fugitive slave escaping to a British

of-War.

It

frequently arose, for

known among

the coast that

pay any regard

the English laws did not allow or

the status of slavery.

was generally

it

the populations near

Man-

If the ship

to

was within the

law of the neighbouring territory, there could be no

up again

question that the fugitive should be given

to his master.

On

the other hand,

subject to the law of the country

under, then
carry

it

away the

if

the ship were

whose

flag

it

sailed

became the duty of the captain to

fugitive

and to put him on shore in

some place where he would not be again reduced to

slavery.

to

Conflicting reports reached this country as

what was the practice

in these

seas,

and a large

commission, consisting chiefly of lawyers, was appointed for the

tice

purpose of determining the prac-

and deciding what the law ought to

be.

The

INTEKNATIONAL

88

may

discussions which followed

those in the

'

LAW

be compared with

Franconia case for the number of

'

of International

Law which

they included.

long run the commission came to

Some

of

them thought that

water was for

British

lect. iv.

an agreement.

a British ship in Turkish

purposes ex -territorial and under

all

Others thought that

Sovereignty.

it

was

under the Sovereignty of the Turkish

for the time

But

Government.

it

by the commissioners

was unanimously determined

that,

whichever view prevailed,

a British officer could not lawfully be called

*f)

topics

In the

upon

give up a fugitive in any case where the result

of surrendering

him would be

to expose

him

to

ill

usage.

What

have said applies to Men-of-War, to public

ships flying the flag of their

own

fiction of ex- territoriality has

had a wider scope than

when
war

applied to such ships.

at

the

sovereign, but the

All through the great

beginning of the century the

States maintained that even private vessels

United

ought

to

be considered as ex -territorial and as retaining the law

of the country to which their owners belonged.

pretension was stoutly combated

The controversy
of the British

really turned

Navy

by impressment

in

by Great

on one peculiar

in those days.
its

own

This

Britain.

practice

Being manned

country,

its

captains

sought to supply insufficiency in their crews by

LECT. lY.

TERRITORIAL RIGHTS OF SOVEREIGNTY

89

examining the ships of neutral nations which they

them any

met, and taking out of

sailors

They argued

found to be of British nationality.

(and that this

is

the rule

we

who were

shall see hereafter) that

evry private neutral ship on the high sea

is liable

may

to be searched in order that a belligerent vessel

be satisfied that there are no goods belonging to an

enemy on board.

For

this

purpose a British captain

had the right of entering a friendly neutral ship

being there lawfully,

it

sailors

tion of the neutral ship

Britain.

No

dispute

and

was argued by the British

lawyers and Courts that he could take

remove to his own ship

away and

engaged in the naviga-

who were

subjects of Great

was ever more violent than

this,

and it led directly to the war between the United States

and Great Britain which began in 1814.

It is

happily

not probable that any such dispute will occur again,

although there

is

no absolute impediment

vival in the decisions of Courts or in

pressment
ment, and

is

if

compelled to

now
in

to its

law books.

re-

Im-

given up by the British Govern-

some future war Great Britain

supply

its

ships with

is

crews through

compulsion, resort will almost certainly be had to

some other expedient.

may have

to

It is

not impossible that

copy the system which

is

we

in force in

France and Germany, of a conscription confined to

the maritime population.

It

should also be borne in

90

LAW

INTERNATIONAL

mind

that in the

lect. iv

Men-of-War of our day, which

machines of the highest elaborateness and

are

delicacy,

worked by steam and hydraulic power, the numbers

of the crew relatively to the size of the vessel are

much

smaller than they were in the early maritime wars of

the century, so that the probability of the ship being

placed in real difficulty from the insufficiency of her

crew

considerably diminished.

is

The extreme form

of the fiction of ex -territoriality

which the Americans put forward in respect of private

ships

is

thus not likely to be advanced again, because

the provocation which elicited

recur
I

shall

and indeed

if

have to say

it

is

very unlikely to

an American proposal on which

much

hereafter, that all private

property on the sea shall be exempt from capture, were

to be adopted

by the general agreement of

nations,

the ex -territoriality of merchant shi]3s might possibly

be expunged from International

Law by international

agreement, because the rights of visiting and searching

neutral merchant ships in time of war would disappear

of themselves.

But

it

must be understood that

at

present this claim to ex-territoriality has never been

formally negatived or set aside.

The

treaty between

Great Britain and the United States which closed the

war of 1814 says nothing on this subject or on the subject of the grievances

claim,

and

which were the foundation of the

suppose that an American lawyer would

TEKRITORIAL RIGHTS OF SOVEREIGNTY

LBCT. IV.

by the

be bound
to assert
it

it,

own National Courts

What I have said,
abstractedly.

decisions of his

at least

be

will

seen, applies

With regard

91

to private

solely

vessels.

Men-of-War, there

to public vessels,

is

nearer approach to uniformity of practice and

much

On

doctrine.

the whole, the position that a public

ship flying the flag of the sovereign of an independent

country

under the law of that country, even when

is

in the territorial waters of another country,

by the Courts and lawyers of the

a distinction

is

drawn between

accepted

is

But

civilised world.

acts of

which the con-

sequences begin and end on board the ship and take

no

externally to her, and acts done on board

effect

which have an external operation.

the jurisdiction of the sovereign to

belongs

is

whose waters the ship

but

Government which

The

cases

may

is

it

is

first

may demand

redress

must be demanded from the

One

territorial

sailor

on board a Man-

water shoots another

or

from the deck of the ship and

the captain

offender as the law

permit.

lying

native of the neighbouring country.

case,

the ship

be illustrated by occurrences which

a sailor fires a rifle

kills a

whom

sovereign owner of the vessel.

have actually happened.

of-War lying in

first case

In the second, the sovereign in

exclusive.

for the illegahty,

In the

may

In the

deal at once with the

and usage of his own country

In the second, he must wait until a demand

is

LAW

INTERNATIONAL

92

made upon

his sovereign.

lect. iv.

have already men-

tioned the exceptional case of a fugitive slave taking

refuge on board a foreign public ship in territorial

water.

The

decision of the commissioners did not

settle

any

which

is sufficient

principle,

but established a working rule

for the occasion.

IBCT. Y.

NAVAL OR MARITIME BELLIGERENCY

LECTURE

93

V.

NAVAL OR MARITIME BELLIGERENCY.

To sum up what

have been saying.

have been

discussing certain legal fictions which are signified

through legal metaphors, and especially one of them

by which places and things not actually within the

territorial jurisdiction of a state

are supposed to be

within that state for the purpose of collecting into a

group the rules of law which apply to them.

fiction of ex-territoriality, is applied

sent to the residences

diplomatic

This

by general con-

and persons of ambassadors and

agents in foreign countries, and on the

whole the law on these subjects

sufficient accuracy

by

is

expressed with

By most

the fiction before us.

nations the fiction is also applied to the portions of sea

adjacent to the coast and

deemed

to be

what

the territorial waters of a particular state

say, water which, so far as

land,
ally,

is

that

regarded as part of the state's territory.

is

called
is

to

water can be assimilated to

by some communities

high sea

is

Fin-

merchant ship on the

alleged to be ex -territorial

to be in the

INTEENATIONAL

94

LAW

lect. v.

same position

as the territory of the country to

she belongs.

In this

last

way

which

the fiction before us

has become mixed with a very important branch of

and

law, the law of Naval Belligerency,

I use

it as

convenient point of transit to that subject which

might take up
which

at several places in these lectures, but

wish to include in

several cogent reasons.

this portion of

them

for

province of law which

It is a

rose into extreme importance at the end of the last cen-

tury and the beginning of the present

been, and
it is

still

is,

the field of

many

it

has long

bitter disputes

a part of International Law in which a great reform

has recently been attempted

and though the attempt

partially miscarried, the cause of failure deserves our

attention on a variety of grounds

it

sheds light on

certain weaknesses of the international system, and

raises a

of

very serious question as to the true interests

England

in a reform of that

system which

all

but

obtained the assent of the civilised world.

I proceed, therefore, to deal

time belligerency in

and

effects

on belligerent Powers

The elements of

and on neutrals.
simple.

its

with naval or mari-

When two

states

go

the subject are

to war, the ships, public

private, of one are, relatively to the other, so

articles

of movable

property floating on the

The capture of one of them by

belligerent

is

many
sea.

a ship of the other

iirima facie regulated by the same prin-

ciple as the seizure

on land of

a valuable

movable by a

LECT. V.

navAl or maritime belligerency

soldier or

body of

The law on the

soldiers.

descends to us directly from the

property of an

enemy

is

95
subject

Roman Law.

The.

one of those things which the

Roman Law

in one of its oldest portions considers to

be res nidlius

no man's property.

just as a wild bird or wild animal

it

with the intention to keep

laid

down

that a wild animal

the property of the captor

is

it

if it

It

may

taken,

is

but

it

is

be taken

by

seizing

expressly

escapes ceases to be

and the question

is,

when

the captured property so reduced to possession as to

make

altogether the property of the captor

it

There was much dispute on

interpreters of

Roman Law.

this point

among

the

Some, including Grotius,

maintained that the proper test was time, and the

thing had to be possessed

be seen in

power of the maritime captor

to destroy

trace of this rule

the vessel which he has taken

bringing
rule of

the

it

into a port.

Roman

first

for four-and-

may

twenty hours.
the alleged

by the captor

when he has no means

There

is,

of

however, another

origin which has gradually supplanted

The captor must take the

mentioned.

cap-

tured property infra prcesidia^ within the fortified lines

of a

Roman camp.

This applied to maritime warfare

means nowadays

at sea a port of the captor's country,

as distinguished

from an open roadstead, or the port

of an ally of the captor or the port of a neutral Power.

As

it is

sometimes put, the ship must be taken into

military possession

that

is,

into a possession from

INTERNATIONAL

96

which

But

it

LAW

cannot be rescued otherwise than by

in order that the captor

may have

The captured ship and

enemy but found

its

Till this

cargo, or cargo belonging to

in a neutral ship,

condemned

before a prize court and

force.

the full benefit

must be satisfied.

of his capture, yet another condition

the

lect. v.

must be taken

as lawful prize.

condemnation has taken place the purchaser

of the captured property could not be sure that he had

a complete

title to it,

he sold

for it if

to

some extent, recognise them

is

pal law, and

state in

it is

by

it

its

with the duty of

established

is

object

is

prize or

is

are valid captures.

no

prize.

to satisfy the conscience

of the sovereign that the captures

jects

positive munici-

entrusted by the sovereign of the

deciding whether ship or cargo

In the abstract

Law does,

but in principle a

a court established

which

value

sometimes called international

and no doubt modern International

prize court

full

it.

Prize courts are

courts,

and could not obtain

He

is

made by

his sub-

always, in theory,

But the great

supposed to be responsible for them.

practical function of a prize court

is

to decide be-

tween the belligerent sovereign's subjects and subNeutral goods

jects of neutral states.

may form

part

of the cargo found in the enemy's ship which has

been legally captured

the other belligerent

or, again,

cargo belonging to

may have

been found on the

high sea in a neutral ship

into port

may have

or, again,

the vessel brought

been unlawfully captured through

NAVAL OK MARITIME BELLIGERENCY

LECT. V.

97

having been in the territorial waters of a nentral

by an attack organised

or

state,

such territorial

in

In both of these cases capture

waters.

If the belligerent sovereign

is

forbidden.

permitted them, he would

be guilty of an injury to an unoffending neutral.

The capture of ship or cargo belonging

by the armed ships of the other

ligerent

fortune of

war

nor can the captor

is

to one bel-

part of the

much complain

of

having to bring his prize into a port for condemnation.

So

far as the

ship

'

ransoming.'

mise a definite

ment which is
duplicate.

the
this

is

concerned, this hard-

somewhat mitigated by the

is

called

captured vessel

The commander

sum for
called a

Ransom

willing to pro-

drawn

It is

Bill.'

officer takes

commander of the captured

bill

what is

ship or cargo prepares a docu-

The capturing

ransom

practice of

one copy, and

ship another

and

operates as a safe- conduct to the

captured vessel on her voyage to a separate port.

immunity from

So

of the other belligerent, she

far as relates to cruisers

enjoys

in

their

power of capturing her

unless she has varied her course so as to raise suspicion

of an intention to escape.

The

real hardships of capture

large part of the

world

is

at

not, even

are those affecting neutrals.

sea, to

which

now, reconciled,

If an enemy's ship at

sea contains neutral cargo, the neutral

must submit

to

have his goods taken into port for adjudication, and

must of course forego opportunities of obtaining a

INTERNATIONAL LAW

98

lect. v.

favourable market, though his goods are not Hable

to capture.

If a neutral

enemy's cargo,

the

ship

must submit

captain

have

to

These rules are of much

They are found in one of those treatises

goods transhipped.

his

antiquity.

which are authorities on

which
the

contains admittedly

'

International

Law, but

are older than its recognised beginning.

Consolato del Mare,' which

In

supposed to contain

is

the maritime usages of the seas which formed part of

the Mediterranean basin, there are various laws with
reference to the capture of neutral ships

and neutral

cargo, and enemy's cargo in neutral bottoms.

seas were, in the days in
full

These

which these usages grew

of small commercial ports,

up,

manufacturing and

all

exporting, and not situated at great distances from

one another.

The

discussing exactly
certain

number

and that
is

origin of the rule which

fits

in

we

are

with the relations of a

of small sovereignties of this kind

this is really the origin of the rule before us

indicated

by provisions

relating to the interruption

of voyage, as for example by rules compelling the

neutral ship to change her course for the port of the
captor,

and providing that she

shall

have compensation

The condition of these seas

have sketched a number of small towns

for her loss of time.

which

engaged in actual commerce, but not

sejoarated from

one another by any great length of sea

explain this ancient maritime law

goes

far to

but as one mari-

NAVAL OR MARITIME BELLIGERENCY

LECi. V.

9^

time Power and another grew in strength and came to

value the advantages of neutrality, the discontent with
these old rules began,

and a desire arose

general and simpler system.

One, in

fact,

for a

more

which grew

up was looked upon with much favour.

often

It is

denoted by a sort of jingle which does not convey a

real

antithesis

'

Enemy

may

enemy goods

free

All the cargo found in a hostile

ships, free goods.'

vessel

ships,

be made prize

the vessel itself belong

if

goods shall be treated as neutral

to a neutral, all the

property and shall not be liable to capture.

France

was on one side with a severe rule confiscating the

neutral ship

while the
neutrals,

when any

Dutch were

and

finally

hostile cargo
for a

was

carried in

it,

system more lenient to

France herself became patroness

of this rule.

Many

civilised states
or

have

been

negotiated between

which embodied

either both these rules

treaties

one of them

but

still

the rule which enables the

belligerent to capture hostile cargo wherever he finds

it,

was on the whole that which lay

International

Law.

The

a general reform of this principle

the

close of the

Crimean war

Powers which had taken part

in,

was undertaken
and

time law in time

of

of

in

at

1854 the

or had been most

directly interested in, that war, issued

the Declaration of Paris.

at the base

first serious attempt to effect

what was

called

After reciting that mari-

war had been the

subject

of

INTERNATIONAL

100

deplorable disputes

gave

to

rise

LAW

lect. v.

that the uncertainty of this law

differences

of

which might

opinion

occasion serious differences and even conflicts, the

plenipotentiaries at Paris, seeking to introduce into

international relations fixed principles on the subject

before

them, declare that they

summary

following
see

into

carried

abolished

have

adopted the

of the rules which they wish to

practice

second, the

First,

neutral

privateering

is

flag covers enemy's

goods with the exception of contraband of war

goods, with the exception

third, neutral

of

con-

traband of war, are not liable to capture under the

enemy's flag

fourth, blockades in order to be bind-

ing must be effective

by

that

is

maintained

to say,

a force suflicient really to prevent access to the

coast of the enemy.

rule, free ships

The

net result shows that the

make free goods, was adopted

but the

other rule which has so often been coupled with

enemy

ships

make enemy goods, was not

This Declaration was adhered to by

who had joined

awhile that

it

in the

would

adopted.

all

Crimean war, and

it

the Powers

seemed

for

receive the assent of the whole

of the civilised world, thus forming the

example of

it,

a reform of the

Law

first great

of Nations resting on

the basis of expressly pledged faith instead of the

older foundation of precedent and ancient rule.

on the Declaration being submitted

States, the

to the

But

United

Government of that country objected

to

LECT. V.

NAVAL OR MARITIME BELLIGERENCY

the

article,

first

vateer

is

'

Privateering

101

abolished.'

is

pri-

an armed private ship commissioned by a

belligerent sovereign to depredate

of his enemy, and rewarded

by

on the commerce

a share of the capture,

which in recent times has amounted nearly to the

whole of

it.

The reason given

for the refusal of the

United States by Mr. Marcy, the Secretary of State,

was plausible enough

^

The United

States consider powerful navies

and

permanent establishments to

large standing armies as

'

be detrimental to national prosperity and dangerous

to civil liberty.

burdensome
a menace

to

The expense

to the people

peace

among

of keeping

them up

they are in some degree

nations.

large force

ever ready to be devoted to the purposes of

temptation to rush into

States

The

it.

is

war

is

policy of the United

has ever been, and never more than now,

adverse to such establishments, and they can never be

brought to acquiesce in any change in International

Law which may

tain a

of peace.
.

render

it

necessary for them to main-

powerful navy or large standing army

If forced to vindicate their rights

in time

by arms,

they are content, in the present aspect of international

relations, to

rely

in

military

operations

on land

mainly upon volunteer troops, and for the protection

,

of their

commerce

in

no inconsiderable degree upon

their mercantile marine.

,

prived of these resources

it

If this country were de-

would be obliged

to change

INTERNATIONAL LAW

102
its

lect. 7.

policy and assume a military attitude before the

world.

In resisting an attempt to change the

may

ing maritime law that

looks beyond

its

own

produce such a

interest,

dominant naval Powers.

spect

is

result,

and embraces

view the interest of such nations

exist-

in

it

its

as are not likely to be

Their situation in this

similar to that of the United States,

re-

and

to

them the protection of commerce and the maintenance

of international relations of peace appeal as strongly
as to this

country to withstand the proposed change

in the settled

Law

To such

of Nations.

nations the

surrender of the right to resort to privateers would

be attended with consequences most adverse to their

commercial

prosperity

advantages.
'

It certainly

without

any compensating

ought not

prise that strong naval

excite the least sur-

to

Powers should be willing

to

forego the practice, comparatively useless to them, of

employing

Powers

upon condition

privateers,

agree to part with their

most

of defending their maritime rights.

that

effective

It

is

weaker

means
in

the

opinion of this Government to be seriously appre-

hended that

if

the use of privateers be abandoned, the

dominion over the seas

Powers which adopt

of keeping

up large

will be surrendered to those

tlie

policy and have the means

navies.

The one which has

decided naval superiority would be potentially the

mistress of the ocean, and

by

the abolition of priva-

NAVAL OR MARITIME BELLIGERENCY

tBCT. V.

teering that domination

103

would be more firmly secured.

Such a Power engaged in a war with a nation inferior

in naval strength

security
after

would have nothing

and protection of

commerce but

its

ships of the regular

the

to do for the

navy of

its

to look

enemy.

These might be held in check by one-half or less of

its

naval force, and the other might sweep the com-

merce of

its

enemy from the

ocean.

Nor would

injurious effect of a vast naval superiority to

much diminished
among three or four

be

states

shared

the

weaker

that superiority were

if

great Powers.

It is

un-

questionably the interest of such weaker states to dis-

countenance and

resist a

measure which

fosters the

growth of regular naval establishments.'

It is

opinion,
vailed,

States

at the

though

same time

to be

this

had not always pre-

intelligible,

and that early in

remarked that

United

their history the

had negotiated, through Benjamin Franklin,

by which

treaty with Prussia in 1785

lated that in the event of

commission privateers.
president of the

On

neither

was

stipu-

Power should

the other hand, an early

American Union, Monroe, had

down

that

upon

private property

it

war

it

was unworthy of

when

result of the refusal of the

civilised states to

in transit at sea.

laid

prey

The

United States to assent to

the Declaration of 1854 was that this Declaration has

not become part of the general law of other

tions, for

the

assent of a

state

which

is

civilisa-

perhaps

INTERNATIONAL LAW

104

lect. v.

destined to be the most powerful in the world, and

most powerful neutral

certainly the

has been withheld from

Government expressed

But the United

it.

its

willingness

modified form of the Declaration,

perty

at

sea

state in the world,

States

to join in a

if all

private

President Monroe had argued that it ought to be

there

is

pro-

should be exempted from capture, as

good reason to believe that

of the Declaration

would agree

if

the signataries

to this

private property, the United States

and

exemption of

would withdraw

fl

their objection to the abolition of privateering.

The

first

in a dispute

article of the

Declaration was invoked

which arose between the French and

Prussian Governments, then at war, during the con-

The Prussian Government, soon

test of 1870.

merged

in that of

teer navy.

Germany, proposed

All German seafaring

to be

to raise a volun-

men were

to

ofi*er

themselves for service in a Federal navy for the whole

period of the then

proceeding war.

Government objected

The French

to this as a breach of the first

article of the Declaration.

They declared

a species of revival of privateering.

that

Some

it

was

writers,

including Mons. Calvo, and to a certain extent Mr.

Hall, have supported these views

of the

service

proposed

example the necessity

to

but some conditions

be established, as for

for the volunteers

uniform, the incorporation of the

new

wearing a

force with the

existing navy, and an oath to articles of war, seem to

NAVAL OR MARITIME BELLIGERENCY

LECT. V.

me

105

to take these naval volunteers out of the class of

As

privateers.

a matter of fact, the Decree

was never

practically acted upon.

It will

be seen from the text of the Declaration

of Paris, which

is

above, that

set forth

do not apply in two cases

band of war

carried in a ship

is

where contra-

first,

rules

its

and next, in the

endeavouring to obtain entrance to a

case of a ship

blockaded town.

Therefore the law of contraband of

are not touched

war and the law of blockade

by the

reform under the Declaration of Paris, except so far as

a principle long contended for

From

is

applied to blockades.

the very beginning of International

Law

belligerent has been allowed to prevent a neutral

from

supplying his enemy with things capable of being

Such things

used immediately in war.

technically

'

trality of the

owner.

all

The

into a port of the captor

demned

ship and cargo are taken

;

the contraband

if

the

owner of the ship

carriage of the contraband, the ship

but not so

if

conship

owner of the

is

privy to the

condemned

is

the ship belongs to a different owner,

who knows nothing

band commodities.
is

is

of the

If the ship belongs to the

contraband, or

be con-

question as to the neu-

in a prize court, but the fate

itself varies.

Law

may

Contraband of War,' and

demned independently of

are called

complex and

of the destination of the contra-

This branch of
difficult,

but

it

International

owes

its

intricacy

106

and

difficulty to

Grotius had laid

first,

war

LECT. v.

one special question

contraband

articles stigmatised as

in

LAW

INTERNATIONAL

for example,

down

what

From

are the

the very-

that things directly used

weapons-were contraband. He

also ruled that things useless in war, articles of luxury

as he described them, were not contraband.
side these categories

there were a great

But

out-

number

of

things capable of employment both in war and peace

res ancipitis usus

and

it is

innumerable questions have

arisen.

Are

articles of

example, the raw materials

and cordage contraband
Do they become

naval construction
sails

at

in regard to these that

for

any particular stage of manufacture

brass, steel, &c. contraband ?

Are

Are provisions contraband

To

sorts of answers

have been given.

treaties the list of

commodities

is

coals

Are

so

iron,

and horses?

these questions

In

of

many

all

special

contraband and non- contraband

given, and the practice of states

is

On the whole the most general

laid down is that, with the excep-

extremely various.
rule

which can be

tion of

weapons or munitions of war, the contraband,

or non -contraband,

depend on
particular

its

character

destination,

war which

contraband

is

coal.

coal, refused to

band

ment

to

the

cargo must

and on the nature of the

going on.

is

most recently sought

of

The commodity

be brought into the

list

as

England, the great exporter of

admit

its

being necessarily contra-

but in the war of 1870 the English Govern-

declined to allow British coal to be carried to a

NAVAL OR MARITIME BELLIGERENCY

lECT. V.

French

fleet

was lying

that

107

the North Sea.

The

most vehement of the disputes has been, perhaps, that

about provisions.

when

the great

At

the end of the last century,

war of the Revolution had begun,

English statesmen believed the French population to

be on the point of starvation

and that the French

were suffering great distress from scarcity of food

now most
ment

is

The English Governships bound to a French

fully established.

therefore seized all

port which were laden with

provisions.

enemy was believed by them

to be

As

their

on the point of

abandoning the contest through want of provisions,

they refused to allow the stock of provisions to be in-

moment the United States

neutral Power enjoying the

Just at the same

creased.

had become the great

advantages of the carrying trade, and the Government

of the United States issued a
protests against the
^

series

of vehement

assumption of the contraband

character of provisions in any circumstances.

It is

probable that in future provisions will only be con'traband

fleet

is

when

destined for a port in which an enemy's

lying.

your attention

The point on which

is

1 desire to fix

that the test of articles which are

war is not yet settled.

The other portion of the older law which

contraband of

is

not

aff*ectedby the Declaration of Paris is Blockade. Block-

ade is defined as the interruption by a belligerent of access to a place, or to territory,

an enemy.

Blockade

is

which

is

in possession of

probably confined to maritime

108

INTERNATIONAL

hostilities;

LAW

lect. t.

but it has considerable external resemblance

by land, and the law of the one acting by land

to a siege

has visibly affected the law of the other acting by

sea.

But

and

as a matter of fact the objects of blockade

The aim

siege are not the same.

of a siege

a blockade
port, or
it

to put stress

the

of

on the population of

on the population behind

it,

through denying

communication, commercial or otherwise, with the

world accessible to

rest of the
it

is

is

The aim

capture of a strong place or town beset.

by the

effects

it

only by

rules of International

This

sea.

Law, which

permit blockading ships to capture ships of the other

belligerent

which attemj)t to enter the blockaded

port, or to

come out of

it,

or which

may

reasonably

be suspected of having this intention.

There are two main conditions of the capture of

neutral vessels
that

by

blockadmg squadron.

One

is

they must be warned of the existence of the

blockade.

by law

The mode

varies

in

of giving this notice required

different coimtries.

France and

certain other countries give notice to each ship indi-

vidually, their cruisers

the stoppage

is

notified

stopping

on the

it,

and seemg that

ship's papers.

and the United States make public notice

own

territory,

and communicate the

blockade to foreign Powers.

stances,
civilised

where information

fact

England
in

of

their

the

Under modern circumis

conveyed over the

world by newsj)apers and the

electric tele-

XECT. V.

NAVAL OR MARITIME BELLIGERENCY

109

seems that the Enghsh and Ame-

grapli, it certainly

hardly possible that

It is

rican practice is sufficient.

there should be ignorance

nowadays of the existence

of an established blockade.

The second condition

Declaration of Paris
that

is

that mentioned in the

the blockade

must be maintained by

is, it

must be

a naval force strong

enough to prevent access to the blockaded

is

effective

coast.

It

the act of secretly evading a force on the whole

adequate which constitutes the offence that subjects

a neutral ship to capture

The

the blockade.'

the blockade

stress laid

on the

Hardly any country has not been

other accused of establishing

blockade

'

that

called

is

legacy from

is

what

what

the
at
is

to say, publicly

is

'

running

sufficiency of
last

century.

some time or
called a

paper

announcing the

blockade of a particular portion of the coast, but not

supporting

it

by

a sufficient force of ships.

It is

justly thought that such a blockade gives the maxi-

mum

of annoyance to honest neutrals, but allows a

maximum number

of dishonest neutral adventurers

to penetrate the line.

Nothing can justify the ab-

solute interdiction of a portion of the coast to neutral

commerce except a method likely on the whole to

secure that end.

blockade must as a general rule

be continuously maintained,

but an exception

is

allowed in the case of ships driven away by storm

and

stress of weather.

110

INTERNATIONAL

LECTURE

LAW

lect. vi.

YI.

THE DECLARATION OF PARIS.

One

point of considerable interest in International

Law

is

the very different degree of durability which

the various parts of the system have proved to possess.

The

oldest rules

which belong to

its

structure are

simply rules of religion and morality ordinarily applied

between

man and man,

but so modified by the inter-

national writers as to be capable of application between

state

and

state.

By

the side of these are

some

rules

which have been inherited from the oldest stratum of

the

Roman Law,

rules of great simplicity,

and

distin-

guished at the same time by a great amount of com-

mon

sense.

These rules

still

survive and are

still

available for the solution of international questions

On the other hand, there are parts of International

Law which are comparatively modern, which are highly
complex, and which in their day were of great importance, but

which have now become thoroughly obsolete

through changes in the

social condition of nations or

international intercourse.

good example may be

THE DECLAKATION OF PARIS

LECT. VI.

pointed out in what was once

the

War

of 1756.

If

known

you look

111

as the

Rule of

into an international

discussion dating from the latter part of the last century, if

you look

into the reports of the decisions of

courts belonging

to

the same epoch, you will find

constant allusions to this rule, which ultimately became

the subject of a serious quarrel between

England and

community which had

existence when the rule was first heard

the United States, a sovereign

not been in

England,

of

like

probably

the nations

all

European continent, adhered

to

of the

the doctrine that

trade with colonies and dependencies

was the exclu-

sive privilege of the subjects of the

mother country.

The question arose whether war made any

to this

monopoly.

When

the mother country became

a belligerent, the route followed

was

less

ships

by the

colonial trade

obstructed than in ordinary times.

which watched the foreigner who in peace

to intrude

upon

it,

more open, neutrals constantly

which

The
tried

were perhaps driven away by the

vessels of the other belligerent

trade

difference

in time of peace

and the route being

tried to

engage in

would have been

for-

What, then, was the consequence of

neutral invasions of this privilege?
It was argued
bidden to them.

on behalf of the neutral trader, that there being nobody

else to

was

undertake the transport of commodities, he

entitled to share in

it.

This was denied by the

English courts of justice, and they decided that a

112

LAW

INTERNATIONAL

lect. vi.

neutral ship, engaged in a trade of this description,

was

This was the rule of the war

liable to capture.

of 1756, which denied to neutral shipowners participation in the

trade which

was a monopoly of the

mother country or the country which was sovereign

over the dependency.

There was

which forbade certain

articles

Ireland

things which
all

it

But

implied, are

rule,

now

less

open to non-

and the

state of

completely obsolete,

the dissertations about them which once filled

the books are obsolete.

new

this

which was

India,

company, was even

privileged traders.

from

to be exported

and of course the trade of

in the hands of a

and

at that time a rule

as a sovereign

It

was the United

community, which

first

most

strongly the legality of the rule.

been

in fact destroyed

the United States.

showed that a

by the

The fortune

great

increase

States,

then

contested

But

it

has

indirect influence of

of the United States

of national

wealth

followed independence, and the demonstrable profitableness of open trade sapped the old colonial theories,
while,

no doubt, the success of the United States in

securing their independence showed

the danger

of

attempting to control extensive and distant dependencies.

specially interesting set of questions arises

on

the four articles of the Declaration of Paris, the great

modern system of reformed maritime law which, but

for one dissentient, would have become the law of the

THE DECLAKATION OF PARIS

LECT. VI.

whole

This Declaration, as we have

civilised world.

seen, keeps alive

113

two sub-departments of the old law

of nations in very

much

their original state

the law

of contraband of war, and the law of blockade.

Let

us ask ourselves whether these branches of law are

likely to be long-lived

even as slightly altered by the

arrangements of Paris.
that the

list

of articles of contraband of war was not

The proposal

yet closed.

cases been conclusively

on the other hand,

while,

generally

to include certain things

some

in this class has not in

rejected,

have already pointed out

allowed that

as

it

very

is

may become

commodities

contraband through the circumstances of a particular

war, perfectly

new kinds

Perhaps the

their appearance.

class being

first class

articles as to

which

and head the second

the

first

munitions of war, and the second class

things of what,
'

may yet make

most dispute have been those which

there has been

follow the

of contraband

doubtful use

'

in

International

timber,

sail cloth,

Law,

hemp

stages of manufacture, cordage, pitch

and

are

called

in the early
tar.

Lord

Stowell admits this, and gives the reason, that wars

have become more and more naval, so that

most use in regard to

ships, gain

ships,

more and more

articles of

and the propulsion of

likeness to munitions of

war.

There were endless controversies on the sub-

ject.

There were repeated

Powers

in

whose

difi*erences

territories

with the Baltic

the materials of these

I

114

INTERNATIONAL
were

things

gave

treaties

lists

leci. yi.

Many

most part produced.

the

for

LAW

of articles of contraband, and to

some of these England was

The

a party.

piinciple

which the English Government several times adopted

was. that naval stores might be taken possession

of,

but that, unlike anicles of contraband, they must be

But changes

paid for by the captor.

in the structure

and mode of propulsion of ships tend

make

to

kind of contraband or quasi-contraband

Steam renders
their

sails

The

number.

made

of

and diminishes

little utility,

hulls are

this

obsolete.

now more and more

of iron, and iron wu'e even takes the place of

cordage.

It

possible that naval stores

is

appear fi'om the

list

may

of contraband, while there

be a struggle to include such innocent

dis-

may

articles as coal

and food.

The second exception

property
or

is,

to the

immunity of neutral

property earned iu a ship attempting,

reasonably

suspected of attempting,

blockaded port.
considered bv

Blockades in the

bellio-ei^ents

of distressing an

enemy

most

last

effective

To prevent

method

and over gTeat part of the

fortified stations for ships are

to blockade.

enter a

century were

European continent the great markets

and the

to

for traders

most exposed

neutral vessels from enter-

ing or leaving these ports, was to do severe injury to

trade

and to impoverish the blockaded port was to

impoverish the country round about, and,

if

ships of

THE DECLARATION OF PARIS

LECT. Tl.

war were lying within the

total fighting force

the

port, to diminish seriously

enemy.

of the

Toulon were practically blockaded

war
the

at the

all

Brest and

through the great

beginning of this century and the end of

England was again a

last.

115

belligerent during the

Crimean war, and there were some blockades, not

perhaps very important, of ports in the Baltic and
the Black Sea.

But during the American war

be-

tween the Northern and Southern States she became

a neutral,

it

having been

at last allowed,

United States, that there was a

between the combatants.

considerable

that

made

the limited

even by the

state of belligerency

Even then

became

it

change had occurred.

navy of the Northern

clear

Steam

States able to

maintain a fairly effective blockade of nearly the

whole coast of the

Southern

Confederate

States.

Steam also greatly facilitated the operations of the

neutral blockade-runners.

But the land behind the

ports of the Southern States

many
tories.

was

rich

and

fertile,

and

railways had been constructed in those terri-

The

effect, therefore,

of the blockade

was very

unlike the effect of the blockades in the great French

war.

Articles of first necessity were easily supplied

to the blockaded ports

the blockade

was

from within, and the

effect of

to raise the price of luxuries,

were always imported from abroad.

If,

look on the present state of the world,

which

however,

we

shall
I

we
see

116

LAW

INTERNATIONAL

that

lect.^vi.

no European continental Power of any import-

ance exists which

is

not connected by railways with

the interior of the country to which

also,

through connecting

aided

sufficient

blockade

by a land siege

cannot prevent a

it

and even plentiful supply of necessaries and

conveniences entering a blockaded place.

arrest trade

would

at

may still

and conveniences, but

raise the price of necessaries

unless

belongs, and

with the railway

links,

system of the whole Continent.

it

it

can only divert

it.

It

cannot

land

traffic

once take the place of a maritime

traffic.

Hardly any colonial produce reached the blockaded

ports during the great

would flow

in

Now

war with France.

from a dozen openings in Eastern and

North-eastern Europe.

It is possible that

of North America could

now

no part

be blockaded so as to

There has been

greatly distress the country behind.

an extensive construction of railways through

states

it

on the east side of the United

States,

all

the

and an

immense multiplication of manufactures throughout

the country.

South America, rapidly growing in

wealth but insufficiently supplied with railway communication, would be the only part of the world to

which neutrals would

would be of any

The

resort,

and

at

which blockades

value.

fact that in

any future maritime war

it

will

probably be found that these branches of law have

changed

their character, not

through any alteration

THE DECLARATION OF PARIS

i^CT. VI.

117

of opinion, but through industrial development, may-

suggest a suspicion that the

new maritime law created

though now hardly more

by the Declaration of

Paris,

than thirty years old,

may

The

Neutral trade

position

is this.

and

annoyance

yet shortly prove obsolete.

interruption,

and

is

relieved

abolished as regards most of the world.

United

decline

States

new

the

from

privateering

neutral immunities

Now

because they will not surrender privateering.

in

is

But the

any new war an attempt to enforce the parts of

law unfavourable to neutrals, will probably turn the

neutral trading

community

power of employing
privateers

its

foreign

ships

The question

is,

as

a very

whether

it

worth while amending the Declaration of Paris, and

making

it

of universal application by accepting the

further reforms proposed

is,

own and

would make the American Union

formidable belligerent.
is

into a belligerent, and the

by the United

by exempting all private property from

States

capture,

that

and

by abolishing privateering.
Let us

first

the object in

enemy

to

ask ourselves

what

is

supposed to be

war of subjecting the property of an

capture,

neutral bottoms

either in
It

his

own

ships or

in

does not directly benefit the

country carrying out the law, because under modern

practice a vessel properly captured belongs^ not to

the State, but to the captors.

it

distresses

the enemy, that

The assumption
it

is

that

enfeebles his trade,

LAW

INTERNATIONAL

118

and

greatly the price of

raises

commodities, and, more than

many

luxuries and

that

all,

It is here to

diminishes his capital.

lect. vi.

it

seriously

be observed that

the view of maritime law taken, even by international

lawyers, does

not quite answer to the truth.

metaphor used

in the last century

tions of maritime

was that the opera-

war resembled a

flight of carrier

pigeons pursued by a flight of hawks.

But he who

would have

to forget the

would repeat

this figure

enormous growth of the practice of maritime insurance.

may happen

It

as to

surance against perils of the

man's

vessel, if

war

sea, that a

prudently managed,

No doubt

than impoverish him.

risks as

with in-

capture of a

may enrich rather

enhanced rates of

insurance do impoverish a nation, and do diminish

But the

capital.

loss is

widely diffused,

the well-to-do class, and a war

tracted in

it

falls

must be very pro-

felt

by the mass of the population.

Another general position may be noticed.

in

which aggression

the powers of

is

armament which privateering

Power which has most property at

injured.
The old law took for granted
not only of naval strength

among

volume of trade and of property

spond.

risk the

amount of

The question,

In a

kept on the old footing by

the

amount of

on

which increase of marine insurance would

be sensibly

war

its

sea

risked.

therefore, arises

is

most

the equality

states,

loss will

gives,

but in

To

the

always corre-

what

interest

THE DECLARATION OF PARIS

LBCT. VI.

119

have we, what interest has Great Britain, in refusing

to grant a general

property at sea

immunity from capture

In the first place, so

to all private

far as trade is

conducted by maritime conveyance, this country has

incomparably the largest share in

This

it.

is

in great

part a consequence of a revolution in shipbuilding.

So long as ships were built of wood, the maritime

Powers were those which commanded most timber.

The Baltic
likely to

states, Russia,

States

seemed

have in turn a monopoly of transport.

Dutch swept the world

for timber adapted

But now that ships of

time purposes.

made

and the United

of iron, the

The

to mari-

all classes

are

monopoly of construction and pos-

We

session has passed to Great Britain.

are both

the constructors and the carriers of the world, and

we

suffer

more than any other community from

all

dangers, interruptions, and annoyances which beset

maritime carriage.

But

far the

most serious consideration

the matter before us

that

is,

affecting

the conformity of the

Declaration of Paris to our permanent interests

the relation of maritime law, which

supply of food.

and of the
that

it

first

was the

it

The statesmen of the

to

last century,

part of this, unhesitatingly assumed

interest of this country to raise the

They were used

war seemed

is

sets up, to the

largest part of the food of its population

soil.

them

to wars,

from British

and the great French

to establish that a country not

INTERNATIONAL

120
fed

by the produce of

to

the

during

the

lect. vi.

own

soil

might be reduced

In

fact,

the price of corn

greatest straits.

great French war, and

years following
is

its

LAW

even for some

was absolutely prodigious.

it,

not any

the secret of their protectionism, and

particular

This

They looked on the

economical theory.

evils of

importmg food from abroad

duction

from experience.

as a clear de-

Since that period,

the

infrequency of wars has kept out of sight the un-

exampled nature of our position with regard

So

far as the articles

cerned,

we

are

most necessary

mainly fed from

to

other

removed from us by vast distances

America and from India

that

is

life

to food.

are con-

countries,

from

North

to say, a great

part of the national food before reaching us

is

only

accessible to us through maritime carriage, very long

and capable of very easy interruption.

Caird, in a paper

Sir

James

which he has recently published,

says that the food imported into Great Britain during

the year 1887 would probably reach one hundred sjid

Nor can the balance between

foreign commodities and home sup23lies be seriously
Sir James Caird points out in the same
altered.

forty millions sterling.

paper that Great Britain

is

steadily

becoming a

pastoral country instead of an agricultural country.

The

state of living

under any circumstances

times very hard to alter

and population,

is

at all

at various

degrees of pace, always multiplies up to subsistence.

THE DECLARATION OF PARIS

LECT. VI.

On

the other hand, the price which

121

we pay

for

our

prodigious

purchase of food in other countries

really paid

by our manufactures, of which

mate sources are our coal and our

iron,

is

the ulti-

and the

Thus the
greater part of the food which we consume in any
inherited

skill

of our operative classes.

year can only reach us through a long voyage, and

the price which

must

also

is

the

means of bringing

it

come through a voyage of equal

to us

length.

These, of course, are economical reasons, but I also

look on the subject from the point of view of International

Unless wars must be altogether

Law.

dis-

carded as certain never again to recur, our situation

is

one of unexampled danger.

supplies which are matter of

life

Some

part

of the

and death to us may

be brought to us as neutral cargo with

less difficulty

than before the Declaration of Paris was issued, but

a nation

still

permitted to employ privateers can in-

terrupt and endanger our supplies at a great

number

of points, and so can any nation with a maritime force

of which any material portion can be detached for pre-

datory cruising.

It seems, then, that the proposal of

the American Government to give up privateers on

condition
capture,
friend

of exempting

private

property from

might well be made by some very strong^

of Great Britain.

would save our

dities

all

If universally adopted,

and

it

which are the price

of

food,

it

would save the commoour food, from their most

122

INTEPvXATrONAL

formidable

enemies,

and

LAW

LECT. VI.

would disarm the most!

formidable class of those enemies.

am aware of the objections which

made. It may be asked whether it would

Of course
might be

tend to diminish wars

to the lowest point,

if

and

economical loss were reduced

between nations

if hostility

resolved itself into a battle of anned champions, of

u'onclads

and trained armies,

if

war were

to be some-

thing like the contests between the Itahan States in

the Middle Ages, conducted

pay of

this

by

free

companies in the

think that, even

or that commimity.

thus modified, war would be greatly abated.

tliis

is

But

subject which ought not to be taken for

granted without

discussion,

future lecture to take

it

and

up and go

hope

into

it

in

some

completely.

THE MITIGATION OF WAR

LECT. Til.

LECTURE

123

YII.

THE MITIGATION OF WAR.

The

an age of land wars.

feudal

The wars

the

in

it

wars of religion

ferocious that

then so

born was

of succession and of

ascendency had partially died out, but the

Reformation brought with

and

Law was

age in which International

much

new fury of fighting,

were among the most
a

mankind had waged.

Armies did not

consist of rival potentates, as of hosts

which each individual detested every man on the

This ferocity

other side as a misbeliever.

believed to have

burg.

There

culmmated
a

is

is

generally

in the siege of

Magde-

famous passage of Grotius about

the licence of fighting which he saw around

and though the dates forbid us to

see

some writers any

allusion to the siege of

there seems

doubt that the

little

which became current gave

tions of Grotius

him

here with

Magdeburg,

stories of the horrors

new

point to the sj^ecula-

and his school.

Until very recent times there

is

great ground for

distrusting the accuracy of the figures which purport

to represent the

amount of slaughter

at battles

and

INTERNATIONAL

124
sieges.

It is

said,

LAW

lect. vii.

however, that the population of

Magdeburg, which was taken by storm, was reduced

The

from 25,000 to 2,700.

siege is described

an English eyewitness, whose account of

reofarded as authentic, constitutes those

Cavalier

'

Memoirs of a

which are generally embodied in the works

The

of Defoe.

by

generally

it,

writer states that out of 25,000 men,

and some said 30,000, there was not

a soul to be seen alive

after the

storm

the flames drove those that

till

were hid in vaults and secret places to seek death in

the streets rather than perish in the

Of

fire.

these

miserable creatures too some were killed by the fierce

soldiers,

but at

came out of

last

they saved the lives of such as

their cellars

and

holes,

2,000 poor desj)erate creatures were

little

shooting.

so about

There was

left.

The execution was

throats and mere house

and

cutting of

all

Later historical

murders.

information tends on the whole to relieve the

of Count

Tilly,

commander

the

of the

memory

besiegers,

from the infamy which has hitherto attached to

but

all

sieges in that

homicidal, and there

is

day were to the

it

last degree

a general impression that the

peculiar ferocity of the soldiery after the capture of a

town by storm was due

to the Tartars,

overrun what were then the most

portions of the world,

population of the town

They appear

who had

fertile

and

twice

civilised

and who never spared the

which had

resisted

them.

to have considered that every stratagem

THE MITIGATION OF WAR

LECT. VII.

and every degree of bad

faith

was

125

justifiable for the

purpose of inducing the garrison to surrender, but in

the long run they never spared any man.

the countries in which these

Nor have

massacres took place

ever wholly recovered from them.

So

far,

indeed, as

the centre and west of Europe are concerned, there

is visible

a calming

down

of these bitter extremities

of war as soon as Grotius, with perhaps a few predecessors

and a

series of successors,

began to

write.

have already several times referred to his method.

He was

guided, as

it

seems, prmcipally

by what he

supposed to be examples and precedents.

man

He was

of great learning according to the particular

standards of learning which prevailed in that day

but the

critical

and the worst of the

pile of

which are collected in the

that

treatment of history had not begun,

we cannot be

'

innumerable examples

De Jure

Belli et Pacis

'

is

sure of the authenticity of the

accounts of them which are found in the books of ancient writers.

Grotius digested these precedents.

separated the most

humane from

He

the most ferocious,

performing the function of separation by applying to

the mass of matter before him,
religious teaching as he

found

first
it

of

all

in the Scriptures,

and next the principle of what the Romans

Law

of Nature.

the test of

called the

The method of his immediate

sors has been substantially the

some scepticism has

same

arisen, not so

succes-

but in our day

much

as to the

LAW

INTERNATIONAL

126

lect. yit.

philosophical value of the process as with regard to

you may sometimes find

the usages of

it

war was not

who came

to writers

said that the softening of

so

after

much due

to Grotius, or

him, as to the growing

humanity of military commanders.

among the successors of Grotius

in the degree of

its

In modern international writings

practical results.

there

humanity which

It is true that
is

a great variety

characterises them.

Puffendorf and Bynkershoek are inferior to Yattel

in gentleness,

humane

to the crueller usage,

humane of

the most

There
it

and in the wish to prefer the more

is,

but beyond comparison

the publicists

is

Yattel, a Swiss.

however, very good reason to suppose that

was the writings of the

publicists

couraged the humanity of war.

which most en-

They

followed

all

Roman
Law of Nature. Philosophically
that principle is now not much cared for
but the
supposed rules of the Law of Nature were applied by
Grotius in professing unbounded respect for the

conception of the

another set of writers to another subject matter. There

was a gradual growth

all

over continental Europe in

the eighteenth century of respect and reverence,

even enthusiasm,
ceive

that

for

may perwho expe-

humanity, and you

on the whole the persons

rienced, or pretended to experience, this feeling,

Law of Nature.
famous man the whole

believers in the

was that
political,

social,

and

The

chief of

were

them

of whose philosophy,

and educational, was based on the

THE MITIGATION OF WAR

LECT. VII.

Law

of Nature, Jean Jacques Rousseau.

apart from

in truth,

may

127
It

what the opinion of

seems

scholars

have been, that there was always a close

Law

between the

sociation

and that by
that law

of Nature and humanity,

constant profession of applyino-

their

and of

as-

easily distinguishing

its

dictates

from one another the international writers did materially

increase

the

gentleness

mankind even

of

when their passions were most excited.

The wars of the last part of the seventeenth and
most of the eighteenth century were naval wars.

great

tinuing.

amount of law grew up while they were conOne chief reason why, on the whole, naval

usages are reasonable and

gerents were checked

humane

by the

is,

neutrals.

that the

In land wars

a neutral can only affect proceedings to

objects

very

by taking part

first

the

in the strife

belli-

which he

but from the

maritime Powers were

belligerent

prevented from going to the

lengths of preda-

full

by the authority of prize courts.

however, quite true that the commanders of

tory destructiveness
It

is,

land forces did gradually abandon the ferocity with

which Tilly has been reproached.

There was no

more humane commander on the whole than our

own Duke

of Wellington.

It is

same time, that he constantly

which English lawyers are

falls

singular, at the

into an error with

specially charged, that of

confounding military law, which

is

regulating law.

INTERNATIONAL LAW

128

lect. vii.

with martial law, which means the will of the

He

commanding.

officer

always spoke of the law of war

as consisting in the volition of the

Commander

of the

Forces.

The

great

first

attempt which was made after

the epoch of Grotius to give general fixity and to

humanise the law of land war, was made almost

whom justice

our day by an unfortunate sovereign to

has never been fully done, Alexander

He

in

II.

of Russia.

does seem to have been animated, as were both

the statesmen and literary

eighteenth century,

You

men

occasionally in the

by an enthusiasm

for

humanity.

are all aware that almost immediately after his

succession to the Russian throne he abolished serf-

dom

but his

efforts

to reform

International

Law,

and

specially the usages of war, are less

He

joined in promoting the Geneva Convention, of

which

shall

say

much

presently

remembered.

he was the

author of the proposal for renouncing the use of

weapons which caused wounds of unusual

certain

painfulness

and he was the sovereign who sum-

moned and who took an unflagging

Brussels Convention of 1874.

vention

failed,

that the reasons

tive.

I will

coming

and we

why it

interest in the

The Brussels Con-

shall find, I think, hereafter

failed are

remarkably instruc-

say that one of the grounds for

to maturity was, that

it

its

not

was commenced too

soon after one of the greatest of modern wars, which

THE MITIGATION OF WAR

LECT. VII.

129

probably never had a rival in the violence of the

passions which

it

England

excited.

before the Con-

vention met had stipulated for the omission of

of

discussion

the rules

of naval

war.

all

These, I

suppose, were considered to have been sufficiently

settled for the

day by the Declaration of Paris

at the close of the discussions of the Conference,

even

members admitted

its

and

when

that they had been able

on a very small part of the matters sub-

to agree

mitted to them,

it

was the English Foreign Secretary

of State, Lord Derby,

vention

its

who

deathblow.

finally

gave the Con-

Undoubtedly the smaller

Powers of Europe, and the Powers which have not

yet taken

up the system of great armies

conscription,
to

many

rally

of

had very serious reasons

raised

by

for objecting

suggestions, which had not unnatu-

its

sprung up in the minds of military men who

sympathised either with France or with Germany in

the

war which

a few years before

to a conclusion.
ever,

had been brought

The Brussels Conference had, how-

one result which had great importance and

interest.

Just at the close of the American

Secession the United States had prepared a

War

of

Manual

of Rule and Usage for the use of their officers in the

field.

Manual

This example

the

formation of a practical

stating for the officers of each nation

what

contingencies they were to be prepared for in actual

contest

and how they were

to deal with

them

was

INTERNATIONAL LAW

130

lect. vil.

by Germany, by England, and by France,

and some of these Manuals have been adopted by

followed

But they were

smaller Powers.

by

recommendations

the

Brussels

and

in

greatly affected

all

Conference

of

the

it

may

reality

wherever there was anything

like

be

said

of

that

an approach to

unanimity in the decisions and votes of the Conference,

it

is

somewhat

adopted in this

irregular

form by the greater part of the nations of the

world.

The Manual prepared

for

English

officers,

which

was, I believe, chiefly compiled by the present Lord

Thring, then the

Government,
taken

all

is

official

one of the

Visibly the writer has

humaner doctrines

more particularly from

never pretends to lay

which he nevertheless

now

best.

that he could take from the

of the publicists,

is

draftsman of the British

down

Yattel, but he

authoritatively the law,

declares in such a

possible for a student of law to read

gain from

it

it

it

a very vivid notion of what a land

which England was engaged would be

happily

form that

occurred.

I will

it

and to

war

in

like if un-

proceed to read to you

certain passages from this Manual, taking portions at

the same time from other Manuals, and

making some

remarks as i go on upon the older history of the

customs of war of which it

treats. I

am

sorry to say that

the British Government has not thought

it

to be published, and therefore I

am

fit

to allow

afraid it cannot

THE MITIGATION OF WAR

LBCT. VII.

It begins

be procured.

131

with a statement of general

principles.
^

War, properly so

called,

an armed contest

is

between independent nations, and can only be made

by the sovereign power of the

a formal

In this country

State.

announcement of war

is

made by

a procla-

mation issued by her Majesty and posted in the City

of London.

The

of a state of

war between two nations

first

consequence of this existence

is,

that every

subject of the one nation becomes in the eye of the

law an enemy to every subject of the other nation

as every subject

is

own Government,
two nations
each nation.
limits

is

for

politically a party to the act of his

war between the Governments of

war between

all

the individuals of

This principle carried to

would authorise the detention,

its

extreme

as prisoners of

war, of subjects of one of the hostile parties travelling

or resident in the country of the other at the time of

the outbreak of war, and

goods.

The

trary to the

the confiscation of their

exercise, however, of such a right is con-

practice of

modern

warfare,

conduct of Napoleon cannot be justified,

and the

who on

the

outbreak of the war with England in 1803 seized

all

the English travelling in France between eighteen and

sixty years of age, and detained 10,000 of
prison,

where they remained

The usage with

respect

to

till

them

in

the peace of 1814.

goods

is

to allow the

owners to dispose of them, or leave them to be

K 2

132

INTERNATIONAL

LAW

lect. vii.

claimed by the owners on the restoration of peace.

The expulsion of

territory of the opposing state

be

the

and may

is justifiable,

not according to circumstances.

or

exercised

enemy from

subjects of the

During the Crimean war Russians were allowed

England and France.

reside quietly both in

to

In the

Franco- German war of 1870 hostile strangers were

required to quit the soil of France within a few days
after

had received

they

other hand,

war

and in

They

soldiers,

and not as men.

speaking,

The

are enemies

is

the redress

object of

war

man

itself implies

between the individuals by

hostility

On

to quit.

not a relation of

is

of state to state,

on.

notice

to

the

man, but

no private

whom it

is

carried

only in their character of

The
by

object of war, politically

force of a national injury.

in a military point of view

is

to

procure the complete submission of the enemy at the

with the least possible expen-

earliest possible period

diture of
^

men and money.'

'

Wars,' says Lord Bacon,

are no massacres and confusions, but they are the

highest

trial

when

of right,

acknowledge no superior on

upon the justice of God

troversies

by such

give to either

call

earth, shall

put themselves

for the deciding of their con-

success as

it

shall please

Him

to

side.'

Going back upon

must

princes and states, that

this list of general principles, I

your attention to the contrast between the

statement that the

first

consequence of the existence

THE MITIGATION OF WAR

LECT. VII.

133

of a state of war between two nations

that every

is

subject of the one becomes in the eye of the law an

enemy

to every subject of the other nation,

proposition that

but of state to

war

state,

is

not a relation of man to man,

and of

no private

itself implies

whom

between the individuals by

hostility

and the

is

it

carried on, that they are enemies only in their cha-

and not

racter of soldiers,

as

men.

Several critics in

European countries have remarked on

two propositions do not

that the
of

first

women and

war

is

in with one another

them would authorise the

of

children, whereas the

to a contest

think there

fall

that the

this,

second reduces

between professional

some justice

killing

soldiers.

in this criticism, that the

two propositions belong to different periods of history.

The first represents what might have been the theory
of law

if

an attempt had been made to express

the period

of Greek classical antiquity, while

new theory
Many
advanced.

it

at

the

which

second proposition represents a

to

the world has generally

passages

which meet us in Thucydides show that

fact in the

thought

(if

in point of

view of the Greeks war must have been

anybody theorised about

it) to

between the whole of the subjects of one

whole of the subjects of another.

be waged

state

There

is

and the

a passage

that recurs frequently, that they killed the men, and

women and
The women and

the

children

they reduced to slavery.

children were in fact considered, as

134

LAW

INTERNATIONAL

lect. vii.

well as the men, to be in a state of enmity to the

other belligerent state.

remark

here,

what many-

have remarked as well, that one consequence of the

decay and abolition of slavery was an increase of
bloodshed.

Women

grown men had

and children and occasionally

own which

a value of their

a motive for keeping

them

and

alive,

supplied

at a later date

bloodshed was, to a certain extent, diminished by the

practice of

ransoming

and there were no bloodier

wars than those which occurred when the practice of

ransoming had just died out.

The next portion of the Manual has

for a title

The means by which war should be carried on

that is to say, the means by which war is as a fact
'

'

on among

carried

and relatively humane

civilised

The poisoning of
The writer says
mode
warfare
or
food
is
of
absolutely forwater
a

enemies.

bidden

'

but the turning

off the

convoys of food to the enemy

methods of reducing them

supply by stopping
is

one of the usual

The use

to submission.

of poisoned weapons and of weapons calculated to

produce unnecessary pain or misery

on the ground

that, as the

object of

is

war

to disabling the enemy, the infliction of

beyond that which

is

is

prohibited,is

confined

any injury

required to produce disability

needless cruelty.'

As

to the poisoning of water

explanation of

its

prohibition

is

and food, the best

that

it

seems to have

THE MITIGATION OF WAR

LECT. VII.

existed from very earliest times.

It is quite certain

Romans thought

both Greeks and

that

135

that

the

poisoning of water and food was worthy only of

What was

barbarians.

the origin of this feeling

been asked by writers

modern days.

of

It

has

may

have been that the poisoning of water and food was

thought a peculiarly painful mode of

The only poison of

inflicting death.

great efficacy which seems to

have been known to antiquity, and which indeed was

base

the

of the

subtle

Middle Ages by the

poisons

Italians,

was

employed in the

which no

arsenic,

doubt causes death coupled with the extremest pain.

Or

may have been

it

fair fighting-

the idea that poison was not

and this

shows

feeling in very ancient days

itself as a

very strong

that on the whole

each

combatant ought to have the means of employing his

skill in resistance.

On

the subject of the use of poisoned weapons,

and weapons calculated

to produce unnecessary pain

or injury, one of the chief

modern reforms

of the law

much success
command. By the De-

of war has been attempted, and with as

as

it

was possible

for

it

to

claration of St. Petersburg, proposed

Alexander

II.

and signed in 1868 by

by the Emperor
all

the civilised

Powers, the contracting parties agreed to renounce

the use by their forces on land or sea of an explosive
projectile of a

weight below 400 grammes

more than fourteen ounces

a little

charged with fulminating

INTERNATIONAL LAW

136

or inflammable matter.

LECT. vii.

have heard that

this pro-

vision in the Declaration of St. Petersburg has no

longer

humane

its

effect in

am

gress of science, which, I

had the

effect of defeating

of humanity.

area

bullets

It

sorry to say, has often

attempts to increase the

that the conical

alleged

is

which are universal in modern armament do

in fact cause pain as severe

ever did the explosive

as

consequence of the pro-

coming

and wounds

as incurable

which were just

bullets

in about the year 1868.

competent to meet the objection, but

must mark that the Declaration of

am

myself

in-

at all events

we

St.

Petersburg,

expressing the opinion of the whole civilised world,

declares that the object of

war

is

confined to disabling

the enemy, and lawful usage does not warrant any

state in causing injuries
is

necessary for that comparatively

A
'

which give more pain than

humane

further universally accepted rule

Assassination

sassination

is

the

is

despatch

the

As-

murder by treachery of individuals

The

treachery, as a surprise

may

as follows

against the customs of war.

of the hostile forces.

small force

is

object.

is

essence of the crime

is

always allowable, and a

penetrate into the enemy's camp,

sentinels,

take

the

general

officer

prisoner or kill him, without infringing any of the

customs of war or subjecting themselves,

if

taken, to

be treated otherwise than as prisoners of war.

the

It is

duty of the enemy to be prepared against a

THE MITIGATION OF WAR

LECT. Yii.

137

military surprise, but not to guard himself against

the treacherous attacks of individuals introduced in

disguise into the camp.'

Assassination began to be regarded with peculiar

No doubt

horror immediately after the Reformation.

it

was the murder of William of Orange, more than

suspected of having been prompted by the Spaniards,

which brought about the

which

it is

fierce

denunciations

of

There will always, of course,

the subject.

be some danger of this crime being resorted to when

a war, as
entirely

man

sometimes the

is

on the

life

of one individual

William of Orange, in the opinion of

But

feeling

it

a great states-

That was the position of

or a great general.

enemies.

depend

case, appears to

all his

Catholic

has often been noted that a

had arisen in the interval between the wars of

the Reformation and the progress of the greatest

in

new

which

Many

country has ever been engaged.

this

war

writers quote with the strongest approval the action

of Mr.

Fox when Foreign

scheme

for the

communicated
in Paris

Secretary.

promising

murder of the great Napoleon was

to him,

and he

at

once made

it

known

and informed the Emperor of the danger

which threatened him.

The

feeling elicited

by

this

proceeding of the English Foreign Secretary was so

strong and has so
writer of the
assassination

is

little

decayed, that I think with the

Manual we may

safely lay

down

against the customs of war.

that

LAW

INTERNATIONAX

138

He

proceeds

'
:

With

lect. vii.

the exception of the means

above stated to be prohibited, any instruments of

destruction, whether

open or concealed, partial or

widespread in their

effects,

of any weight,

shells

torpedoes, mines, and the like,

may

employed against any enemy

and seeing that the

use

legitimate, there is

is

no reason

or be treated in a worse

the officers

manner than other com-

humane commander
of war

as the exigencies

far

why

them should be refused quarter

or soldiers employing

batants.

legitimately be

no doubt,

so

admit, endeavour

to

will,

provide that the effect of the explosion of a mine

or torpedo should extend to combatants only, but
practically no rule can be laid

The general

principle

that in

is,

on war no greater harm

down on the subject.

the mode of carrying

shall be

done to the enemy

than necessity requires for the purpose of bringing

him

to terms.

This principle excludes gratuitous

and every description of

barbarities,

cruelty

and

insult that serves only to exasperate the sufferings

enemy without

or to increase

the

weakening

strength or tending to procure his

his

hatred

of the

submission.'
I

have further to remark on these portions of the

Manuals before

us, that

sages of the history of

tation

one of the most curious pas-

armament

is

the strong detes-

which certain inventions of warlike implements

have in

all

centuries provoked,

and the repeated

at-

THE MITIGATION OF WAR

LECT. VII.

139

tempts to throw tliem out of use by denying quarter to

the soldiers

who

detested of

was

The most unpopular and

use them.

weapons was once the crossbow, which

really a very ingenious scientific invention.

crossbow had an anathema put on

it,

in 1139,

Lateran Council, which anathematised artem

mortiferam

without

et

Deo

crossbow to their

Eichard

princes

its

ceased to

and

soldiers,

revived

I.

by the
illam

The anathema was not

odibilem.

Many

effect.

The

it

is

give the

said that our

use with the result that his

death by a crossbow bolt was regarded by a great

part

of Europe

certain

as

a judgment.

that the condemnation

the Lateran Council had

It

seems

weapon by

of the

much

to

quite

do with the con-

tinued English employment of the older weapon, the

longbow,
the wars

and

thus

to

before long driven out of employ-

ment by the musket, which

in reality a smaller

is

and much improved form of the cannon that

earlier date

in

successes

But both crossbow and

with France.

longbow were

English

the

were used against

ring two or three centuries

all

fortified walls.

at

an

Du-

musketeers were most

severely,

and as we should now think most unjustly,

treated.

The Chevalier Bayard thanked God

last

days that he had ordered

into his

hands to be

slain

all

musketeers

without mercy.

in his

who fell
He states

expressly that he held the introduction of firearms to

be an unfair innovation on the rules of lawful war.

INTERNATIONAL

140

Red-hot shot was also

LAW

lect. tii.

but

at first objected to,

it

was

long doubtful whether infantry soldiers carrying the

musket were entitled

who

has

that

it

Marshal Mont Luc,

to quarter.

left

Memoirs behind him, expressly

was the usage of

his

declares

day that no musketeer

should be spared.

The bayonet
it

No doubt

also has a curious history.

must be connected by

some way with the

origin in

town of Bayonne, but the

stories ordinarily told

about

invention and early use seem to be merely fables.

its

No

invention added more to the destructiveness of

war, as the bayonet turns the musket into a weapon

which

is at

able thing about

for so
is

it is,

long unused.

said first to

sally

among

fear of

The remark-

once a firearm and a lance.

that though

known

it

remained

was Frederick the Great who

It

have used

his soldiers.

it

generally or even univer-

The

probability

is

that the

exposing infantry to deprivation of quarter

taken prisoners caused this hesitation in using

our

own army we have an example

Brigade.

certain

created, in the green uniform of the Rifle

It

whether foot
rifle

In

of the feeling

which the old usage of war on the subject of

weapons

it.

if

seems

to

been long doubted

armed with the early form of

soldiers

would have

have

their lives granted to

were taken prisoners

them

if

and the green uniform,

they
first

used among the olive foliage of Spain and Portugal,

was supposed,

it is

now

said untruly, to give a greater

THE MITIGATION OF WAR

LECT. VII.

141

protection than clothes of any other colour at a longer

distance.

Looking back on

this long- continued state of feel-

ing on the subjects of

one

may

new and destructive inventions

perhaps wonder that mines and torpedoes

and particularly the torpedo of our

with harsher

day, have not

met
But the reason why no such

feeling.

attempts as were formerly tried to drive out of use

especial

weapons are

in the first place,

struction,

human

this
is

and especially an

art,

day

life

power by

that,

art of de-

to the

power of destroy-

and when the extension of the area of

a professional class has once set in,

impossible for us to lay

may go

is

likely to see rapid improve-

We know of no limit

ments.

ing

any

in our

is

likely hereafter to be seen,

or over

what time

it

down to what lengths it

it may extend.
The in-

vention proceeds so rapidly that a peculiarly objectionable form of

it

can rarely be noted and

the other hand,

it is

more

specified.

On

satisfactory reflection that

wars have on the whole become

less frequent,

and they

Hence the opportunities of

have also become shorter.

observing the widespread and cruel destruction caused

by the most formidable class of new warlike inventions

are

much

rarer than they were.

I will proceed to say

something on the history of

the torpedoes which occupy so

I

may remark

torpedo

was

that

when

received

it

much
was

of our attention.

first

invented the

with downright execration.

INTERNATIONAL

142
It first

made

LAW

lect.

tii.

appearance in the war between the

its

now forming the United States, and

the mother country, and it was then known as the
American Turtle.' Many attempts to obtain an im-

revolted colonies,

proved form of it were made during the war between

England and France, when Napoleon and

were hanging on the

The

coast.

his armies

principle of using

clockwork had already been invented, but the peace of

1814 put an end

vention, and

it

for the time to that

method of

in-

was long before the world heard again

of the catamaran, as the torpedo was next called.

The epochs

in the period of humanitarian pro-

gress and voluntary codification which deserve to be

identified

mth the name of the Emperor Alexander

of Russia are

acceded to by

the Convention of Geneva as to wounded,

all

the European Powers in the course

of the years 1864, 1865, and 1866

of St. Petersburg in 1868
Brussels,
I refer

book.

which

you

11.

filled

the Declaration

and the Conference

at

the greater part of the year 1874.

for the results of both to Halleck's excellent

THE MODERN LAWS OF WAR

lECT. VIII.

LECTURE

113

VIII.

THE MODERN LAWS OF WAR

my

In

wliich

lecture

last

explained

the

detestation

newly -invented instruments of war sometimes

occasioned in olden days, and of the severity with

which

soldiers

The Manual

treated.
field,

who employed them were sometimes

on which

am

for the use of officers in the

basing these lectures, states the

general rule on the subject of

in the following terms
^

With

new

warlike inventions

the exception of the

means above

stated to

be prohibited, any instruments of destruction, whether

open or concealed, partial or widespread in their

shells of

effects,

the like,

may

enemy and
;

any weight, torpedoes, mines, and

legitimately be employed against an

seeing that the use

no reason why the

is

legitimate, there

officers or soldiers

is

employing them

should be refused quarter, or be treated in a manner

worse than other combatants.'

The means above

stated to be prohibited are poisoning water or food,

assassination^

and the use of explosive

bullets above a

144

INTERNATIONAL

certain weight.

mander

It is

will, so far as

LAW

added that

'

lect. viii.

humane com-

the exigencies of war admit,

endeavour to provide that the

effect of the

explosion

of a mine or a torpedo should extend to combatants

only, but practically

no rule can be

laid

down on the

subject.'

The

latest instance in

and destructiveness

far

which mines of an extent

exceeding the immediate object

were used, was one which attracted but

this

notice in

country owing to the distance of the locality at

which the explosion took

that

little

place. It

happened, however,

the course of the advance of the Russian

in

armies through the Tartar countries to the frontier of

Afghanistan a well-known Eussian commander,

much

beloved and respected, General Skobeleff, found his

progress obstructed by a great fortification erected

by

a large tribe of Tartars.

This was the fortress of

Akhal Teke, an enormous construction of burnt

It

would have taken much

attack

it

time,

clay.

and cost many lives, to

by any of the recognised methods of capture.

It appeared,

however, that the tribe which had erected

this fortress

had no conception whatever of

a mine,

and

SkobelefF passed several weeks before these walls in

excavating mines of an enormous extent.

At

last,

the

besieged having no suspicion that they were likely to

be attacked in any way except that known to them,

the mines were exploded, and the greater part of the
fortress

and a vast number of persons inside

it

were

THE MODERN LAWS OF WAR

LECT. VIII.

at

once

The

destroyed.

145

remainder of

the

tribe

received very severe treatment from the successful

besiegers,

and but a small portion escaped.

to think that this

sad

It is

example of warlike severity was

by the general of the Power which,

it

set

would be only

just to admit, has done most to mitigate the cruelties

SkobelefF defended himself on the ground

of war.
that

what he had done was true humanity rather than

severity,

and that in no other way could a tribe which

in war, but

was not only formidable

temporary establishment of peace

to prevent the even

in those countries, be reduced.

all

operations of

war which

eyes of civilised men,

press and the

had done much

But, no doubt, in

are conducted under the

who watch them through the

telegraph, the practice

these Manuals, that

'

as the exigencies of

is

stated

humane commander will,

war admit, endeavour

in

so far

to provide

that the effect of the explosion of a mine or a torpedo

should extend to combatants only

it

is

cautiously

on the
is

the

mode

subject.'

added,

'

no

all

of carrying on the

but practically,'

rule can be

The general

conclusion of

principle

these writers

is

down

laid

and

that

this

in the

war no greater harm

shall

enemy than necessity requires for the

This principle
bringing him to terms.

be done to the

purpose of

excludes gratuitous barbarities, and every description

of cruelty and insult that serves only to exasperate

the sufferings or to increase the hatred of the

enemy
L

146

INTERyATIOXAL

LAW

lzct. nii.

without weakening his strength or tending to produce

his submission.

An

interesting question for us to ask ourselves

whether
to be

in the future history of warfare there

is

is.

likely

any such proscription of weapons through sheer

common

disKke or horror as was

in the Middle Ages.

am myself not convinced but that hereafter there

may be a very serious movement in the world on the
I

subject of

some parts of the newly -invented armament.

Let us just take into

our

shown themselves capable

inventions, which have

causing temfic destruction

naval warfare, the

Ram

two
at

present

at all.

At

coast of

North America during the

also

Xeither

one

hardly

T\^ar of Secession,

on the western coast of South America, the

tried,

effects

been sunk in

and has proved

to be an instniment

can hardly be measured.

a

moment

Among

the

we have hardly any

ex-

military and naval

great controversy as to

its

Ships have

Of

two by

or

use of the toi-pedo. however,

ample.

of

the battle of Lissa in the Adriatic, on the

ram has been

whose

of

new implements

and the Torpedo.

has been extensively tried

and

new

consideration two

its

men

effectiveness.

use.

there

is

still

Torpedoes

during the Russo- Turkish war were laid down in the

mouths of the Danube

in great quantities, but

the

Russians had no dif&culty in removing them without

injury to themselves
still

a question

and

all

over the world

it

whether the defence or the attack,

is

as

THE MODERN LAWS OF WAR

LECT. Tin.

these writers put

is

it,

147

the stronger in their case.

In this country, I think, which

is

confident of the

possession of the most formidable forms of this im-

plement,

there

present considerable belief in

at

is

war

its effectiveness in

but in France, on the other

hand, the opinion on the whole tends in the other

French naval writers maintain emphati-

direction.

cally that, as

torpedo
scale

is

yet,

has not been proved that the

it

weapon which can be used on

with safety by a naval combatant

have

French writers

raised

question

a large

but these

which

is

extremely interesting to us with regard to the

dis-

You must

re-

am

cussion which I

member,'
admiral,

'

says

just closing.

one of them,

that a torpedo

the dark.

Now,

is

'

celebrated

French

used under water and in

you quite sure that you

are

will

always aim your attack against the ship which you

intend to destroy ?

torpedo

fleet

makes

off a particular

Suppose that the commander of a

his

coast,

way

to a force of ships lying

and one of

his torpedoes

is

successfully fixed to the vulnerable parts of one of

them.

The

electric

spark

and everybody on board

it

is
is

sent into the depths of the sea

applied,

and the ship

blown into the

air or

Supposing, however,

it

is

discovered that the ship

which has been destroyed

is

a neutral, perhaps one of

immediately afterwards

the finest vessels of a friendly

Power

Do

not you

think that there would be a thrill of horror through

L 2

LAW

INTERNATIONAL

148

lect. tiu.

the civilised world, and are you sure that a combination of civilised nations will not be formed

condemn the torpedo

to the

which

will

same proscription, and

perhaps by the same means, as far more merciful

weapons were condemned in the Middle Ages ?

my

part, I think this reasoning exceedingly strong,

and

am

may

not yet convinced that warlike invention

not reach some point at which the natural

feelings of
I p.ass

which in

which

humanity

now

it

to be arrested.

briefly to a portion of these

spirit is

am

will cause

placing before you.

'

It is

Spies and

in a district occupied

the chapter

Stratagems.'

spy, they all say, in a military sense

found

Manuals

good deal connected with that

which they contain on

is

For

'

is

a person

by the enemy

who

collect-

ing secretly, and in disguise, information respecting

his condition

and designs, with

nicatmg such information

to

view of commu-

the

opposing

force.

Secrecy and disguise are the essential characteristics

of a spy in the military sense.

An

officer

in

uni-

form, liowever nearly he approaches to the enemy,

or however closely he observes his motions,
spy,

and

war.
either

if

Spies

not a

taken must be treated as a prisoner of

when taken

are punishable with death,

by hanging or shootmg.

must be secured by rewards,

upon

is

as

The

services of spies

no one can be

to undertake the office of spy as

duty or against his

will.

called

a matter of

commander may,

of

THE MODERN LAWS OF WAR

LECT. VIII.

149

course, avail himself of information if given

How

traitor.

he

far

suborn treachery,

is

transactions are said

justified in

is

more

by a

endeavouring to

Such

difficult question.

by Vattel

to be not

uncommon,

though never boasted of by those who have entered

An

on them.

officer

may

feign to be a traitor for

enemy who attempts

the purpose ef ensnaring an

corrupt his fidelity

trary to

conduct

his

the customs

cannot be punished or
close the

number

they belong.

he voluntarily makes

is

of war.
ill

town by

a stratagem,

than to

by

is

effect

false in-

Prisoners

of

war

treated for refusing to dis-

attacks, the

body

to

which

dissemination

information or pass-words when not

take a

of being a

dishonourable, and con-

or condition of the

False

are j)ermissible

win

if

and then deceives the enemy with

formation,

false

but

enemy under pretence

overtures to the
traitor,

to

the customs of war.

surprise, or to turn

joerfidious,

Indeed, to

a position

more glorious nowadays

of

by

to a General

the object by force, in proportion as to

a great battle with little slaughter

is

more

credit-

able to the skill of the General than to gain a bloody

victory.

It

must, however, be observed that no

deceit is allowable

gagement
spoken.

exists

To

and contrary

where an express or implied en-

that the truth should be acted or

violate such an
alike

dictates of honour.

engagement

to the cus^-oms

For example,

of

it is

is

perfidy,

war and the

a gross breach

INTERNATIONAL LAW

150

lect. viir.

of faith and an outrage against the customs of war

to hoist a Hospital flag

to the

on buildings not appropriated

wounded, or to use a place protected by a

Hospital flag for any other purj)Ose than a Hospital.

The opinion here expressed,

that successes gained

through a spy are more creditable to the

commander than

successes in

drawn

skill

battles,

of a

was very

largely held in the last century, and military writers

of great celebrity have

made

use which they

accounts of the successful

left

and their

of spies

services.

Frederick the Great of Prussia, in November 1760,

published Military Instructions for the use of his

on a wide

Generals, which were based

He

ledge of the matter.

spies,'
'

spies

'

double spies/

by compulsion.'

spies

who

side

they

meant

practical

classed spies as
spies

By

of

'

know-

ordinary

and

distinction,'

double spies

'

he meant

also pretended to be in the service of the

betrayed

officers

by

spies

of distinction

'

he

of Hussars whose services he found

useful under the peculiar circumstances of an Aus-

When

trian campaign.
self

ful

spies

among

guard which

he could not procure him-

the Austrians owing to the care-

their light troops kept

around their

camp, the idea occurred to him, and he acted on

it

with success, of utilising the suspension of arms that

was customary

make

after a skirmish

between Hussars, to

those officers the means of conducting episto-

lary correspondence with

the officers on the other

THE MODERN LAWS OF WAR

LECT. Yni.

side.

'

Spies

When

way.

of compulsion

151

he explained in this
you wish to convey false information to
'

an enemy, you take a trustworthy soldier and compel

him
all

enemy's camp to represent there

to pass to the

that

you wish the enemy

to believe.

You

also

send by him letters to excite the troops to desertion

and in the event of

its

being impossible to obtain

in-

formation about the enemy, Frederick prescribes the

following

choose some rich citizen

who

has land

and a wife and children, and another man, disguised

as

his

enemy's language.
latter

who

servant or coachman,

understands the

Force the former to take the

with him to the enemy's camp to complain of

injuries sustained, threatening

him

man back with him

bring the

that if he

after

fails

to

having stayed

long enough for the desired object his wife and

children shall be
myself,'
this

good

he adds,

method, and

'

'

was

constrained to have recourse to

it

succeeded.'

The humanity and

of Frederick the Great have never been

faith

how much of these principles survive

our own times we can gather from Lord Wolseley's

celebrated
to

hanged and his house burnt.

but

Pocket Book.'

Soldier's

'

to send out a spy

is

'

The

best way,' he suggests,

to send a peasant with a letter

written on very thin paper, which

so tightly as to be portable

half long,

and

may

be rolled up

in a quill an inch and a

this precious quill

may

be hidden in

the hair or beard, or in a hollow at the end of a

INTERNATIONAL LAW

152
walking

stick.

It

also

is

good plan

paper or the leaves of the

Xew

then

and

safe against discovery,

held before a

The word
" slave."

'

will

We

It

As

are brought

by

is

legible

or near a red-hot iron.

spy" conveys something

up

falsehood.

as repulsive as

keep hammering along with the con-

viction that

"honesty

truth always

wms in

is

the best policy," and that

These sentiments

the long run.

do well for a copy-book, but a

them had

become

disgrace even to succeed

it

Testament.

Lord Wolseley, 'we

a nation,' adds
to feel

fire

to write

lemon juice across a news-

secret correspondence in

when

LECT. vni.

better sheath his

sword

man who

acts

upon

for ever.'

One of the most important subjects of which the

new Manuals treat is the person of the enemy. The
enemy,

down, consists of armed

laid

it is

The

of the

unarmed

war

that armed forces as long as they

is

pojDulation.

first

be destroyed by any legitimate means.

killing

an armed

As soon

as

man

to

men who

and

principle of

may

resist

The

right of

exists only so long as he resists.

he submits, he

a prisoner of war.

forces

is

entitled to be treated as

Quarter should never be refused

surrender, unless they have been guilty

of some such violation of the customs of war as would

of itself expose

when

them

to the penalty of death

so guilty they shotild,

whenever

taken prisoners and put upon their

executed, as

it

is

seldom

and

practicable, be

trial before

justifiable in a

being

combatant

THE MODERN LAWS OF WAR

LECT. viir.

to take the law into his

resisting

own hands

Most of you,

enemy.

153

against an un-

I imagine, are

that this principle, stated in this broad wa}^,

modern.

Most of us have

learnt,

when

aware

is

quite

children,

touching stories of the refusal of quarter to garrisons

that

had surrendered in our wars of succession with

France.

Many

of us

six citizens of Calais

difficulty restrained

resistance they

In point of
of
ful

Froissart's story of

whom Edward

from hanging

had made to the

fact,

Henry V.

remember

III.

was with

for the obstinate

siege of their town.

during this war, and the later war

against France, even

when

the success-

General was disposed to be merciful, he generally

reserved a certain

number

of the besieged, though a

small number, for execution.

When Rouen

surren-

dered to Henry Y. the latter stipulated for three of

the citizens to be

purchased their

When

left at his

lives,

disposal, of

whom two

but the third was beheaded.

the same king, the year following, was besieg-

ing the castle of Montereau, he sent twenty prisoners

to treat with the

Governor

for a surrender

when

the Governor refused to treat even

lives,

and when,

after

but

to save their

taking leave of their wives

they were escorted back to the English

army, the King of England ordered a gallows to be

and

families,

erected,

and had them

all

hanged in sight of those

When Meaux

surrendered to the

was stipulated that

six of the bravest

within the

castle.

same king,

it

INTERNATIONAL LAW

15-i

defenders should be delivered

whom

up

leci. Tiir.

to justice, four of

were beheaded at Paris, and

commander

its

once hanged on a tree outside the walls of the

Xo

doubt this severity was due in

gi-eat

at

city.

degree to

the hard meastire which in those days was always

dealt out to

when

there

force

which had

was no chance of

one ground

resisted

And

this is

practices

which

success.

on which the savage

an attack

accompanied storms and sieges were exjDlained

it

but

always to be recollected that in these French

is

and EngHsh wars there was another cause of exIn the minds of those who waged

treme truculence.

them they were wars of

succession,

and questions

therefore of the faith and submission due to a

reign

mixed themselves up with the ordinary con-

On

siderations of the field.

them
III.

sove-

reading the accoimts of

carefully, the special severities of

and our Henry Y.

may

our Edward

be seen to be constantly

explained by the successful king's belief that he was

dealing with traitors

and in

fact it

who had surrendered

a2:)pears

to

have been the conviction

that the population attacked

the General of the

themselves

owed

legally fealty to

army attacking them, which

led

specially to the cruelties of these wars, just as a con-

viction of the lawfulness of the severest ptmishment

for heresy

wars of

and

infidelity led to the savageness of the

religion.

There

is

no doubt that

at present

the Manuals state the practice correctly, that quarter

THE MODERN LAWS OF WAR

LEOT. Ylii.

155

ought never to be refused to men who surrender, unless

they have been guilty of some such violation of

war

the customs of

would of itself expose them to

and when so guilty they should

as

the penalty of death,

whenever practicable be taken prisoners and put upon

their trial before they are executed, for
justifiable for a

own hands

it

seldom

is

combatant to take the law into bis

against an unresisting enemy.

was one which was largely discussed

ference of Brussels, and

it

at

The point
the Con-

was proposed by some of

the delegates that even spies should be no longer

executed

when

taken, but should always be treated as

prisoners of war.

We

come now

to portions of these Manuals of

warlike customs which are pleasanter reading.

wounded must not only be

commands

that

if

they

fall

spared, but

'

The

humanity

into the hands of their

opponents the care taken of them should be second

only to the care taken of the wounded belonging to
the captors.

Surgeons and others in attendance on

the wounded, though forming part of the armed forces,

are

exempted from the

liability

of being

attacked

unless they divest themselves of their non-combatant

character

may

by

actually using arms, in which case they

be treated as part of the combatant body.

The

same amenity and under the same conditions should

be extended to camp followers, and other persons in
attendance on the army but not bearing arms.'

INTEKNATIONAL LAW

156

The

first

and

last parts of this

lect. Vlli.

paragraph give

the results of the Geneva Convention, the furthest

point which has at present been reached by

doctrine in the actual conduct of war.
tion
it

was signed on August

was drawn up

of the

wounded

22, 1864.

humane

This ConvenIt states that

for the amelioration of the condition

of armies in the

a few of its principal provisions

field.

I will read

you

'Ambulance and military Hospitals

shall be acknow-

ledged to be neutral, and as such shall be protected

and respected by belligerents so long

wounded may be

therein.

as

any

sick or

Such neutrality

shall

cease if the ambulances or Hospitals should be held

a military force.

by

Persons employed in Hospitals and

ambulances, comprising the

staff for superintendence,

medical service, administration, transport of wounded,

as well as chaplains, shall participate in the benefit

of neutrality while so employed, and so long as there

remain any wounded to bring in and to succour.'

in the preceding article

may

occupation by the enemy continue to

fulfil

The persons designated

even

after

their

duty in the Hospital or ambulance which they

serve, or

to

may withdraw

which they belong.

when

in order to rejoin the corps

Under such circumstances,

those persons shall cease from their functions

they shall be delivered by the occupying army to the

outposts of the enemy.

As

the equipment of military

Hospitals remains subject to the laws of war, persons

THE MODERN LAWS OF WAR

LECT. Yiii.

157

attached to such Hospitals cannot on their withdraw-

ing carry

away any

property

and under the circumstances an ambulance

shall,

articles

on the contrary, retain

its

own

equipment.

who may

tants of the country

wounded

but their

Inhabi-

bring help to the

and remain

shall be respected

private

Generals of the belligerent Powers shall

The

free.

make

it

their

care to inform the inhabitants of the appeal addressed

humanity, and of the neutrality which shall

to their

be the consequence of

Any wounded when

it.

enter-

tained and taken care of in a house shall be con-

Any inhabitant who

wounded men in his house

sidered as a protection thereto.

have entertained

shall

shall be

exempted from the quartering of troops,

well

from a part of the contributions of war

as

Wounded

which may be imposed.

shall be entertained

they

nation
shall

as

or sick soldiers

and taken

care

belong.

Commanders-in-chief

may

to

of,

whatever

have the power to deliver immediately to the

wounded
permit

it

in

enemy

to be done,

Those

parties.

wounds

who have been

an engagement, when circumstances

of the

outposts

who

soldiers

and with the consent of both

are

recognised,

after

their

are healed, as incapable of serving, shall be

sent back to their country.

sent back

The

others

may

also be

on condition of not again bearing arms

during the continuance of the war.

together with the persons

Evacuations,

under whose du^ections

INTERNATIONAL

158

they take place,

neutrality,

shall

be

LAW

lect. viii.

by absolute

protected

distinctive and uniform

flag shall be

adopted for Hospitals, ambulances, and evacuations.

It

must on every occasion be accompanied by the

neutral flag.

badge

for

arm

the

allowed for individuals neutralised

thereof shall be

also be

but the delivery

The

to the neutral authority.

left

and the badge

flag

shall

shall bear a red cross

on a white

ground.

The conduct of the Hospitals established under the

Geneva Convention has been

carried

on by surgeons,

and military servants, with the greatest

nurses,
sacrifice

and with the greatest enthusiasm.

I hope, will ever

self-

Nothing,

occur to provoke retrograde measures

with regard to so great a reform.

At

the same time

there are

some drawbacks, from

view,

the application of the provisions of the

to

Geneva Convention, on which

in conclusion.

that

it

is

manders
faith

very

am

told

difficult

a military point of

I will say a few

words

on very excellent authority

to persuade

military

in the field of the perfect fairness

com-

and good

with which these provisions are carried into

action.

You may

not

fire

on a Geneva Hospital or

ambulance, and yet the Geneva Hospital, with

its

ambulances and appurtenances, generally kept a good

deal in motion,

is

a very extensive set of structures,

and

protects a considerable portion of the field from the line

of

fire.

Generals are apt to think, or to persuade

LECT. vnT.

THE MODERN LAWS OF WAR

themselves, that the Hospital has been put

159

m a locality

either expressly designed to cover the fire of one party

or another, or to prevent the fire of one party from being

as effective as

it

might

be.

There

is,

am

persuaded,

a great deal of delusion about these suspicions, delusion

unhappily of the nature which

arising in the

is,

constantly

minds of men actually engaged

deadly struggle.
here

is

that the

All that

we have

most abundant good

in a

a right to say
faith

should be

used in the localisation and use of these beneficent

mitigations of the hardships of war, and that no

punishment would be too severe

matter his rank,

for

an

ofiicer,

who knowingly used them

no

for the

purpose of inflicting warlike injury on an opponent.

160

LAW

INTERNATIONAL

LECTURE

lect. ix.

IX.

RULES AS TO PRISONERS AND QUARTER.

At

the close of

my

last lecture I

Convention of 1864 as the

most

recent, point of

nations

spoke of the Geneva

advance reached by a concert of

attempt to mitigate the inevitable

in the

stood, contains a

Law,

International

sufferings of war.

number

is

The

Eomans put

historically descended

He

of the slave.
it,

fell

status of the

and family

forfeited to the captor all the rights

order of the captor, and anybody

title,

under-

from the status

lost liberty, country,

which he possessed, and was bound

captor in

now

represents the class which, as the

had

by capture he had

as

of rules of greater antiquity

having the same object in view.

prisoner of war

as well as the

farthest,

to the

into disrepute

end of his

and decay

to labour at the

who

But

life.

chiefly

influence of the Christian Church, a

succeeded the
as slavery

owing

to the

number of

rules

gradually grew up for the purpose of limiting the

power of the captor over the prisoner of war.

may

They

be described as intended to prevent his being

PRISONERS AND QUARTER

LECT. IX.

IGl

treated actually as a slave, in the form

now

have

the great

which they

In the Manuals which several of

taken.
civilised

have prepared

states

for

their

officers in the field, it is declared that the object of

detaining prisoners of war

again in the

part

restraint, therefore,

as

is

sufficient

is

to prevent their taking

operations

So much

of war.

and no more, should be applied

for that

purpose.

They cannot be

compelled to aid their captors in military operations,

but they

may

be employed in any other manner

able to their condition.

The money which they earn

by work should be placed

to their credit after deduct-

ing the expenses of subsistence.

who

suit-

prisoner of war

has committed an offence against the customs

of war

such, for example, as stabbing or robbing

wounded men

may be

considered to have forfeited

the character of a prisoner of war, and be punished

with death for his crime.

The primary obhgation

support prisoners of war necessarily

captor,

prisoner of war, un-

he has given a pledge or promise not to escape,

justified in
is

with the

and he should maintain them in a manner

suitable to their condition.

less

lies

to

making the attempt

but

if

is

retaken he

not punishable by death, or otherwise, for having

made the

attempt, as the customs of war do not

regard an attempt to escape on the part of a prisoner

as a crime.

On

prisoners

war with a view

of

the other hand, a rising amongst

to

effect

general
31

INTERNATIONAL LAW

162
escape

may

lect. ix.

be rigorously punished, even with death

in the case of absolute necessity, as self-security

is

the law of the conqueror, and the customs of war

the

justify
Stricter

use

of

means necessary

that

to

means of confinement may be used

But

unsuccessful attempt to escape.

war cannot be

ill

end.

after

an

a prisoner of

treated or punished for refusing to

give information as to the forces to which he belonged,

or for giving false information.
It

has happened in modern days that after great

wars, or where communication between the belligerents was possible during them, serious complaints

have been made of the imperfect discharge of the obligations

on

Law

imposed by International

or

of the

War

by usage

At the

a captor holding a captive in duress.

close

of Secession between the Northern and

Southern sections of the United States, the Northern

armies obtained possession of the person of a Confederate

prisoners taken

He had
his

in

charge

of

the

by the Confederates during the war.

been accused of barbarous cruelties towards

enemies

army,

who had been

officer

after

who were
a trial

captives,

and the Northern

which on the other

side

was

charged with every kind of carelessness and irregularity,

put him to death by hanging.

Government was,
the end of the

at the

last,

The English

beginning of this century and

constantly accused of barbarity

towards the French prisoners

who were

detained in

PRISONERS AND QUARTER

LECT. IX.

1(3

the hulks at Portsmouth and other ports

bably to this day

French that
the

is

it

this is

and pro-

commonplace amongst

the

one of the greatest crimes which

have perpetrated against themselves.

English

England was

in reality in great difficulties in pro-

viding places of confinement for the prisoners through

the

want or

and in the
Napoleon

scarcity of such places in this country,

last part

I. is

of the struggle the

now known

Emperor

to have been indisposed

to facilitate

exchange of prisoners between the two

countries.

Gathering his vast armies not only froui

France, but practically from the whole of the Continent,

he looked with

little

favour on anything that would

add to the numbers of the British army, which he

believed to be smaller than

it

really was, or

on any-

thing that would increase the extent of his

overgrown
the

War

war

at

forces.

Still it is

own

probable that both in

of Secession, and in the French and English

the

beginning of

tenderness was

shown

the

century,

to prisoners

and

too
I

little

hope that

with the emphatic expressions which are contained

in the

new Manuals, and which

the law in the

future

to

field,

make

prisoners of war.

will henceforward give

there will be no reason in the

grievance

of

the treatment

The only complete

the misfortune of captivity

is,

mitigation of

of course, to be found

either in the escape of the prisoner,

said a few words, or else in

of

on which

have

some rules which should

M

INTERNATIONAL LAW

164

lect. ix.

authorise his discharge from the captive condition.

In

probability these methods of releasing prisoners

all

are all descended

One

extinct.

from the system of ransom now

result of the theory that the captive

had become a slave was, naturally, that

able he

might pay to

if

his captor such a price as

induce him to release what had become his

Very large sums of money seem

perty.

he were

to

would

own

pro-

have been

exacted in the Middle Ages as the ransom of a mailed

knight when taken prisoner.

of birth and of wealth

He was

usually a

man

but as he lost his relative

importance, and as the most effective part of armies

came

to consist of the men-at-arms,

mercenary troops carrying a new

a

number

class of

of rules present themselves

intended to

facilitate

bulk of the prisoners.

is

and afterwards of

as

knights,

which are

the voluntary discharge of the

After the battle of Poitiers

expressly stated that there were so

taken

weapons,

many

it

prisoners

make it necessary to discharge the

debiting them with the amount of their
to

ransom and not

of the captives,

at

once exacting

it

and that the

rest

whose number was very great indeed,

were exchanged.

Exchange has now become one of the regular

customs of war, and one of the most humane and
beneficial,

and much disrepute

the refusal to

admit

it.

At

is

usually incurred

by

the same time, while

exchange, says the text of the Manuals which I have

LECT. IX.

PRISONERS AND QUARTER

been

is

citing,

mode

ordinary

the

prisoners of war, a nation

is

165
of

releasino-

not guilty of any actual

breach of the customs of war in refusing to exchange

its

prisoners,

to the close of the

Exchanges of prisoners take

war.
for

and may detain them

number, rank

for rank,

number

place

wounded

wounded,

for

with added conditions for added conditions, such, for

instance, as not to serve for a particular period.

In

exchanging prisoners of war such numbers of persons

of inferior rank
for

may

be substituted as an equivalent

one of superior rank as

may

be agreed upon, but

the agreement requires the sanction of the Govern-

ment

or of the

prisoner of

commander of

war

is

in

to the captor his rank,

the

army

in the field.

honour bound truly

and he

is

to state

not to assume a

lower rank than belongs to him in order to cause a

more advantageous exchange, nor

a higher rank for

the purpose of obtaining better treatment.

Prisoners of war are also not infrequently released

through pledging their word

ditions

to observe certain con-

imposed by the captor.

pledging his word

is

prisoner of war so

said to give his parole,

and

if his

parole be accepted by the captor, to be paroled.

usual pledge given with a parole

the existing
active

war.

This pledge

service against the

to internal service,
recruits,

is

enemy.

The

not to serve during

only extends
It does

such as recruiting

or

to

not refer
drilling

quelling civil commotions, fighting against

INTERNATIONAL

LAW

unconnected with

the

166
belligerents

lect. ix.

paroling

gerents, or the civil or the diplomatic service

may

a paroled person

by the

be employed.

down

a voluntary

is

The captor

contract entered into between the parties.

is

on which

It is laid

parolmg

legal authorities that

belli-

not obliged]to offer to parole a prisoner of war, and a

prisoner of

war cannot be compelled

may remain

but

a captive.

the names of officers and

made

be

in writing

to give his parole,

It is a rule that a list of

men

paroled should always

and be carefully kept.

further a rule that a prisoner of

It is

war has no authority

to pledge himself never again to serve against a particular

The pledge must be confined

enemy.

to a

limited time, as he cannot divest himself wholly of the

duty which he owes to his sovereign and country.

The
be

right of a prisoner of

still

If

further limited

prisoner

make

war

to give his parole

by the laws of his own country.

an

engagement which

approved of by his own Government, he

is

commanding

officer

not

is

bound

return and surrender himself to the enemy.

general rule the

may

to

As

has an implied

authority to give his parole on behalf of himself and

the officers and
officer

his
if

men under

ought not to give

men without

such an

officer

his

command

jDarole either for

an

inferior

himself or

the authority of a sujoerior

be within reach.

And

officer,

according to

the English practice a state has no power to force

its

how

far

subjects to act contrary to their j)arole

but

PRISONERS AND QUARTER

LECT. IX.

167

authorised to refuse such paroles, and to force

it is

its

paroled subjects back into the enemy's lines, would

As

seem to be in principle doubtful.

it

would appear advisable

a general rule

to admit of the validity of

the paroles, but to punish the individuals

who have

given them contrary to the laws of their country.

recaptured prisoner

who has violated his parole may

be punished with death

usually

is

except in

but the modern practice

to abstain from

an aggravated

the infliction of death,

and to substitute

case,

strict

confinement with severities and privations not cruel

in their nature or degree.

These rules, which tend to ameliorate the condition

and hopes of prisoners,

history of

There

are, relatively to the

modern war, of ancient

is

whole

origin.

another set of rules, on which I propose

to say something,

which relate to the treatment of the

general population of the enemy's country, and these

among the most modern

system.
They constitute a
are

but of very great difficulty

parts of the International

subject of great interest

;

and indeed

it

was the

attempt to construct a sort of code on this subject

which brought the discussions of the Conference of

Brussels to an end, and deprived

its

results,

as

whole, of the authority which they otherwise might

have possessed.

may
all

How

the questions involved arose I

perhaps best express in the following way

In

wars waged by armies of the modern type, and

there arrives a point at

which one

side or the other

campaign has ended

legitimately think that the

favourably for him.

may

lect. ix.

war between France and Germany,

especially in the

may

LAW

INTERNATIONAL

168

In the Franco-German war we

say that this point was reached as soon as the

German armies had invested

may have

can remember, and others

Leon Gambetta, a

lowed.
so-called

But some of you

Paris.

principal

read,

what

member

fol-

of the

Government of National Defence, escaped

from Paris in

and established a separate

a balloon

From that point a

new campaign of a new nature may be said to have
begun. Large forces were brought together by Gam-

or branch Government at Tours.

betta, consisting chiefly of

fragments of other armies

which had been stationed

in

marched westwards

or had

Germans, and, besides

hitherto

particular

localities

defeat

from the

after

these, of a great part of the

unarmed population of the country

his standard

under what was called a

called to

levee en masse.

This part of the war was conducted with some success

on the part of the French, but

a large

number

of

new

it

at

once gave

rise to

questions as to what should

be allowed in the conduct of war.

The

principles

agreed upon by the Brussels Conference appeared to

have been these

The

first

duty of a

citizen is

to

defend his country, but this defence must be conducted

according to the customs of war.

require that an

These customs

enemy should be able to distinguish

PRISONERS AND QUARTER

LEOT. IX.

169

between the armed forces and the general population

may

of a country, in order that he

spare the latter

without exposing his troops to be attacked by persons

whom

he might reasonably suppose to be engaged

only in peaceful capacities.

Further, war must be

conducted by persons acting under the control of

some recognised Grovernment having power

end to

of

making

fore,

an

enemy may know

which he may resort when desirous

hostilities, in

the authority to

to put

peace.

order that the

In ordinary circumstances, there-

persons committing acts of hostility,

who do not

belong to an organised body authorised by some

recognised Grovernment, and
tary uniform

or

who do

not wear a mili-

some conspicuous dress or mark

showing them to be part of an organised military

body, incur the risk of being treated as marauders

and punished accordingly.

Brussels

but

may be

then

the

said to

So

far the delegates at

have been reasonably agreed

qualifications

which follow

in

the

Manuals which the various Grovernments have now

circulated

show how very

far the

rules laid

down

were from being unanimously accepted or agreed to

be universal.

can be laid
ceptions.
justify a

They go on

down which

to say
is

'

No

rule,

however,

not subject to great ex-

For example, the customs of war do not

commander

in putting to death or even in

punishing the inhabitants of a town,

after

an attack

has ceased, on the ground that they fought against

170

LAW

INTERNATIONAL

lect. ix.

liim without uniform or distinguishing marks, as all

the inhabitants of a

town may be considered

legitimate enemies until the

a po]3ulation

which

already occupied

rises en

town

is

to be

Similarly

taken.

masse in a country not

by the enemy

are

entitled to be

treated as prisoners of war, and not as marauders,

but in such case they must be formed into organised

Again, when the regular Government of a

bodies.

country has been overthrown by

civil

tumult, the

absence of the authority of a recognised Government

to

make peace would not

of itself disentitle organised

bodies of men, clearly distinguishable as foes and

fighting in

conformity with

customs of war

the

against a foreign enemy, to be treated on capture as

Every case must be judged by

prisoners of war.

own circumstances, having regard

its

to the principle that

persons other than regular troops in uniform, whose

dress

shows

their

hostility against

character,

committing

an enemy, must,

if

acts

of

they expect when

captured to be treated as prisoners of war, be organised in such a

manner or

fight

under such circum-

stances as to give their opponents due notice that

they are open enemies from

whom

resistance

is

to be

expected

The extreme

difficulty of arriving at

agreement as to a new

set of rules

on

complete

this

vexed

subject proved insurmountable at the Brussels Conference

and in point of fact the debates showed that

PRISONERS AND QUARTER

lECT. IX.

bottom

the

at

of the

discussion

stake were the diflPerences

who

iii

171

the matters

at

the interests of states

possess such vast armies as served under the

colours

of the

Germans or the French, and those

smaller

states

which, either from policy or from

poverty ^or from smallness, declined or were unable

to

keep on foot armies on that

The following

scale.

remarks are to be found in the despatch in which

the English Secretary of State, Lord Derby,

up the

He
in

results of this

summed

most remarkable controversy.

says at the fifth page of his despatch, published

1875

'

The second chapter of

the report of the

Conference relating to combatants and non-combatants

showed an equal

over, in the long run,

difference of opinion,

by a compromise.

delegate, in his observations

on the

smoothed

The Swiss

article requiring

the use of a distinctive badge, recognisable at a distance,

as

remarked that a country might

rise

eii

masse,

Switzerland had formerly done, and defend

without organisation and under no command.

itself

The

patriotic feeling which led to such a rising could not

be kept

down

and although these

might not be treated

patriots, if defeated,

as peaceful citizens,

it

could not

be admitted in defence that they were not belligerent-'

The English

delegate also reported that during the

general discussion on the subject of this chapter the

Netherlands delegate remarked that

down by

the

German

if

the plan laid

delegate was to be sanctioned,

INTERNATIONAL

172

on the adoption of those

have the

drawn up

as

belligerents

effect of

LAW
which

articles

in the

lect. ix.

relate to

project,

would

it

diminishing the defensive force of

the Netherlands, or render universal and obligatory

service necessary

a military revolution

to

which the

He

public opinion of the Netherlands was opposed.

therefore reserved

more than ever the opinion of

The Belgian

Government.

made

also

In the opinion of the

of reservation.

declaration

delegate

his

Belgian delegate no country could possibly admit that

if

the population of a de facto occupied district should

rise in

arms against the established authority of an

invader, they should be subject to the laws in force in

He

the occupying army.

admitted that in time of

war the occupier might occasionally be forced

with severity a population

treat

and that from

its

forced to submit

who might

but he repudiated the right of any

to

justice of the

enemy of those men who from

require

motives and at their

to

The Swiss
that

the

the

rise,

weakness the population might be

Government

selves

to

the

own

dangers

delivering over to the

risk

patriotic

might expose them-

consequent

upon

rising.

who had previously pointed

Conference was now engaged upon
delegate,

out
the

cardinal points of the whole project, openly declared

that

two questions, diametrically opposed

other,

were before the Commission

to

each

the interest, on the

one hand, of great armies in an enemy's country, which

PRISONERS AND QUARTER

LECT. IX.

demands security

for

their

their rayon of occupation

ciples of

war and the

173

communication and

for

and, on the other, the prin-

interests of the invaded,

which

cannot admit that a population should be handed over

criminals

as

to justice for

The

against the enemy.

flicting interests

was

having taken up arms

reconciliation of these con-

at this period impossible in the

case of a levee en masse in the occupied country,

and

in the face of the opposite opinions expressed, until a

them was accepted by the

meeting, passing over this point, on which the greatest
provisional modification of

disagreement had been shown.

These

difficulties,

which prevented the project of

the Brussels Conference from becoming part of the

International

Law

of civilisation, are no doubt to be

attributed to the fact that reminiscences of the great

war between France and Germany dominated the

whole of these debates.

It

is

one among

many

examples of a truth of considerable importance, that

the proper time for ameliorating the critical parts of
International

Law is

succeeding a great
to

not a time immediately or shortly

crisis.

you some conclusions

me

to-

Hereafter I shall point out

to

which

this truth

seems to

point.

There

Law upon

is

another part, however, of International

which,

if it

be possible,

desirable to have a systematic

set

it

is

extremely

of rules.

It is

perhaps an inevitable but certainly a frequent result

INTERNATIONAL LAW

174

of the present want

lect. ix.

when enemies

that

of rules,

are fighting in the same country, and one

by the

plains of the measures adopted

is

no means of punishing what

other, there

thought to be

is

an infraction of rule except retaliation

technical
is

word

is,

military vengeance.

may

execution

of

we are

For example,

by the enemy

prisoners

be followed by the execLition of an equal

ber of prisoners by their opponents.

is

told,

avenged by the com-

is

mission of a similar act on the other.

unjust

the

as

place where an out-

It takes

rage committed on one side

an

or.

Eetaliation,

reprisals.

com-

side

num-

Retaliation

an extreme right of war, and should only be

sorted to in the last necessity.

notice,' says the writer I

am

the purpose of reprobating

It

'

may

re-

be well to

quoting, incidentally for

it,

'

the idea once pre-

vailed that a garrison which obstinately defended

place

when

it

had, in the opinion of the enemy, be-

come untenable, might be put

is

to the sword.'

There

no doubt that during the Franco- German war

reprisals

were carried to unjustifiable lengths on both

sides.

The French Government has published

curious

volume which reproduces

which

either they or others

had

during the contest in France.

all

the placards

affixed to the walls

At one

Germans granted no quarter during an

village,

point the
attack on a

on the plea that twenty-five francs -tireurs

(riflemen) had hidden in a

wood near

it,

without any

PRISONERS AND QUARTER

lEOT. IX.

regular officer or uniform, and

many Germans as came withm

On another of these placards is

175

had shot down

as

range of their guns.

a notice

by a French

Prussian commander of Ch^tellerault

officer to the

in reference to the alleged resolve of the latter to

punish the inhabitants of that place for the acts of

some of the francs -tireurs.

'

give

you

my assurance,

threat for threat, that I will not spare one of the

hundred Prussian
hands

'

And

officer in

soldiers

two

whom you know to be in my

indeed General Chanzy, himself a gallant

high place, wrote to the Prussian com-

mander of Yend6me, and stated that he intended to

fight wdthout truce or mercy because it is a question

now

not of fighting loyal enemies but hordes

of devastators.

On

this great subject the Brussels

Conference was able to do but

little

except to suggest

that retaliation should only be resorted to in the

most extreme

cases,

and should be conducted with

the greatest possible humanity.

LAW

INTERNATIONAL

176

LECTURE

lect. x.

X.

RELATIONS OF BELLIGERENTS ON LAND.

The

Brussels Conference failed to solve a

of questions of

modern

number

origin which have arisen as

to the status of the civil population of a country

when, by rising en masse, they take upon themselves

military duty

in

resistance

to

The

an invader.

German scheme, which was submitted to the

Conference, failed to command support, and a number

trenchant

of rules, which were not open to the same objections

as those

which the German delegate proposed, were

not universally acceptable.

many

But, as in the case of

other recommendations

Conference, a large

number of

emanating from the

their

proposals are

found in the Manuals of warfare which so many

civilised

Governments have now placed

of their officers.

point which

As

regards

had to be

the

in the

hands

most important

settled, there

is

a general

tendency to advise that a uniform of some kind

be
that

adopted
the

by the

corps which

non-military population,

shall

and

they form shall be treated

KELATIONS OF BELLIGERENTS ON LAND

LEOT. X.

177

with humanity, and not shot or hanged as mere

marauders.

These questions do not become of much practical

importance

till

a large part of the invaded country

has been occupied by the forces of the invader.

In

the former lecture I took the investment of Paris

by

the

German

war

at

troops as exemplifying the point of a

which

portance.

this

We

branch of law assumes a new im-

have

now

to consider the legal posi-

tion of that part of the invaded country

which

under military occupation by the enemy.

The view

much changed

of a country in such a position has

modern

Of

times.

Land,

much

affected

like everything else,

by occupancy

a citizen

embodying a

who

by the Roman

might be captured

what the Romans

(occupatio) subject to

which

called post-liminium^ a legal rule

described as

in

old the theory of the position of

an invaded country was

Law.

is

legal fiction

is

generally

under which

should after captivity return to his

country, or property which after capture should

fall

again into the hands of the restored owner, reverts

to his

or

its

antecedent position.

militarily occupied

was regarded

as

Thus

territory

passing to the

occupant subject to the ill-defined risks arising from

the return of the former sovereign.
Great,

when he had invaded

pelled the population

and there

is

Frederick the

a country, usually com-

to supply

him with

recruits

one instance in which the King of

INTERNATIONAL

78

LAW

lect. x.

Denmark sold what were tlien two Swedish provinces

Bremen and Verden to Hanover. The inconvenience of this condition of the law was much

the close of the Seven Years' War, and the

felt after

position of a country once invaded, from which the

enemy has

retired,

was always

by

settled

Manifold as have been the

treaty.

particular

variations of

boundary in Europe, they are now always regulated

by

treaty at the end of a war, and even in the East

it is

now

not easy to find territory held by the rights

The only

arising from simple conquest.

a

new province held on

the mere

and incorporated with the other

conquering country,

known

is

the

Lower Burmah.

as

title

instance of

of conquest,
of the

territories

Indian province

long

The King, who

still

retained a part of his territories, which he reigned

over at Mandalay, refused, even though utterly de-

any treaty of

feated, to enter into

the second war

cession,

Lower Burmah was

and

after

treated as al-

ready part of the general Indian territory.

I

have said that the most

wars of invasion

is

critical

moment

in great

that at which a large part of the

very

much

on the subject in the modern Manuals of war.

The

territory

is

following

An
so

is

militarily occupied.

summary

invader

much

is

is

of the law.

said to be in military occupation of

of a country as

forces of the

There

enemy.

is

wholly abandoned by the

The occupation must be

real

'

RELATIONS OF BELLIGERENTS ON LAND

LECT. X.

and not nominal, and

occupation

and

effects

is

down

it is laid

that a

even more objectionable in

than a

'

paper

'

blockade.

'

179
paper

its

character

On

the other

hand, the occupation of part of a district from the

whole of which the enemy has

an occupation of that

retired, is necessarily

district, as it is

impossible in

any other way to occupy any considerable extent of

The

territory.

true test of military occupation

is

For example, the reduction of

exclusive possession.

which dominates the surrounding country

a fortress

gives military possession of the country dominated,

but not of any other fortress which does not submit

to the invader.

Military occupation ceases as soon

as the forces of the invader retreat or

manner

as to quit their hold

advance in such

on the occupied

terri-

In the event of a military occupation the au-

tory.

thority of the regular

Government

that of the invading army.

invader

is

the law of war.

The
It is

is

supplanted by

rule imposed

by the

not the law of the

invading state nor the law of the invaded territory.

It

may

in its character be either civil or military, or

partly one and partly the other.

source from which

it

derives

its

In every case the

authority

is

the same,

namely the customs of war, and not any municipal

law

and the General enforcing the rule

only to his
people.

own Government and

The

is

responsible

not to the invaded

rule of military occupation has relation

only to the inhabitants of the invaded country.

n2

The

INTERNATIONAL LAW

180
troops

and camp followers in a foreign

which has been occupied

army remain
in

lect. x.

let

us say by the English

under English military law, and are

amenable to the rule of military

no respects

As

occupation.

country

a general rule, military occupation

extends only to such matters as concern the safety of

the army, the invader usually permitting the ordinary
civil tribunals

of the country to deal with ordinary

The

crimes committed by the inhabitants.

however, to be adopted in such a case

He may

cretion of the invader.

is at

tribunals

the dis-

abrogate any law in

the country, and substitute other rules for

create special tribunals, or he

course,

may

it.

He may

leave the native

to exercise their usual jurisdiction.

special tribunals created

by an invader

The

for carrying

into effect the rule of military occupation in the case

of individual offenders are usually mihtary courts,

framed on the model and carrying on their proceedings

after the

manner of
courts

technically,

Greneral

courts-martial
so

established

but of course,

by an English

would not be courts-martial within the mean-

ing of our
lated only

Army

Acts.

by the

The

courts

would be regu-

will of the General.

The most

important power exercised by an invader occupying

a territory is that of punishing, in such

manner

as he

thinks expedient, the inhabitants guilty of breaking

the rules laid
the army.

down by him

The

for securing the safety of

right of inflicting such punishment

in case of necessity

is

undoubted

but the interest of

LECT. X.

RELATIONS OF BELLIGERENTS ON LAND

181

the invader no less than the dictates of humanity

demand
act

that inhabitants

which

is

who have been

gnilty of nn

only a crime in consequence of

being

its

injurious to the enemy, should be treated with the

greatest leniency consistent with the safety and well-

being of the invading army.

The American
ment of armies

on the subject of the govern-

rules

in the field say

Martial law, or in

other words the law of military occupation, should be

and countries fully occupied

less stringent in places

and

fairly

conquered.

Greater severity

cised in places or regions

is

be exer-

hostilities exist,

must be prepared

or are expected and

complete sway

where actual

may

for.

Its

most

allowed even in the commander's

own country when

an enemy, be-

face to face with

cause of the absolute necessities of the case and of the

paramount duty of defending the country against

vasion.

To

save the country

is

of course

in-

paramount

to all other considerations.

In conclusion,

it

must be borne

in

mind

that an

invader cannot, according to the customs of war,

on the inhabitants
actively

country.

in

to enlist as soldiers or to

military

The theory

operations against
in its full

country militarily occupied

lative

power passes

all

sway

engage

their

is this.

call

own
In a

executive and legis-

to the invader.

It does not fol-

low that he exercises these powers, but theoretically

they belong to him.

some observations

The Duke of Wellington made

in the English Parliament

which

INTEBNATIONAL LAW

182

recognised as authoritative in

are

Manuals.

nor

less

the

army

Martial law/ he said,

in fact, martial

commands
bound to

that
lay

it

who

that

is

more

neither

is

who commands

law means no law

at all.

declares martial law and

regulations and

distinctly the

which

his will is to be carried out.

have in no country carried out martial law

to say, I have not governed a large proportion

by

of a country

do

modern

shall be carried into execution is

down

rules according to

the

all
'

than the will of the General

Therefore the General

Now,

LECl". x.

my own

will.

I declared that the

according to
execution

its

my

own

But then what did

country should be governed

national law, and

so declared will.'

carried into

Comparing

of the law with that from which

we

this state

started, it is

evident that the ancient practice and theory of occupation have

much

connection with

changed.

They have not now any

Roman Law,

nor would any one

nowadays think of borrowing the Roman

their rules.

The modern

military necessity, and

necessity.

because,

them.

An

is

practice rests, in fact,

for

upon

circumscribed by the military

invading General can do certain things

by the hypothesis, there

is

no one

In England the legal rule

peace as in war.

ployed in our

Law

The

is

else to

the same in

soldiery can always be

own country when

do

em-

sufficient necessity

can be shown for using them through the temporary

or local abeyance of civil authority.

LECT. X.

RELATIONS OF BELLIGERENTS ON LAND

183

This state of things comes to an end with the

Wars do not

cessation of war.

in our

as did the old wars of succession

religion.

There

is

always

time a treaty of peace.

war

in closing a

is,

by the Germans

and the old wars of

some moderate

within

Indeed, the modern difficulty

sometimes, to find an authority

capable of making peace.

felt

day linger on,

after

This difficulty was

much

they had proceeded a great

length in their conquest of France in the

last

war.

They made up their minds that the only authority

which could make a treaty on the part of France
which Frenchmen would respect was a National
Assembly, and therefore before making peace they
an Assembly should be

insisted that such

1

think

it

may be

treaties of peace

to an end.

useful to say a few

by which war

is

elected.

words on the

nowadays brought

In modern times a peace

is

always pre-

ceded by an armistice, and an armistice by a suspension

of arms^ which
laid

down by

is

The

only a shorter armistice.

the international lawyers

is

rule

that a state

brought to an end by a treaty of peace or by a

general truce. A treaty of peace puts an end to the war

of war

is

and absolutely abolishes the subject of

it

a general

truce puts an end to the war, but leaves undecided

the question which gave occasion to

it.

In modern

times these general truces have fallen oat of use.

They were common enough in the Middle Ages,
especially between

the

Turks and

their

Christiaji

184

INTERNATIONAL

enemies, because

LAW

lect. x.

the religion of neither party per-

mitted the combatants to conclude a definite treaty of

peace.

down that

has always been laid

It

treaties

and

general truces can only be concluded by the sovereign

power of a

An

state,

armistice

is

and not that of any other authority.

defined as a partial truce.

to conclude an armistice

is

The power

essential to the fulfilment

by the commanding ofiicer of his ofiicial duties, and

therefore he is presumed to have such power delegated
to

him by

his sovereign without

This presumption of authority

that

it

any

is

special

held to be so strong

cannot be rebutted by any act of the sovereign.

If an ofiicer

makes an armistice

in disobedience to

orders received from his sovereign, he

that

command.

sovereign

armistice,

but the sovereign

inasmuch

posed to have

imposed on the

as the

known

is

punishable by

bound by the

enemy could not be

sup-

of the limitation of authority

ofiicer.

suggested by several of the international

It is

writers,

is

and

it is

probable, that armistices first arose

from the truce or truces of God which were repeatedly

proclaimed by the Church.

and very singular forms.

These truces took many

Thus one famous truce of

Wednesday at sunset, and

It was to
last till the following Monday at sunrise.
continue from Advent to the octaves of Epiphany, and
from Quinquagesima Sunday to the octaves of Easter.

God was

If

to begin every

any person broke the truce and refused to give

RELATIONS OF BELLIGERENTS ON LAND

LBCT. X.

satisfaction

third

he was excommunicated, and

to

councils,

The

truce

was confirmed

at

and especially at the Lateran Council

Some of the

of 1179.

the

admit him into communion under the

penalty of deprivation.

many

after

who excommunicated

admonition the bishop

him was not

185

regulations were extended into

England, and Wednesday and Friday were

as days for keeping peace.

It is

set apart

exceedingly likely

that these temporary and limited truces accustomed

the warlike communities of those days to temporary

suspensions of hostilities, and armistices manifestly

grew into considerable favour. But they

and indeed they give
difficult questions.

laid

down

as to

rise still, to a

We find

what

dictory.

On

a great

armistice.

modern times

the one side

it is

gave

rise,

number of rather
number of rules

belligerent parties

might not do during an

of these duties in

also

might do or

The views taken

are decidedly contra-

held that

all

equivocal

from during an

acts of hostility should be abstained

armistice whether they come, or do not, within the

description of acts capable of being interrupted

enemy

while on the other hand

it is

by the

contended that,

according to the practice of modern warfare, belligerents have a perfect right to alter the disposition of
their troops, construct entrenchments, repair breaches,

or do any acts

themselves

by which they may think

for

the

resumption of

fit

to prepare

hostilities.

The

violation of an armistice by either of the contending

LAW

INTERNATIONAL

186

lect. x.

parties gives to the other the right to put

to

it

but

its

confers the right to

difficulty,

private individuals only

demand

the punishment of the

The question

guilty persons.
cal

by

violation

and

an end

in all the

one of great practi-

is

Manuals the advice

is

given that the greatest caution should be observed in

the case of an armistice to specify the acts which are

or are not to be permitted during

its

continuance.

Another question which, evidently, was thought

to present great difficulties, was the date of the com-

mencement and the time of the termination of an

Supposing

armistice.

be made for a certain

that from the

of August questions have been

number of days
1st

to

it

named

the days

The usual mode

time

is

are

May

1st of

is,

both

to the

raised whether

included or

excluded.

of reckoning in England as legal

to include the first

day and exclude the

last.

Consequently, in the above-mentioned case, according

to English law, the truce begins at the

moment on

which the 30th of April ends and ceases

moment

at

should be stated from the 1st of

inclusive to the 1st of

tended
still

to

include the

August
1st

to begin at a certain

of

inclusive, if

August

short armistice the

it is

number

advisable in

May

it is

in-

or better

hour on one day, and to

end at a certain hour on another.

and

To avoid

which the 31st of July ends.

difficulties, it

the

at

In the case of a

of hours should be stated

all cases

where an armistice has

RELATIONS OF BELLIGERENTS ON LAND

lECT. X.

187

been arranged, to agree to indicate by some signal

for example, the hoisting of a flag or the firing of a

cannon

both the commencement and the termination

of the
bered,

An

armistice.
is

armistice,

only a qualified peace, and the state of

war continues, though

pended.

active

This anomalous

difiiculty in ascertaining

state

continued to be done.

stipulation,

the

is

sus-

of things leads, in
considerable

allowed to be done

Apart from particular

general rule

belligerent cannot take

to

what

are

hostilities

the absence of express stipulation, to

or

remem-

to be

it is

seems to be that

advantage of an armistice

do any aggressive act which but

for the armistice

he could not have done without danger to himself.

For example,
besieging

in the case of an armistice between a

army and

must not continue

a besieged town, the besiegers

their

works against the town, and

the besieged are forbidden to repair their walls, raise

fresh fortifications, or introduce succours or reinforce-

ments into the town.

The

last

dangerous question

which arose in Europe, arose on one of the

class of

terms which I have been examining.

Before closing this lecture

it

the substance of the statements

will be useful to note

made

in the

modern

Manuals in respect to a number of terms which

in

much

which are very loosely employed by

by

are

use in this part of military operations, but

historical

writers.

civilians

First as to

what

is

and even
called a

188

INTERNATIONAL

Capitulation.

capitulation

LAW
is

lect. x.

an agreement

for

the delivery of a besieged place or forces divided in

The com-

the field into the hands of the enemy.

manders on

either side are invested with

power

to

agree to the terms of a capitulation, inasmuch as the

possession of such powers

is

On

exercise of their functions.

extent of their powers

their exercise.

necessary to the proper

limited

is

the other hand, the

by the necessity

for

In the surrender of a place the ques-

tions at issue are the immediate possession of the place

itself,

and the

fate of the garrison.

must be limited

therefore,

declare that the garrison

capitulation,

to these questions.

is

It

to surrender uncondition-

ally as prisoners of war, or to be entitled to

out with

all

may

the honours of war.

It

may

march

also provide

that the soldiers comprising the garrison are not to

serve again during the war.

Further conditions for

the protection of the inhabitants and of their privileges,

and

for their

may

bution,

fairly

immunity from

pillage or contri-

be put into a capitulation.

stipulation in a capitulation

to the effect that

A
the

garrison should never again bear arms against the

forces of the

of the

conquering

state,

or that the sovereignty

town should change hands, would be

inasmuch

as

powers

for

invalid,

such extensive purposes

belong only to the sovereign power of the State, and

cannot ever be presumed to be delegated to inferior
officers.

A few words will not be thrown away

on Flags of

LECT. X.

EELATIONS OF BELLIGERENTS ON LAND

Such a

Truce.

189

flag can only be used legitimately for

the purpose of entering into some arrangement with

If adopted with a view surreptitiously
the enemy.
to obtain information as to the
its

enemy's

forces, it loses

character of a flag of truce and exposes

punishment of a spy.

to the

its

bearer

Great caution, however,

and the most conclusive evidence are held

be

to

necessary before the bearer of such a flag can be con-

The bearer of

victed as a spy.

a flag of truce, at the

same time, should not be allowed without permission

to

approach

near to

sufficiently

When

useful information.

an army

is

secure

any

in position, the

bearer of a flag of truce should not, without leave, be

permitted to pass the outer line of signals, or even to

approach within the range of their guns.

When

a flag of truce

is

sent from a detachment

during an engagement, the troop from which

should halt and cease
is sent
it,

should,

if

the

signal to that

The troop

firing.

commander

eff'ect

and

must be understood that

it is

to

which

it

willing to receive

is

also cease firing

firing

sent

but

it

duriag an engagement

does not necessarily cease on the appearance of a flag

of truce, and that the parties communicating with such

flags

cannot complain

carry

on the

firing.

if

those

When

it

who
is

sent

them should

intended to refuse

admission to a flag of truce, the bearer should, as

soon as possible, be signalled to

not obey^the signal, he may be

few words

may

retire

and

if

he do

fired upon.

be usefully added on other

INTERNATIONAL

190

terms of the art of war which are

I

have been defining.

LAW

lect. x.

allied to those

which

Cartel is an engagement for

the exchange of prisoners of war.

ship commissioned

She
in

for

cartel ship is a

exchange of prisoners.

the

considered a neutral ship, and must not engage

is

any

hostilities or carry

a signal gun.

implements of war except

Safe-conduct or Passport

ment given by the commander of

is

a docu-

a belligerent force

enabling certain persons to pass, either alone or with

servants and effects, within the limits occupied by the
force of such

commanding

officer.

In the so-called

Schnabele case which arose on the frontier of France

and Germany, you may remember,

it

might be an implied safe-conduct.

*

passport'

is

is

The expression

usually applied to persons, and

duct' both to persons and things.

person

was decided there

A safe-conduct for a

is

detained by sickness

or other unavoidable cause, in which case

be revoked

if it is

great expedition

the safe-conduct of a person

safe- conduct

enemy.

In such

it

terminates

safe-conduct

injurious to the State

officer preparing for a

that

may

may

is,

an

revoke

who would by means

of

be able to carry information to the

case,

however, he must give time

and opportunity to the bearer

the cessation of the cause.

such

safe-con-

not transferable, and comes to an end at the

date stated, unless the bearer

on

'

to

withdraw in

safety.

safe-conduct, however, for goods admits of their

being removed by some person other than the owner.

LECT. X.

RELATIONS OF BELLIGERENTS ON LAND

unless there

is

some

person employed.

by

commanding

191

objection against the

specific

Safe-guard

is

a guard posted

the purpose of protect-

officer for

ing property or persons against the operations of his

own

To

troops.

force such a

guard

is

by English

law a military offence of the gravest character, and

Army Act makes it punishable by death.

You may remember that not many months

our

serious uneasiness

was

ago

throughout Europe on

felt

account of an incident on the new French and German

frontier.

French

official,

belonging by birth to the

now

French,

now German, under

circum-

former German population of provinces

was found on
stances

German

territory

which made him

law.

under a

arrest

had been invited by the

help in settling border

frontier officials to

questions.

to

His defence was, that on that and

several past occasions he

German

liable

The German

officials

asserted that,

how-

ever that might be, he was on the present occasion

engaged in

acts of hostility to

Germany.

diplomatic correspondence, the

laid

down

that, if

German

functionary to cross the

for

his

After some

German Government

officials invited a

fi:-ontier

into

German

French

territory

any reason, he enjoyed an implied safe-conduct to

home in France, and therefore M. Schnabele was

released.

The controversy,

therefore,

ended in the

establishment of the point that a safe-conduct

not only express but implied.

may

be

LAW

INTEKNATIONAL

192

lect. xi.

LECTURE XL
EIGHTS OF CAPTURE BY LAND.

Before

group of subjects discussed in

I leave the

the more recent lectures,

it

may

be well to say some-

thing on a branch of the law of war

tries

to regulate incidents of belligerency that cause

sometimes as

more

by land which

much

irritation

suffering

than actual

and very constantly

This

hostilities.

is

the

law of the capture of property in land war. I said in

a former lecture that a war by land resembles a maritime war in the principles which are applied to the
capture of property
difference

happen

between

but there
the

two,

to be interested in the

is

if

a great practical

neutrals

same way

in

do

wars by

land in which they have interest as in wars by

since there are

and

no prize courts

moderation.

The

either

on land or

acquired by reduction into firm possession.

ing, however,

movable property

for the

sea,

on regularity

principle of capture

movable property, captured

is

to insist

not

is

that

at sea,

Leav-

moment, and

passing to immovable, I begin by stating that there

is

LECT. XI.

RIGHTS OF CAPTURE BY LAND

a great deal

on

complete
ing rule,

this subject in the older

title to

law books.

by

Here what

belongs.'

or supreme

by the

treaty or

entire submission or destruction of the state to

it

'

the land of a country/ says the lead-

usually acquired

is

'

193

meant

is

is

which

the sovereignty

over property sometimes

right

called

dominium eminens, the right in the sovereign, whether

corporate or single, to affect property by legislation.

In some rare cases the proprietary right, generally in

private hands, cannot be separated from the eminent

domain.

This occurs in India, and more or

probably,

all

over the East.

universal proprietor

The sovereign

less,

is

the

but in our day the quasi-proprie-

tary rights which a conquered sovereign has created

or respected,

would

in practice be maintained

Such, in

successful invader.

was the case

Burmah

recent British conquest of

the older International

fact,

Law

by

in the

But

in

books another kind of

ac-

proper.

by capture of private property in land seems

The writers appear to be
be chiefly contemplated.

quisition
to

thinking of the

seizure

of land

which

is

private

property by the soldiers of the conquering and in-

much in the same way in which the

of the Roman Empire are supposed to have

vading army,
provinces

been taken possession of by the Teutonic barbarians.

Nowadays
occurs

but

would hold

that
if it
it

is

a case

which never practically

happened, the occupant of the land

subject to the

Eoman principle

of post-

194
liminy.

If the former

occupying

should

re-

new owner would be

more conceivable case

civilian

lect. xi.

owner returned he would

vert to his old rights, and the

ousted.

LAW

INTERNATIONAL

sell for

one in which an

is

value a portion of

the land of which he has taken possession.

in theory the principle of post-liminy

would

Here, too,
intervene,

but the result would be that every sale of captured

private property

would produce a

that one can hardly conceive

modern usage

is

its

title

to

it

so bad

being effected.

The

that the use of public land and

public buildings, and the rents and other profits accru-

ing from such lands and buildings, form part of the

As

spoils of war.

regards private property in land,

belligerents in

modern times usually

as is consistent

with the exigencies of operations of

abstain, so far

war, from exercising the extreme right conferred by

war of

seizing or injuring private property or land.

This custom obtains only so long as not only the

owners, but also the community to which they belong,
abstain from

all acts

of hostility, as

it is

not unusual

for an invader to take or destroy the proj)erty of indi-

by way of punishment for any injury inflicted

by them or by the community of which they are
members on the property which he owns. In such
cases the innocent must necessarily suffer for the
viduals

guilty, but a

humane General

will not, except in a

very extreme case, destroy a village for an outrage

committed by an inhabitant of that

village, or

ravage

RIGHTS OF CAPTURE BY LAND

LECT. XI.

a district to punish an attack

From

by a body of marauders.

enemy enjoys

successful

buildings,

it is

of war except

ments of

art

made within

to

195
limits

its

the powers which a

appropriate

to be observed that the

land and

modern usages

museums, churches, and other monuand by some it is contended that no

public building can be destroyed unless used for belligerent purposes.

we now turn back

If

to

movable property,

it is

held that the arms, implements of war, and every description of

may

movable property belonging to the State

be taken possession of by an invader.

An

exception to the right of seizure of movables of the

enemy

is

torical

documents, and judicial and legal records.

An

made, indeed, in the case of archives,

his-

invader can hold them so long as he remains in

the country and requires their use

away with him

is

but to take them

an act of barbarism prohibited by

the customs of war, for the retention of such docu-

mente can by no means tend to put an end

while

inflicts

it

to a war,

a great and useless injury on the

country to which they belong, and specially to those

countries,

now numerous,

complete registration of

which, unlike England, have

titles to land.

The

seizure

of scientific objects, of pictures, sculptures, and other

works of

art

and science belonging to the public, has

derived some sanction from the repeated practice of

civilised

nations, but

would seem incompatible with

2

INTERNATIONAL

196

LAW

lect. xr.

the admitted restrictions of the rights of war, which

deprive an
to

make

enemy

of such things only as enable

resistance,

and therefore can only be

as a measure of retaliation.

justified

Seventy years ago the

enemy

question of the right of a successful

away with him works of

him

art

was

to carry

a matter of violent

controversy in this country and in the whole of Europe,

and the subject was several times debated in the

Parliament.

British

known that after the

It

is

very generally

fact

early and astonishing successes of

Napoleon Bonaparte in 1796, and afterwards in 1797,

there was only one of the small Italian States which

was not compelled

to

up

give

French Government the works of

glory of

Dying

its

chief cities.

the conquering

to

art that were the

The Apollo

Belvedere, the

Gladiator, the Medicean Venus, the Laocoon,

the Bronze Horses, were conveyed to Paris and de-

posited in the Louvre, in which they remained until

the overthrow of the

first

French Empire.

overthrow of that Empire, when the

Paris for the second

whole

city,

tioie,

allies,

On

the

entering

gained possession of the

they restored most of these famous master-

pieces to theii' original owners.

and no doubt genuinely

felt,

The French expressed,

the greatest indignation,

which was, however, manifestly treated with much

scorn

by

to look

the English writers of that day,

who seemed

upon the anger of the French or Parisian

population as amounting to an absurd refusal to have a

EIGHTS OF CAPTURE BY LAND

LECT. XI.

rule applied to themselves which

applied to others

but

if

we

197

they had freely

are to suppose that strict

law applied to the case there was something to say

against the international validity of the restorations
in the

way

which they were actually accomplished.

in

Arguments, founded on
British

this,

House of Commons,

lawyer Romilly.

works of

art

tributions,

It

was a

were submitted to the

especially

fact that

by the great

some of these

had formed part of forced military con-

which a conqueror may always

levy,

and

some were given up under express conventions

which the surrendering
ance.

state

had no power of

to

resist-

In some other cases the state to which the

made had been absorbed

in another state

during the long war with France.

For example,

return was

Venice, which
beautiful

had surrendered some of the most

works of

art in the

Louvre, had

absorbed in the Austrian Empire.

argued that

it

was

for the

It

now become
was further

advantage of civilisation

that these works of art should not be dispersed over a

number of small
all

cities in

Italy

which were not then,

of them, easily accessible, but that they should

remain in a place which on the whole was so easily

reached as Paris.

The

fact

seems to be that the carry-

ing off of these works of art from their old Italian

new rule, of war. For example,

Great, who more than once occupied

homes had been

Frederick the

Dresden, always spared the famous gallery and

its

'

INTERNATIONAL LAW

198
contents.

The new

rule

lect. xi.

was introduced by Napoleon

Bonaparte as conqueror of

Italy,

and what the

allies

in occupation of Paris applied seems to have been the

There was, no doubt,

rule of reprisal.

we throw

if

the technical rule aside, a great deal to be urged on

behalf of giving back these sculptures and paintings

They were valued by them more

to the Italian cities.

than any mere property.

Some

of these

cities before

the war were hardly ever visited except

desirous of seeing

some famous work.

by persons

As

I say, the

one tenable argument against their restoration was

the greater convenience to the civilised world of their

being

Paris

left in

distance in Italy
the

Manuals

but in an age of railways their

no appreciable inconvenience, and

is

published recently by civihsed states

condemn the capture of works of art. Our

own Manual says that the seizure of scientific objects
generally

and works of
retaliation.

art can only be justified as a

Here

table to a British
is

may

measure of

observe that an act attribu-

commander

of British troops, which

almost universally condemned in the numerous

American works on International Law, can always be

justified in the

same way.

Undoubtedly,

at first sight,

the destruction of the Capitol at Washington in 1814

is

not an act of which an Englishman can be proud but

;

on examining the history of that war,

that the British troops in
at

from the arsenal

it

will appear

Washington had been

and that

also, a short

fired

time be-

RIGHTS OF CAPTURE BY LAND

LECT. XI.

fore,

Lower Canada, then

the chief city of

had been burnt with

all its

tion,

Hence

it.

at first sight deserves unqualified

may

York,

called

public buildings

American troops who occupied

which

199

by the

this act,

condemna-

be to a certain extent justified as a measure

of reprisal.

In

all

modern books on

this subject there

is

more

or less distinct condemnation of unauthorised pillage

by the

soldiers of

an invading army

no doubt that in

fortunately,

all

yet there

pillage

is

war and

generally very easy.

un-

wars pillage does

continue, and especially in every land war.

a very old association between

is,

There

pillage,

is

and

great deal of

it,

though not of the worst kind, unquestionably took

when

place

the

Germans occupied

The English

of France.

large

in Spain abstained from

it

them

to

so far as the orders of Wellington compelled

do

He

so.

in fact sometimes

punishments

for the

from plunder

portions

employed the severest

purpose of deterring his troops

however, he was operating in a friendly

country, and would have sufi'ered serious damage by

its

being converted to unfriendliness.

may, however, authorise pillage

commander

but as to authorised

pillage there is one considerable mitigation.

Mova-

the

Roman

ble

property captured

principle,
nullius

according to

which International

and

it

Law

inherited, is res

has been several times observed, by

myself among others, that in the change of Europe

IXTERXATIOXAL LAW

200
from

Roman

to Feudal principles res nulUus appeared

become vested in the sovereign, and very often

to have

manor

in the lord of the

and

leci. xi.

lost therefore their

in

old

which they were found,

Roman

character.

becomes

Crown it is
divided among

collected

technically the property of the

together,

and then

quering troops
that

eqtiitably

booty.

as

modern usage

The

It

principle obtains in authorised pillage.

It

the con-

also to be

is

noted

authorises requisitions and forced

military contribtitions, and. on the whole, the present

that these military contributions and requi-

theor}^

is

sitions

have superseded

Requisitions
the inhabitants

all

the older forms of capture.

may be made in
may be requii'ed

without payment

three ways.

provide stippHes

to

may

secondly, they

to provide supplies at a

moderate

First,

cost,

be required

without regard

being had to the increased value accruing from the

presence of the

army

thirdly, they

to provide the suppHes on

they demand.
adopted,

is

Which

may

be required

payment of such

of these three

ways

in the discretion of the General.

price as
is

to be

Welling-

ton disapproved of forced requisitions whenever they

could be avoided

and when he entered France he sent

the Spaniards back rather than be compelled to resort

to requisition for the pur]Dose of supportiag his army.

Both the Germans and the French have constantly

exercised the i-ight

and undoubtedly the

admitted bv the customs of war

is

that

strict rule

war mav

RIGHTS OE CAPTURE BY LAND

LECT. XI.

be

made

to supply

The same

itself.

201

principles apply

money levied on a town or on

a whole community.
As an arrangement such a
levy is just, as a means of maintaining an army
to contributions of

it

and

lawful,

is

possibly

more equitable than

whether

it

remembered that

to

of

further

money

attack

on

The question

is,

very generally

exacted from

policy was, undoubtedly,

it

should be incapable

But the

neighbours.

its

requisitioned for the

with surprising

loans

is

was

requisition

France that

cripple

it

It will be

The German

the French.

cases

at the close of the Franco- German

war an enormous

so

requisition.

expedient.

is

some

in

payment was
and

facility,

it

raised

by

doubtful

is

whether the enormous increase of the French National

Debt

now the

largest in the world

which

it

entailed

has seriously affected the feeling of the French people

towards those

who invaded

them.

This subject of foreign loans brings

tion

which has excited perhaps more

me

to a ques-

interest

modes of impoverishing an enemy by

other

and one even more important than was

posed.

Can

compel

his

whom

subjects,

or any

all

capture,

at first sup-

a sovereign confiscate debts ?

own

than

Can he

community over

he has military powers, to pay to him debts

which they owe to the enemy

tile

sovereign or his

been

much

subjects

considered by

tT\

that

is,

to the hos-

The question has

o high authorities

the

202

INTERNATIONAL

Supreme Court of the United

American

LAW

lect. xi.

and the famous

States,

The Supreme

Chancellor Kent.

jurist

Court has solemnly decided that in

right to confiscate debts

still

strict

law the

exists as a settled

undoubted right of war, recognised by the

and

Law

Nations, but the Court at the same time admitted

it

of
to

be the universal practice at present to forbear to seize

and confiscate debts and

The Court would not

the opening of a war.

any debt without an

claring

says

'

confiscate

power de-

act of the legislative

After a full examination of

and decisions on

rities

on

will that such property should be con-

its

demned.

credits even in a country

We

may,

all

the autho-

this question. Chancellor

therefore, lay

it

down

Kent

as a principle

understood and

of public law, so far as the same

is

declared by the

authorities in this

country, that
ture of the

it

highest judicial

rests in the discretion of the legisla-

Union by a

special

confiscate debts contracted

the
'

enemy

'

but

This right

therefore

it

is

it is

for that purpose, to

by our

asserted

citizens

and due to

by the same authority

contrary to universal practice, and

may

impolitic right,

law

well be considered as a naked and

condemned by the enlightened conIn the

science

and judgment of modern

modern

instances in which the right has been exer-

cised, it is

times.'

worth observing that the question of

rent right was

bellige-

mixed up with the question of allegiance.

1

Kent, Comm.

i.

64.

RIGHTS OF CAPTURE BY LAND

LECT. XI.

203

For example, private debts were confiscated

as against

the Southern States by the Northern States in the war,

And

and by the Southern as against the Northern.

the same principle has a few times been applied in

India in a case where the

But the branch of

enemy was

this question

also a rebel.

which has now

been considered for more than one hundred years

less general
city,

than that which

have put

is

it is,

can a

can a sovereign, confiscate debts due from

itself

or himself to enemies

famous case of the

as follows

This

is

the point raised in the

The

Silesian loan.

history of

it is

loan of 80,000/. had been advanced by

subjects of Great Britain to the

Emperor Charles YI.

on the security of the Duchy of

Silesia, in

Silesia.

course of time, was transferred to Prussia by virtue

of the Treaties of Breslau and Dresden, and in consideration of this cession Prussia was to discharge the
debt.

The King of

took into his

Prussia, however, attached,

own hands,

the debt by

way

i.e.

of reprisals,

but this by the terms of the treaty he had no power

to do.

He

professed himself to be aggrieved

by the

decision of certain English prize courts in respect of

acts of vessels belonging to his subjects,

to

pay the British subjects the

pledged himself to pay.

interest

The English

and refused

which he had
Secretary of

State at once addressed to him, for Prussia

friendly
8,

Power

at the time, a letter dated

was a

February

1753, in which he dwells upon the unprecedented

INTERNATIONAL

204

LAW

lect. xi.

nature of the proceeding, and states that he has the

King's orders to send to the King of Prussia a report

made

to his Majesty

Prerogative Court

General

Sir

The report

of

one of which British lawyers

Office

Vattel and Montesquieu

them speak of it

as admirable

excellent example of the

International

Prussia gave

have always been exceed-

by two great foreign autho-

It is praised

of the time

the

afterwards became Lord Mansfield.

in question is

ingly proud.

George Lee, Judge of the

Dr. Paul, his Majesty's Advocate-

and the British Foreign

rities

Sir

Dudley Ryder, and Mr. Murray

who

Mr. Murray

by

Law

it is,

they both

in fact, a

most

method of reasoning of which

admits

and in the end the King of

way to its arguments, and

the interest on

the Silesian loan was ever afterwards punctually paid.

The point which

raised

book

many

by the

have been describing

facts, as

Mr.

W.

is

not strictly

E. Hall observes in his

but the opinion of the law

officers

goes into

questions besides the main question submitted

to them,

and among these the

a sovereign

trivial question

whether

can confiscate debts due to himself, and

argues against

it.

Ever

since, it

has been held that

no sovereign can under these circumstances refuse

pay the

interest

on a loan which he has contracted

cause the recipients of the interest are for the

his enemies.

The danger introduced by

pretension was

a great one.

to

be-

moment

the Prussian

Perhaps we do not

always notice sufficiently the extent to which British

RIGHTS OF CAPTURE BY LAND

LECT. XI.

financial

and economical

interests are

From

the sanctity of foreign loans.

this

country began to grow rich

205

bound up with

the time at which

till

it

became the

richest in Europe, the difficulty of finding investment

for British savings

was very seriously

felt.

In Stuart

times the surplus wealth which was not expended in

land, or

embarked

which were

still

directly in

trade or manufacture,

in their infancy,

or landed securities.

was

lent

on personal

There are plenty of allusions in

the dramatic literature of

the seventeenth century

which might be produced in proof of

scarcity of public investments

which led

this.

It

was

to the violent

struggle between the two companies formed for trad-

ing with India which were afterwards fused into the

great East India Company, and also to the hot contest

about the foundation of the Bank of England.

other

way

this scarcity led to the

In an-

enthusiasm for mere

speculative undertakings, or, as they were then called,

for Bubbles,
nies.

such as the South Sea and Darien Compa-

During the eighteenth century British savings

were invested in foreign loans wherever they could be

found, as this case of the Silesian loan shows, and pro-

bably a good deal of British wealth was embarked in

the constant loans raised

however, was at

all

But the favourite

for

by the King of France, who

times a very unpunctual debtor.

fields,

British investment

no doubt, during that century

were the

tropical

colonies

which were gradually acquired in the West Indies and

LAW

INTERNATIONAL

206

more southerly

parts of

lect. xr.

At

North America.

the end

of that century and in the beginning of the present the

English National Debt grew to such proportions as to

swallow up

all

other fields of investment

close of the great

war loans

but at the

to foreign states

became

commoner, and much British wealth was drawn to

them.

In early days they had to encounter

dangers.

The various American

States

many

had borrowed

largely, but also repudiated largely their liability

technical grounds.
rid of indebtedness

in

But

if

a sovereign could have got

by going

which he had most

on

to

war with the country

creditors, the risk

would have

been so great that probably few or no foreign loans

could have been negotiated, and the economic history
of England and Europe
rent.

The method

would have been quite

of distributing the surplus capital

of the richest countries, to

is

diffe-

greatly indebted, owes

which the

its

civilised

world

existence to this report

of the English law officers in this deservedly famous

case of the Silesian loan.

PROPOSALS TO ABATE WAR

LECT. XII.

LECTURE

207

XII.

PROPOSALS TO ABATE WAR.

In this

me

last lecture of the present course, it

desirable that I should briefly notice

seems to

some

asser-

uncommonly heard in the

the great evils of war might be

tions or suggestions, not

present day,

that

abated by the adoption of principles of action not

necessarily identical with those which have been dis-

cussed in previous lectures.

me

ments which seem to

I pass over general state-

to be

mere calumnies, such

as the charge against influential military

men, that

in every society they do their utmost to encourage the

Those who have had the

spirit of belligerency.

privi-

lege of acquaintance with famous soldiers will bear

me

out in saying that, while there

more humane, there

is

dislike or hatred of war,

it

to be inevitable.

made

is

much more

proportion of truth.

is

no

class of

men

none distinguished by a deeper

however they may believe

But another
respectable,

War,

assertion frequently

and contains a larger

it is said, is

irreconcilable

with Christian belief and Christian practice. If men

acted up to the standards of conduct which great

208

INTERNATIONAL

numbers of them

LAW

lect. xii.

theoretically accept, there

would be

This has long been the doctrine

few wars or none.

of a sect whose various services to humanity I have

and

also of

Quakers

an obscurer community, the Mennonites.

It will be evident, I think, to

some

the

commemorated

already gratefully

careful

thought on the

everybody who bestows

subject, that there

be great difficulty in adapting a

would

system which pro-

fesses to regulate the relations of individual

men with

one another, to the relations of groups of men, of

states

and

in point of fact the

Quakers have not

always been quite consistent in the application of

their

The

principle.

Quakers

of the

Pennsylvania were in the American

War

colony of

of Indepen-

dence strong partisans of the colonial cause

Benjamin Franklin has

left

and

us some curious stories

of the fictions by which the Pennsylvanian Quakers

reconciled their conscientious objections to
their
it is

war with

assist the colonial troops.

keen desire to

But

proper to observe that this opinion of the unlaw-

fulness

of

war

has, in the course

of ecclesiastical

history, seemed several times likely to become the

opinion of the whole Christian Church, or of a large

portion of
believe,

it.

We

have most of us been taught to

on the authority of a well-known passage

Tertullian, that the

of Christian soldiers

Roman
;

Imperial armies were

but the passage

with others in the same writer

is

in

full

inconsistent

and I have seen a

PROPOSALS TO ABATE AVAR

LECT. xir.

20d

long catena of extracts from patristic authorities,

extending from Justin Martyr to Jerome and Cyril,

in

which the inconsistency of the military

with Christian belief

maintained.

is

i^rofession

In

this

fact,

became one of the main points of contention between

Christians and pagans.
The contention of Celsus,
that the Christians refuse to bear arms even in cases

of necessity,
that

is

the fact

the Christians

met by Origen with the admission

is

so,

but with the argument that

do not go on campaigns with the

Emperor because they

serve

him with

their prayers.

become those of the whole

If these opinions did not

Church, the cause must probably besought in the course

of historical events, for the invading Teutonic tribes

who

spread over the Empire could not be untaught

the art

and practice of

fighting,

even when they

accepted some form of Christianity.

Passing over a

long space of time to the beginning of the modern

history of Christianity,

seemed not improbable that

it

the unlawfulness of war would become a doctrine of

all

the Protestant sects

among theologians not

quite

estranged from Catholicity, the great Erasmus wrote

as strongly of the wickedness of

of our day could do, and Sir

war

as

any Quaker

Thomas More charged

Luther and his followers with wishing to deprive

sovereigns of their authority

power of

resistance.

On

by denying

to

them the

the other hand, the writers

INTERNATIONAL

210

LAW

lect. xii.

dealt with in the foregoing lectures, the founders of

International

Law, did not adopt the opinion of

the unlawfulness of war, though they were nearly-

it,

Grotius argues vehemently against

Protestants.

all

on Scriptural grounds.

chiefly

be that he and his

body of

the

rules

I take the fact to

immediate followers conceived

which they believed themselves

to

have rescued from neglect to be more serviceable

for the

in

purpose of regulating the concerns of nations

war and

peace, than

to a direct descent

any system which pretended

from Christian records or Christian

The Law of Nature which they spoke

tradition.

and apparently believed

as if

the}^'

in,

with as

hesitation

little

English

were thinking of the

Common

Law, has not stood against the assaults of

criticism,

of,

modern

and specially not agamst the inferences sug-

gested by the modern study of primitive mankind.

But

it

with

it

did prove possible to apply the rules associated

to

human

societies in peace

though a general

belief that

and war

whereas,

war was unrighteous

would assuredly have had important effects, nobody

can say confidently what those effects would have
been, or can assert that they

would have included

the extension and stability of peace.

Another sweeping proposal

for the virtual aboli-

tion of war, one of a very different order, however,

from that just considered by me, must have come

under the notice of most of

us.

It is said that there

is

WAR

PROPOSALS TO ABATE

xn.

-LECT.

always

an

alternative

Nations fight because

to

211

contest

arms.

in

cannot go to Lny.

tliey

The

old idea that the disputes of states are referred by war

to a supernatural arbitrament

though there

is

is

now abandoned

but

no international tribunal which can

entertain as of right the controversies of nations, there

is

a substitute

for

it

in

international

arbitration.

Let, therefore, every dispute be referred to an arbitrator or to a

body of

arbitrators,

and

let civilised

com-

munities defer to the award with no more demur than

they exhibit in submittmg to the decision of a court

of justice.

remedy

belief in this

widely extended in our day.

worthy of

respect

all

voluntary associations.
to

deny that arbitration

men, adhere

to their

of

Some
fact,

is

being

by persons

and promoted by powerful

I

should be the last person

in

international affairs has

Nations very often,

view of disputed points more

from pride of opinion than from any

it.

war

It is held

often been very happily applied.

like

for

real interest in

of these disputes, again, turn on questions

which have not been solved because they have

not been properly investigated, but which are easily

disposed of

when thus looked

into

by

fresh

and

dis-

passionate minds.

But before
itself to

any other country commits

arbitration as a universal

one or two of

In the

this or

its

defects

first place,

remedy

for war,

ought to be specially noticed.

though arbitration in individual

p 2

212

LAW

INTERNATIONAL

disputes

is

known and

well

frequently tried,

unlike the arbitration proposed

The

international differences.
all

lawyers are familiar,

leot. xrr.

by

its

it is

very

advocates for

arbitration with

which

merely a displacement of

is

the structure of an ordinary court of justice.

The

parties agree to refer all or part of the matters in

dispute between

who

them

to the decision of an arbitrator,

takes the place of the judge or of the judge and

and they

a jury,

at the

law, shall be enforced

the

decree.

It

by the court

What

is

that

would be

to be adjudicated

numerous and complicated, and the

it

as

a very convenient course

is

questions of fact

tion to

his

unless impeachable on certain grounds of

decision,

own

same time agree that

it

is

wish to point out

apt
is

its

when

upon

are

principal objec-

to be very expensive.

that arbitration as in use

between individuals in England does not exclude the

one great feature of
underlies
trations

plated

its

court of justice, the force which

operations.

There

which come nearer the

by the enthusiasts

for

in

British

no doubt,

arbi-

arbitrations contem-

universal arbitrations

between disputant sovereigns.

business

are,

commercial

skilful

cities,

man

of

an eminent

specialist in the practical applications of science, will

sometimes obtain a sort of celebrity for just and wise

adjudication,
is

and nothing

like the process of a court

found necessary to secure obedience to his award.

It is,

however,

many

centuries since such authority

PROPOSALS TO ABATE

LECT. XII.

was attributed
matters

any man or

to

WAR

class in international

the current of opinion in our day runs dis-

tinctly against the assumption that

knowledge
political

218

is

necessary for

the

any exceptional

solution

of great

and international questions, and therefore

we

the arbitration of which

the long run, and

tried

if

hear so

much would

on a great

scale,

in

prove to

have the defects which would soon show themselves

which the State had

in a court of justice

failed to

invest with irresistible coercive power.

The want of

coercive

power

is,

important drawback which attends

improve International

Law by

from the internal economy of

legislation,

all

attempts to

contrivances imitated

states,

and by something

in fact, the one

by something Hke

like the administration

of law by organised tribunals.

Still,

nobody who

understands the subject, and has observed the course

of events, will deny a certain measure of success to
international arbitrations, and there

to wish

some

them an extended

sphere.

is

much

reason

But there

practical defects in them, as they stand,

are

which

may possibly
well known to

should be observed upon, because they

admit of being remedied.

It

is

English practismg lawyers that a certain class of

litigants

courts,

are,

so

so to

that

put

there

obtaining for them a

is

full

it,

unpopular in English

considerable

difficulty

measure of justice.

in

Among

these, to give instances, are insurance companies,

and

214
to

LAW

INTERNATIONAL

some extent railway companies.

lect. xii.

In the same way

there are states bringing their controversies before

bodies

of international

same sense unpopular

who

arbitrators

litigants

and,

are

the

inquiry were

if

practicable, I should not be surprised to find that, in

the opinion of English diplomatists and statesmen

our

own country

a popular litigant in arbitrations.

The truth

charge of our foreign

country

afi^airs,

money award

than any other community.

better

lieved to be comparatively careless

policy,

and not

to

it

show much

Lastly, there

judicial rebuff.

that

is

not

is,

our

thought to be very wealthy, and to be

is

able to bear the burden of a

it

has so contrived

to escape

from

sufferings

which

its

of

It
its

against
be-

is

foreign

sensitiveness under a
is

a general impression

international relations as

share of the anxieties and

its

fair

fall

upon other

states

through war^

apprehension of war, and preparation for war.

Again,

is

it

not, I think, to be denied that the

composition of courts
style

may

for the

them) of international arbitration

gether satisfactory.
is

(if I

An

moment
is

so

not alto-

indispensable element in

it

who are
word has much

one or more of the class of lawyers

commonly
changed

called jurists.

its

there

was

had

made

meaning.

As

But

this

lately as the last century

a class of lawyers bearing this title

and whose

special

who

study of International Law,

collective opinion

had

serious influence

on

WAR

TROPOSALS TO ABATE

LECT. XII.

development of the system.

tlie

215

But

England

in

the Ecclesiastical and Admiralty Courts have been

and

transformed,

the

in

Roman

those

courts

has

point

of disappearing.

trained

special

Civil

number

of

new

Law who

famous foreign writers

and

in

is

on the

quite

say at

or

Nobody can
is.
The word

senses

lawyers

practised

either disappeared

present what a jurist

of

class

is

used in a

in point of fact

on International

most

Law

are

salaried functionaries of foreign chanceries, nor can

any reader of very modern

fail

to see that

many

of

them

treatises

on the subject

are strongly affected

by

the official connection of the writer with his Govern-

ment, and by his knowledge of the interest which he

supposes that Government to have in the establish-

ment,

maintenance,

or

development of particular

features of the international system.

This last-men-

tioned drawback on the usefulness of international

quasi- courts of arbitration, that in our day they are

not always satisfactorily constituted,

is

closely con-

nected with one general defect which at

characterises

nuous

them

they do

not exercise any conti-

jurisdiction, they are always

single occasion.

It is quite uncertain

to be attached to the
tors as a precedent.

present

formed

what weight

award of international

The mode

for the
is

arbitra-

in which International

Law makes progress in default of a regular Legislature

is

a very important subject,

which

have not been

INTERNATIONAL LAW

216
able to take

up

lect. xii.

manner worthy of

in a

it

in the

present course of lectures, but which I hope to enter

upon

at

some future

There

time.

is,

however, no

doubt that a quasi-judicial award, given on a serious

occasion,

and acquiesced

were parties to the

affects the law.

ad

stituted

hoc,

m by powerful

litigation,

nations

who

deeply and permanently

But quasi-courts of

arbitrators, con-

of necessity attend simply to the

question in immediate dispute, and do not weigh the

opinion they give regarded as a precedent.

cannot look before and

the

Law

structure

to the entire history of

This result of their defective

of Nations.
is

after

They

particularly conspicuous and particularly

dangerous in what was perhaps the greatest of

arbitrations, that

had

arisen

which

settled

all

the difference which

between Great Britain and the United

States as to liability for the depredations of Southern

Confederate cruisers on Northern American shipping.

I

have nothing to say against the value of the Geneva

arbitration in regard to the particular occasion

which

it

was resorted

It

to.

on

put an end to a number

of bitterly disputed questions which had accumulated

during the

War

of Secession, and which might have

smouldered on for years, to the great danger of the

whole

civilised world.

the Geneva award in

is

much more

disputants

But the serviceableness of

its effects

questionable.

are found

on International

Even

Law

at the outset, the

arguing that the arbitrators

PROPOSALS TO ABATE WAPv

1CT. XII.

217

should have regard to principles which one of them

did not admit to be included in International Law.

Great Britain protests against

this

principle,

nevertheless allows the arbitration to proceed.

may, however, be quite sure that

dispute should

if

We

an analogous
principle

hereafter occur, this

but

will

be urged by any Power which has an interest in

insisting

upon

-it,

grave uncertainty

Law.

and under any circumstances a

introduced into

is

But the Geneva

ternational precedent,

during the Confederate

damages
neutral.

as

punishment

in-

open to much more serious

is

was condemned by the

an

decision, regarded as

As

objection than this.

International

is

well known, Great Britain

War was

a neutral, and she

arbitrators to

pay very heavy

for breaches of her

She was penally dealt with

duty as a

for a

number

of acts and omissions, each in itself innocent.

She

had a standard of due diligence applied

to her neglects

which was new and extremely

And

severe.

generally

she had a rule of neutral duty applied to her which,

if it

has been really engrafted on the

Law

of Nations,

has changed that law materially for the worse.

if

there be one thing

court

But

more than another which a true

of international justice might be desired to

keei3 in

view in

its

decisions,

on the rights of neutrals.

is

their future effect

Nothing tends

to enlarge

much as the neglect of

Nothing tends so much to make war

the area of maritime wars so

these rights.

it

218

INTERNATIONAL

intolerably

oppressive

beyond what

is

LAW

any

as

lect. xii.

which

rule

helps,

absolutely necessary, to invade the

principle that neutral states are merely states which

have kept out of a calamity which has

and which merely

in

their

From

Geneva

another direction.

in

not happy.

is

turns back pro tanto the drift of

many

legal

The Geneva

Great Britain and the United States.

as a precedent likely to exercise

the whole

Law

have dwelt on
because

tration

it

and

opinion on

arbitration,

it

moment on

But, looked at

serious influence

of Nations, I fear

as well as reactionary

It

years had been setting

conferred great benefit for the

repeat,

business

point of view, the

this

arbitration

neutral rights, which for

on others,

own

desire to follow their

own way.

result of the

fallen

on

was dangerous,

retrogressive.

this aspect of the

Geneva

puts in what appears to

arbi-

me

striking light the disadvantages which attend these

expedients for settling international disputes, through

their being invariably
hoc.

brought into action merely ad

true court of quasi-justice, like a court of

municipal justice, would be sure to consider the

effect of a

which
to

me

it

given decision on the whole branch of law

administers.

to be one for

The

which

it

defect,

however, appears

would not be altogether

impossible to find a remedy.

Many, indeed, of the

innovations which have been proposed for the cure of

palpable infirmities in the application of our Inter-

PROPOSALS TO ABATE WAU

LECT. XII.

219

national Jurisprudence to facts seem to have but small

chance of adoption, at any rate in a society of nations

like that in

which we

live,

through the magnitude of

the sacrifices which they would impose on particular

But no appreciable

communities.

sacrifice

would

have to be made by the single or corporate sovereigns

of the civilised world
stitute a single

they were to agree to con-

if

permanent court, or board, or assem-

blage of arbitrators, Avho should act as referees in any

questions which any

community or communities should

choose to submit to them.

free

Such a court would not be

from the infirmity which

afflicts all

to the international system.

at its

back.

stituted.

judice,

But

I think

It

would have no

would be

think

it

would be more

it

could be better trusted to adjust

and

body of international

rules.

court,

Such

from pre-

as freer, than

And
its

force

better con-

free

and would soon be recognised

the present occasional adjudicators.

entire

such additions

I think

it

awards to the

principles, distinctions,

a tribunal as I have described, a

board, or commission of arbitrators, having

a certain degree of permanence,

might have

advantages which I have described for

it

it

all

the

might be

better constituted for its purpose than are the bodies

which are now trusted

to

conduct arbitrations,

its

awards might be better considered with regard to

their eff*ect on the entirety of the Law of Nations, and
it

might be employed more

freely as

body of

220

LAW

INTERNATIONAL

referees

on

critical

themselves for

want of any authority

not be a true court of

Law, that

Its rules

have no sanction.

It can-

rules or the violation

its

It is true that a defiance

sovereigns or

down upon

states

it is in-

remain unmoved

by the disapprobation which an open breach of

ternational obligation provokes

disapprobation

telegraph and the press.

"^^

Nothing coul^

now
more

n which

satisfactory than the outburst of indign

advantage of the

in-

by the

rapidly diffused over the whole civilised world

occurred in 1870,

all

the assis-

of Nations sometimes draws

Few

^^ould

share the

the offender a very serious sanction, though

direct.

their

command

cannot

it

of an international duty.

Law

o-ill it

It woi\

j ustice.

not punish the breach of

of the

which

to

But

to

left

modern eyes the weakness, of

characteristic, in

tance of force.

now

questions which are

consideration might be committed.

International

lect. xii.

when the Russian Government took

difficulties

placed by the war between

which Europe was

in

Germany and

France, to

repudiate the restrictions under which Russia lay in

respect of naval action in the Black Sea through the

provisions of the Treaty of Paris, restrictions which,

it

must be

confessed, were not

The Russian Government had

and

to

wholly reasonable.

abandon

its

position

at a Conference of the representatives of

who had been

signataries of the Treaty rf Paris,

was declared that

'

it is

Powers
it

an essential princ' pie of the

Law

WAR

PROPOSALS TO ABATE

LECT. xii.

of Nations that

no Power can

221

liberate itself

from

the engagement of a treaty, nor modify the stipulations thereof, unless with the consent of the contract-

ing Power>j
is

,^

means of an amicable engagement.'

It

true that this assertion of the virtual perpetuity

of treaties (to which an exception must be introduced,

save
is

by the

effect

of war) contains a principle which

not without a danger of

which was

princi]3le is that

The

ference.

its

truth

is

But the received

own.
laid

down

Law is

at present seriously

weakened by the disapprobation he

this better

Con-

that an offender against the

obligations of International

knew

at the

Nobody

incurs.

than Napoleon Bonaparte, who, next

perhaps to Frederick the Great, was the most perfidious sovereign in

sistently

to

fasit..

modern

endeavoured
\

this

history,

through

his

when he
official

country the name of

'

per-

scribes

perfidious

Albion.'

But

denial to Liternational

which

have been allowed, the

after all qualifications

is

Law

commanded by

every municipal tribunal,

advantage.
firmity.

hindered.

of that auxiliary force

municipal law, and by

all
is

The system owes

Its efiiciency

And

and

its

most lamentable
to

it

every sort of in-

improvement

in the last resort,

dis-

when two

are

ahke

or

more

disputant Powers have wrought themselves to such a

heat of passion that they are determmed to fight, the
rest of the civilised world,

though persuaded that the

INTERNATIONAL

222
contest

LAW

lect. xii.

unnecessary and persuaded that

is

conta-

its

gion will spread, has, in the present state of international relations, no jDOwer of forbidding or punishino;

the armed attacks of one state on another.

The

great majority of those entitled to have an opinion

may condemn
officer of the

the threatened war, but there

Law

The amount

headlong combatants.
at the disposal of

what

nations collectively
tible,

and

but

it is

it is

is

no

of Nations to interfere with the

is

is

called the

of force which

is

commonwealth of

immense and practically

irresis-

badly distributed and not well directed,

too often impotent, not only for the promo-

tion of good, but for the prevention of acknowledged

evil.

About

six

months

ago,

when an Association which

has been formed for the codification of the

Nations (which I

may

ings, the subject attracted considerable,

attention.

of

describe parenthetically as a

most excellent undertaking) was holding

momentary,

Law

An

its

meet-

though only

eminent French econo-

mist, M. de Molinari, published a proposal for what

The majority

he called a League of Neutral Powers.

of civilised states are

always neutral, though the

neutrals are not always the same.

combine they

are irresistible, partly

If the neutrals

from their strength

and partly from their power to make one of two

belli o-erent Powers irresistible by joining its side.

M. de

Molinari' s suggestion

was that

it

should be one

PROPOSALS TO ABATE

LECT. XII.

WAR

of the duties of neutrality to thwart

make

belligerency, to

and

embody these

to

ments in the stipulations of a

deny that

Powers could be
tions

it

if

starting the proposal.

plain,

and were

effectual safeguard against

ample justification for

But the

objections to

at once advanced.

takes for granted that the

remain unimpaired.

new

impos-

It is

it

are

If carried into

might diminish the chances of war

effect, it

their

arrange-

under the suggested condi-

in itself an

is

treaty.

casu.s

such a combination of neutral

effected

would be a most

war, and this

of

spirit

a rule that the outbreak of

it

as regards the rest,

sible to

the

between any two Powers should be a

hostility
belli

223

but

mechanism of war

it

w^ill

If neutrals are to be equal to

duties, they

must maintain great armies

and navies on the modern

or they

scale,

may

not

be able to cope with the contemplated emergency.

Thus, though the risk of war might be lessened,

the burden of

war would

at best

remain the same

there

would be the same vast unproductive expendi-

ture,

the

One

result of the

other.

It is

strong

the

The
a

same ruinous displacement of industry.

fact

scheme might, in

not altogether true in

man armed

fact,

civil affairs

keeps his house

that he wears full

armour

an-

defeat

is

that

in peace.

sometimes

source of quarrelsomeness, and a temptation

to

attack his neighbours.

The scheme of M. de Molinari

failed to

command

INTERNATIONAL LAW

224

lect. xir.

the attention and interest which were essential to its

serious consideration, because

ambitious.
to me,

It

on a

arrested,

it

it

was too

was nevertheless founded,

correct principle, that, if

will be arrested

by

war

as
is

sacrifices

large and
it

appears

ever to be

on the part

of those states Avhich are neither at war nor desire

to

There

go to war.

this

is

a very ancient examjile of

method of arresting and preventing the spread of

Just before the dawn of Greek history, we

war.

have a glimpse of the existence of several combinations of

called

Greek

tribes

the

for

states)

(which

among themselves and

can scarcely be

purpose of preventing war

resisting attacks from

Of these amphiktiones,'

side.

as yet

'

out-

alliances of neighbour-

ing communities clustered round a temple as a sanctuary,

one only constituted on a respectable scale

survived to historical time, evidently in a state of

decay, and liable to
military Power, but

Now

let

to see

become the
still

tool of

any aggressive

even then greatly venerated.

us look around the world of our day, and try

whether we can find anywhere an example of

a successful amphiktiony, a combination of neighbour-

ing Powers formed for the purpose of preventing

wars.
I think

we have

seen for ten years or thereabouts

a curiously similar alliance of the sort, framed for a

similar purpose.

I refer to the alliance of the three

great sovereigns of Eastern Europe which

is

some-

PROPOSALS TO ABATE

LECT. XII.

times called

WAR

225

the

alliance of the tliree Emperors,

which, however, they themselves do not admit to be

in

form more than a personal understanding.

newspapers,

is

it

the same injustice, and for

the same reason, which as historical students

such great

territorial

we do

to

aggregates as the Medo-Persian

Empire under the Great King.

movement which we

the

tlie

not particularly popular in Western

Perhaps we do

Europe.

This

we may judge by

alliance or understanding, if

call

Political

freedom and

progress do not flourish

in these vast territorial sovereignties, perhaps through

some necessity of human nature

and thus we contrast

them unfavourably with the Athenian Republic, the

parent of art, science, and political liberty, or
those modern societies to which
belong.

There

understand the
gary, and there

with

else

we ourselves eminently

much constitutionalism, as we
word, in Germany and Austro- Hunis none at all in Russia, and thus we
is

not

are led to forget the services they render to

mankind

by the maintenance of peace and the prevention of

bloodshed.
I

suppose that, of the causes of war which we know

to exist in our day, there were never so

bined as in Eastern Europe during the

The

many

com-

last ten years.

antecedents of the three combined Emperors were

such as to threaten an outbreak of

moment.

Germany had waged

hostilities at

any

successful

war

against Austria, and also had inflicted bitter humilia-

226

INTEENATIONAL

tion on France,

till

lect. xii.

the other day the most powerful

Russia in 1877-8 had been

military state in Europe.

at

LAW

war with the Turkish Empire, which, though

in

the greatest decrepitude, exercised a nominal sove-

reignty over nearly

of Eastern Europe which was

all

not included in the dominions of the allied sovereigns.

Among the small communities which were broken fragments of

this

Empire, the modern springs of war were

The

in perpetual activity.
spirit of religious

called),

antagonism, the

were

menacing

all

it

has to be

Nevertheless, under these

loose.

conditions, the

the

of race com-

spirit

(whatever

or of nationality

bination

spirit of ambition,

'

amphiktiony of the three

'

We

Empires preserved the peace.

do not

know what
we

were the exact terms of the understanding, nor do

know when

quite

thing like

began.

There are signs of some-

having existed before the Treaty of

it

Berlin in 1878

many

it

difficulties

and though
(at

this

dangerous in Bulgaria),

it

has to contend with

moment with one most

it is still

said to exist.

We

cannot doubt what the main heads of the understanding must be.

The

three

Emperors must have agreed to

keep the peace among themselves, to

tations of external Powers,

resist the solici-

and to forget many of their

They must have aimed at keeping

the quarrelsome little communities about them to the
They
limits assigned to them by the Berlin Treaty.

own

recollections.

have not absolutely succeeded in

this

but, considering

PROPOSALS TO ABATE

LECT. xir.

WAR

227

the difficulties, the success of the alliance has been

conspicuous.

The precedent

one on which anyone

is

the hopes of the

forced to set the greatest store.

that a limited

who

shares

founder of this Professorship

number

of states,

It

has been shown

by isolatmg a

group of questions, and agreeing to do

ted

best (if necessary,

by

from kindling the

is

limi-

their

force) to prevent these questions

fire

of belligerency,

may

preserve

peace in a part of the world which seemed threatened

by imminent war.
but

it

It is

not a very large experiment,

has demanded sacrifices both of money and

sentiment.

It points to

method of abating war

which in our day is novel, but which,

after

having had

for about ten years the sanction of one precedent, is

now

in course of obtaining the sanction of another.

For the

alliance of the three

Emperors

is

about to be

succeeded by the combination of the Austro- Hungarian

and German Governments with the Government of

Italy.

If,

then, for periods of ten years together, one

community or more, eager

from engaging in

it,

for war,

can be prevented

one long step will have been

taken towards the establishment of that permanent

universal peace which has been hitherto a dream.

War
to be

is

much

too huge and too ancient an evil for there

probability that

or any isolated panacea.

it

will submit to

any one

would even say that there is

a strong presumption against any system of treatment

INTEENATIONAL

228

LAW

lect. xii.

which promises to put a prompt and complete end

to

it.

But, like those terrible conflagrations to which

it has often been compared,

guished by local isolation.

when apparently on
most inflammable

it

may

perhaps be extin-

In one instance

at least,

the point of bursting out in a

structure,

it

has hitherto been kept

under.

INDEX
ADMIRAL

ciianzy

Admiral

of England, 40
Agincourt, battle of, 9

Baltic, the. Powers, 113, 119

Bavard, Chevalier, on firearms^

Akhal T6k6, 144

139
Bayonet, use of the, 140
Berlin, Treaty of, 226
Bernard, Montague, 54
Bismarck, Prince, 69, 75
Blockade, what is, 107
paper,
109
running, 109, 114
diminished importance of, 116
Brehon law, 12
Bremen, sold to Hanover, 178
Brest, blockaded, 115
Brussels, Conference of, 24, 176
Convention of, 128

Alexander
142

II. of

Russia, 128, 135,

Alliances of States, 224

of three emperors, 226
Amalfi, siege of, 17
Amazon, the river, 85

Ambulance, hospitals, 156

American law, 24, 31, 38, 67
Ipwyers, 31, 36, 38, 74
South, 84
Supreme Court, 202
Amphiktiones, 224

Analysis of Law, 50
international,
Arbitration, 211
,

214

Duke of, 49
Armies, modern, 5
Argyll,

Armistice,

what

is,

proposals made at, 155^

167, 171, 176
Burmah, conquest of, 178, 193

Bynkershoek,
133; rules

14,

126

of,

185

Army

Acts, the, 180

Art, works of, in war, 196
exhibitions of, 3

Artillery,

modern,

6,

Caird, Sir
120

J.,

on food supplv,

Calais, capture of, 153

Calvo, M., on privateering, 104

war

Assassination, forbidden, 136

Canada, 70

Augustus, Emperor, 29
Austin, John, on imperfect rights,

Cape of Good Hope, 78

Australians, cruelty

115

199

Capita le, 12
;

50, 57

of,

Bacon-, Lord, on war, 132

Baltic, the, 77,

in,

Capitulation, what is, 188

Capture by land, 192 of

83

on law, 47, 48
on sovereignty, 49,

ables,

Cartel,

what

ship,

move-

195
is,

190

190

Catholic Church, 10, 14, 16, 72

Celsus, 209
Chanzy, General, 175

230

INTERNATIONAL

LAW

CHARLES

GROTIUS

Charles VI., 203

Chatellerault, 175
Christianity and war, 209
and law of nations, 34, 36, 207,

209
Coal, as contraband of war, 106
Cockburn, 0. J., 42, 43
Codes of law, 46, 48
Coleridge, Lord, 41, 43, 44
Colonies, trade with, in time of

war, 111
Columbia, British, 70

Columbus, 72
Commission on
87

fugitive

slaves,

Conference of Brussels, 24, 128,

171
of Geneva, 128, 156
of St. Petersburg, 135
Congress of Laybach, 62
of Troppau, 62
of Verona, 62
Conscription, maritime, 89
Consolato del Mare, 98
Constitution, Italian, 62
Spanish, 62
Contraband of war, what is, 105-7
unsettled, 113
new articles, 114
Cortez, 72
Corvee, 72

Crimean War,
close of,

4, 6, 99,

East-India Company, 205

Edward III., 20; taking Calais,
153
Elbe, the river, 84
Emperor, the, 17
Roman, 29
Empire, Chinese, 10
early, 10
effect on peace, 10, 225
European, 15
French, 61
Indian, 10, 18
modern, 225
Roman, 10, 15, 16
Russian, 225
Enemy, who is an, 152
Enemy ships, enemy goods, 99
Engineering, military, 64
Erasmus, 209
Eric fine, 12
Exchange of prisoners, 164
Executive power, 19
Exhibition of 1851, 3
Exterritoriality, general, 93
of ships, 86, 90, 94

Feeeaei, 15
Flags, hospital, 158; of truce, 189
Food supply of the U.K., 120
Fox, Mr., 137

Franconia, the, 39, 40, 79, 81

Franklin, Benjamin, 103, 208
Frederick the Great, 24
introduced the bayonet, 140
on spies, 150; as an invader,

115

100

Criminal Court, English, 44

Cross-bow, the, 139

177, 197

Daeien Company, 205

Froissart, the siege of Calais, 153

Declaration of Paris, 99, 189

of St. Petersburg, 136
of war, 131
Defoe's works, 124
Derby, Lord, on Brussels Conven-

Gambetta, Leon, 168

tion, 128, 171

Discovery of a country, ^^
Dominion, 55
Dominium, 56

Geneva, Convention of, 128, 142,

156
Arbitration of, 216
hospital, 158
Gray, Captain, 70
Grotius, de Jure Belli et Pacts,

eminens, 193
Dutch, Louis
23

the, 78, 82,

22,47

XIV. war
119

with,

on contraband of war, 106

on the horrors of war, 23, 126;

lawfulness

of,

210

INDEX
GROTIUS
method of,

MUSKETEERS
Lateran Council, 130, 185

22, 47, 125

referred to, 2, 13, 14, 51

Grotiiis,

on war,

6,

231

Law

of nations, 21, 27, 32, 33

of nature, 20,
of God, 35

23

reign

of,

22, 27, 30, 32,

49

Hall, Mr., on international law,

League of neutral powers, 222

60, 66, 77
privateering, 104 ; on Silesian loan, 204
Halleck, on international law,

Legislative power, 19, 52

Leibnitz, 13
Leoee en masse, 168, 170

on

142
Hastings, ordinance

Henry

of,

V., practice to

Lissa, battle

of,

146

Liturgy, Anglican, 10
Loans, foreign, 201

79
prison-

Idll

84

Silesian, 203

153
HoUand, 23

Louis, Saint, 15

Hospitals in war, 150, 157

Hovering Act, 80

Luther, 209

ers,

XIV., 23

Humanitarian progress, 142

Hunt, Leigh, 3

Magdeburg,
Imperfect law. 84
duty, 84

Impressment, practice

of,

89

India, 10, 44, 64

Indian law, 18
International arbitration, 211
law, earlv authorities, 1, 20,
26, 32, 47; 52
its constituent parts, 33
its origin, 1, 15, 16, 20, 26,
33, 47
its sanctions, 26, 51, 220

its

sources, 1, 13, 20, 26,

to, 179, 181

Invasion, rules as

Inventio, ^Q
Irish law, old, 12
Isabella of Oastille, 73

5
Jus fetiale, 13
gentium, 20, 26-28, 32, 34
Justinian, 17

Jei^'A, battle of,

Kext, Chancellor, 31,

Keyn, Reg. v., 39
King John, 79
King's Chambers, 80
Kings, early, 56

35,

202

siege of, 123

Mandalay, in Burmah, 178
Man-of-war, 87, 88
Manuals of war, 24, 129, 169
English, 130, 145 on the
wounded, 155; on invasion, 178
American, 181
Marcy, Mr., on privateering, 101
Mare clausum, 76, 78
libei'um, 76
Maritime law, 76
belligerency, 93; more humane,
127
Martial law, what is, 182
Mary Stuart, Queen, 56
Tudor, Queen, 79
Massacre at Magdeburg, 124
Meaux, capture of, 153
Mennonites, the, 208
Metaphors, legal use of, 86
Mexicans, cruelty of, 9
Indian, 72

34

Military organisation, 5
Mines, use of, 141, 144
Molinari, M., 222

Monarchy, 55
Monroe, President, 103
Mont Luc, Marshal, 140
Montereau, capture of, 163
More, Sir Thomas, 209
Musket, use of the, 139
Musketeers, killed, 139

232

INTERNATIONAL

LAW

NAPOLEON
Napoleon

ROMAN

5 his policy as to
liis seizure of
prisoners, 163
of works
private persons, 131
of art, 196
TIL, 4, 63
National debt, the Enghsh, 206
I.,

Naval belligerency, 94
Navigation laws, 65
of rivers, 83
Navy, British, 88
Prussian, 104
Neutral goods in enemy's ship, 96
powers, league of, 220
New kinds of contraband, 113
instruments of war, 143

OccuPATio, 69, 177

Occupation of territory, 70, 177,
179
Orange, William of, 137
Oregon territory, 69
Origen, 209

Prisoners, early, 8

exchange 164

153
made
160
mediaeval, 153, 164
Mexican, 9
modern, 161
North American, 8
not be made
private persons, 131
Roman, 9
surrendering, 155
of,

killed,

slaves,

to

spies,

149

Private property at sea, 105, 117

Privateering abolished by Declaration of Paris, 101
American views of, 101
dangers of, 121
Prize courts, function of, 96
Protected States, 58
Protestantism and war, 209
Provisions as contraband of war,

107, 119

Prussia in Silesian war, 203

Publicists, early, 2, 20, 21
Puffendorf, 13, 126

Palatinate, 23
Pandects, the, 17
Parana, the river, 84
Parole of prisoners, 165
Passport, what is, 190
Peace of 1815, 3, 61
expectations of, 3 a modern
invention, 8
primitive, 8

Roman, 14, 15, 29, 30

King

of,

of,

87

29

Philip II. of Spain, 79

Pillage, unauthorised,

Pirates, Greek,

'

prisoners, 164
Reprisals, what is, 174
Requisitions in war, 200
JRes ancipitis usus, 106, 113
Retaliation, 174

Pennsylvania, 74, 208

waters

Ram, the use of, as a weapon, 146

Ransom Bill,' 97
Ransoming captured sh'p, 97

Penn, W., 74
Persia,

QuAKEPvS, 74, 208

Quarter, threat to refuse, 23
for prisoners, 154, 160

199

Revolutions, French, 83

76

Poisoning of water and food

for-

bidden, 134

164
Pomeroy, Mr., 31, 35
Pope, the, 15, 78
Post-liminium, 177
Postliminy, 194
PrcBsidia, infra, meaning
Prisoners, Australian, 9
Poitiers, battle of,

Italian, 15
Rhine, the, 82, 84
Rifle brigade, uniform of, 140
Riparian sovereignty, 82
Rivers passing through several
States, 81

disputes as 84
empire, 10, 17, 27, 28, 29
international law, 13, 26, 28
law, 13, 16, 17, 18, 27, 46
to,

Roman

of,

95

INDEX

233

ROMAN

Roman law

as

WAR
enemy's pro-

to

perty, 95
basis of international law,

20,29
of nature, 28, 29

peace,
prisoners, 9

14, 15, 29,

30

Rouen, capture of, 153

Rousseau, on law of nature, 127
Rules, four,

of

Declaration

of

Paris, 100

Russia,

war with Turkey, 4

Tartar war, 144

Crimean war
see

Russian empire, 226

Sacramentum, 12
Safe-conduct, what
St.

Lawrence, the

is,

190
84

river,

St. Petersburg, declaration of,

135

Sanction, the term, 50 of international arbitration, 220

Scheldt, the, 82
;

Schnabele case, 190

Sea, the, 76
Seas, closed, 77, 78, 80
Selden, 13, 76

Semi-sovereign states, 58
Seven Years' War, 24, 178
Ships, public, 86, 88, 91

Tennyson, 3
Territorial waters, 39, 78, 81

claims, 74, 75

91

Jurisdiction Act, 38, 40

TertuUian, 208
Thring, Lord, author of* Manual
of War,' 130
Thucvdides, 133
Tilly," Count, 124
Torpedoes, use of, 141, 146
Toulon blockaded, 115
Tours, French Government at, 108

Treaty between U.S. and Prussia,

103
of Berlin, 226
of Breslau, 203
of Dresden, 203
of savages, 13
of Vienna, 4
of Westphalia, 82
Tribal law, 13
sovereignty, 56
Tribe, 56
Tribunal of international arbitration, 219
Truce, what is, 184
of God, 184
Turkey, waters of, 87
war with Russia, 4

private, 90
Siege, what is, 108
Silesian loan, 203

United

States, 24, 30, 36-38,

Uruguay, the

General, 144
Slavery, abolition of, increased
bloodshed, 134
of prisoner of war, 160
Slaves, fugitive, 86

river,

66

84

Skobeleflf,

South Sea Bubble, 205

Sovereignty, 48, 54, 193
Spain, 62, 72
Spanish America, 72, 73

effect on war, 114

Stephen, Mr. Justice, 45
Stowell, Lord, on contraband, 113
Stratagems, use of, in war, 148

Steam,

the,

Vattel, 2, 14, 24, 33

humanity 126
on treachery, 149
of,

Verden

Spies, use of, in war, 148, 150

State, 33, 54, 74

Taetaes, ferocity of
war with, 144

Vancouver, Captain, 70

124

War,

sold to Hanover, 178

American, 162

an 6

4
Crimean, 6

definition 131
Franco-Austrian, 4
Franco-German, 104, 168

15
art,

civil,

4,

evils of, 1

of,

4,

Italian,

234

INTERNATIONAL

LAW

WAR
War, manuals

of,

ZOUCH
Wellington, Duke
law, 127, 162

24

mitigation
171
of 1766, 112
of 1814, 89
of
162
of seventeenth century, 123
primitive, 8
proposals abate, 207, 225
remedies
11, 227
revival 4
Russo-Turkish., 4
Seven Years, 24, 178
of, 11,

on martial

on pillage, 199
Westphalia, Treaty of, 82
Wharton, Dr. F., 36, 67

secession,

Whewell,

Dr., his statute as to

professors, 1, 14, 52,

Professorship,

to

1, 3,

227
227

Wolf, 14
Wolseley, Lord, on spies, 151
Works of art, capture of, 198

for, 1,

of,

Wounded,

care of the, 9, 155-159

Warning of blockade, mode of, 108

Washington, Treaty of, 70
Capitol of, 198
Waters, territorial, 39, 75
Jurisdiction over, 75

Webr

of,

Yeae-Books, 51

ZoucH, 13

Geld, 12

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