INTERNATIONAL LAW

A SERIES OF

LECTURES DELIVERED BEFORE THE

UNIVERSITY OF CAMBRIDGE

1887

BY HENRY SUMNER MAINE, K.C.S.I.

LATE MASTER OF TRINITY HALL, CAMBRIDGE, AND

MEMBER OF THE INDIAN COUNCIL




THE WHEWELL LECTURES




SECOND EDITION




NEW IMPRESSION




LONDON




JOHN MURRAY, ALBENARLE STREET, W.




1915




NOTICE.




The following Lectures were delivered before the University of Cambridge,
in Michaelmas Term 1887, by the late Sir Henry S. Maine, then Professor of
International Law on the foundation of Dr. Whewell. They are printed from
the manuscript, partly written in his own hand, and throughout corrected
by him for delivery, but not prepared for publication. The sheets have been
passed through the press by Mr. Frederic Harrison and Mr. Frederick Pollock,
both of Lincoln's Inn, who were appointed two of Sir H. Maine's executors.
They have not thought it their duty in any way to alter the draft of the
Lectures, except so far as was needed to clear the sense of an occasional
passage, which in the copy as it stood was obscure or plainly defective.
Titles to the Lectures and an Index have also been added.




LINCOLN'S INN: September. 1888.






 INTERNATIONAL I.AW.




LECTURE I.




ITS ORIGIN AND SOURCES.




The eminent man who founded the Whewell Professorship of International
Law laid an earnest and express injunction on the occupant of this chair
that he should make it his aim, in all parts of his treatment of the subject,
to lay down such rules and suggest such measures as might tend to diminish
the evils of war and finally to extinguish war among nations.




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




Meantime I may be allowed to pause and say that at first sight it seems
hopeless to discharge in our day the responsibility which Dr. Whewell has
laid on his professor. What teacher of Law, public or Private, considering
what we see around us, can hope to suggest the means of controlling, and
still less of weakening and destroying, the prodigious forces which seem
now to make for war? The facts and the figures alike appear to point to an
enormous growth of these forces in volume and strength. The middle year of
this century was the thirty-fifth of the long peace which began in 1815 --
a peace which was not quite unbroken, for there were some intervals of petty
local war, but which was as long as any which existed since Modern Europe
began, and a peace which was fruitful in every sort of remarkable result.




That generation may be said to have had a dream of peace. It looked forward
to a time when, in the words of the great poet who was then beginning to
exercise influence over it, 'The war drum should beat no longer and the battle
flag should be furled.' And in 1851 an event occurred which has since then
been somewhat vulgarized by repetition, the establishment of the first of
the Exhibitions of Art and Industry. It seriously added to the belief that
wars had ceased; strife in arms was to be superseded by competition in the
peaceful arts, controversy was to be conducted by literary agencies and no
longer by arms. As a poet and prose-writer then still living put it, 'Captain
Pen had vanquished Captain Sword.'




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




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




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




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




Take one example, the practices concerned with the treatment of the wounded
and of prisoners. At first there are signs which cannot be mistaken that
the prisoner and the wounded man are not only killed but tortured before
being put to death. The still savage races from whom most has been learned
as to the original usages and conditions of men are the North American Indians
and the aborigines of Australia. That the North American Indians tortured
their prisoners before putting them to death is one of a number of facts
very familiar to us which have made their way into literature. One branch
of this race, the Mexicans, attained to a certain degree of civilization,
but it is also matter of familiar knowledge that the Mexicans put their prisoners
to death with the greatest cruelty almost in hecatombs, and that the practice
with them had acquired a religious sanction. As to the Australians, it has
been observed that they have inherited the animal instinct which leads them
even to torture their game after it is captured and before it is killed.
The English school-boy has often been shocked by the concluding passage in
a Roman triumph when the gallant enemy, who had been led in the procession,
was not only killed but flogged. When we come to medieval war these cruelties
have disappeared, and, though the suffering of the wounded and of prisoners
was great, it seems to have been due rather to ignorance and carelessness
than to cruelty. It is said that at the battle of Agincourt only one man
who had any knowledge of medicine or surgery was present, the functionary
who was the predecessor of the official now known as the King's Staff Surgeon.




The only influences which at the beginning of history seem to put an end
to war on a large scale are influences which have been much maligned and
to which some injustice has been done. The conventionally revised history
of the world begins with the formation of certain great empires, the Egyptian,
the Assyrian, the Median, and the Persian. No doubt they were a result rather
of man's rapacity than of his humanity. The object of their founders was
to gratify ambitious display on a great scale and to increase the area from
which they could take their taxes; but nevertheless no one could say how
much war they extinguished by the Prohibition, which they undoubtedly carried
out, of hostilities among the various sub-divisions of their subjects. The
latest of these Empires which conferred similar benefits on mankind in the
West was the Roman Empire. During the long Roman peace not only did bloodshed
practically cease, but the equality of the sexes, the mitigation of slavery,
and the organization of Christianity made their appearance in the world.




When, however, one of these empires breaks up, the old suffering revives.
'Give peace in our time, O Lord,' is a versicle in the Anglican Liturgy which
is said to date from the rupture of the Empire, that is from the time when
the Empire was breaking up into kingdoms occupied by barbarian races. It
is obviously a prayer for an unusual and unhoped-for blessing. In the East
the amount of bloodshed prevented by the Chinese Empire is incalculable.
Independently of any other benefits, which the Indian Empire may confer on
the collection of countries which it includes, there is no question that
were it to be dissolved, or to fall into the hands of masters unable to govern
it, the territories which make it up would be deluged with blood from end
to end. As the history of modern Europe proceeds there are moments when old
controversies seem to have been exhausted and fighting is to a certain extent
relaxed, but then some great difference arises between men -- the wars of
religion, for example, commence -- and Europe is again full of bloodshed.




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




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




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




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




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




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




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




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




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




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




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




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







LECTURE II.




ITS AUTHORITY AND SANCTION.




In the latter portion of the last lecture I endeavoured to establish three
propositions, which I hold to be extremely important to the intelligent study
of International Law. The first of them was that the process by which International
Law obtained authority in a great part of Europe was a late st age of the
process by which the Roman Law had also obtained authority over very much
the saline part of the world. Next, I said that this process had little or
no analogy to what is now understood by legislation, but consisted in the
reception of a body of doctrine in a mass by specially constituted or trained
minds. Lastly, I contended that this doctrine, so spread over Europe, consisted
mainly of that part of the Roman Law which the Romans themselves had called
Jus Gentium or Jus Naturae -- Law of Nations, or Law of Nature; terms which
had become practicably convertible.




The inquiry into the exact meaning of the phrase 'Law of Nature' belongs
to a different department of juridical study, and I think it will be sufficient
if I briefly summarise the views, themselves considerably condensed, which
I published some years ago in a volume from which I quoted in the last lecture.
Jus Gentium, or Law of Nations, had not, so I thought, much colour at first
of the meaning which it afterwards acquired. It 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 foreigner, were concerned. In order to obtain some principles upon which
the questions to be adjudicated on could be settled, the Roman praetor peregrinus
resorted to the expedient of selecting the rules of law common to Rome and
to the different Italian communities in which the immigrants were born. In
other words, he set himself to form a system answering to the primitive and
literal meaning of Jus Gentium, that is law common to all nations. Jus Gentium
was in fact the sum of the common ingredients in the customs of the old Italian
tribes. It was accordingly a collection of rules and principles determined
by observation to be common to the institutions which prevailed among the
various Italian races. Now, it is to be remembered that every Roman of position
who followed public life was in the course of his official career not only,
so far as his powers went, a statesman, but specially a general and a judge.
Speculation upon legal principles manifestly became common among the Roman
aristocracy, and in course of time the question suggested itself what was
the essential nature of this Jus Gentium which had at first very possibly
been regarded as a mere market law. The answer was shaped by the Greek philosophy,
which was a favourite subject of study among the class to which the Roman
lawyers belonged. Seen in the light of Stoical doctrine the Law of Nations
came to be identified with the Law of Nature; that is to say, with a number
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. A passage in the Roman Institutes shows that
the expressions were practically convertible. The greatest function of the
Law of Nature 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 matter probably one correction
has to be made. Some 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 Gentium in a wider and something like its modern
sense; that is, law binding on tribes and nations as such. Granting that
this is so, still the impression that the Roman Law 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 rules
of what the Romans called Natural Law to be engrafted on, and identified
with, the modern law of nations. When the older Roman sense of the words
died out cannot be confidently ascertained, though of course in a world which
was divided between two great rival sovereigns, the Roman Emperor and the
King of Persia, there was little room for Law of Nations in the true sense
of the words.




When, however, at what period, did this Jus Gentium or Jus Natural rise
into the dignity which the Roman lawyers give to it? There is a strong probability
that this exaltation was not very ancient, but that it took place during
the period, roughly about three hundred years, covered by the so-called Roman
Peace. That Peace extended from the time at which the Roman Empire was settled
by the success of Augustus over all his enemies to the early years of the
third century. The Roman Law transformed a large number of the ideas of a
great portion of the world; but its own transformation from a technical to
a plastic system was one of the results of the so-called Roman Peace. If
we want to know what war is, we should study what peace is, and see what
the human mind is when it is unaffected by war. We should study the Korean
Peace, during which the existing legal conception of the relation of the
sexes framed itself; during which the Christian Church was organised, and
during which the old Law of Nations or Nature transformed itself into an
ideal system specially distinguished by simplicity and symmetry, and became
a standard for the legal institutions of all systems of jurisprudence.




The second proposition for which I argued is one of very considerable
importance. It was that the Law of Nations, as framed by the jurists who
were its authors, spread over the world not by legislation, but by a process
of earlier date. On the appreciation of this position depends not only the
view taken of the Law of Nature and of the application of International Law,
but also certain practical consequences which nay be momentous; and at a
quite recent date our country was in danger of adopting an opinion which
would have separated it from the rest of the civilised world, and from which
it could only be saved by correct ideas on this very point.




In order that you may convince yourselves what might be the consequences
of demanding a legislative sanction, or a sanction derived from an authority
on a level with that of a modern legislature, for the rules of International
Law, I recommend you to compare the view of it taken by the statesmen and
jurists of the United States of America with that to which this country might
have committed itself; and from which it was delivered by the direct intervention
of Parliament. The United States are particularly worth examining in regard
to the point before us, because they were an instance of a new nation deliberately
setting itself to consider splat new obligations it had incurred by determining
to take rank as a state. Italy is another and a later example, and there
have been some others in South America, but all these societies, made up
from smaller pre-existing territorial materials, were greatly influenced
by the example of the American Federal Union. The doctrines which the United
States adopted may be 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 American writers on
International Law are less instructive on the points which I am going to
place before you than these books, because they usually follow the order
of topics taken up by older European writers. But I will quote a passage
from one of the most careful and sober of writers, Chancellor Kent, and also
from a writer who unhappily died the other day, and whose productions were
much valued in the United States -- Mr. Pomeroy. You will have to recollect
that the question at issue between the English and Americans lawyers was
less what is the nature of International Law, and how it arose, than the
question how, and to what extent, have its rules become binding on independent
states. These questions are often confounded together, or found to be indissoluble,
as will be plain from the extracts which I am about to read.




There has been a difference of opinion among, writers concerning the foundation
of the Law of Nations. It has been considered by some as a mere system of
positive institutions, founded upon consent and usage; While others have
insisted that it was essentially the same as the Law of Nature, applied to
the conduct of nations, in the character of moral persons, susceptible of
obligations and laws. We are not to adopt either of these theories as exclusively
true. The most useful and practical part of the Law of Nations is, no doubt,
instituted or positive law, founded on usage, consent, and agreement. But
it would be improper to separate this law entirely from natural jurisprudence,
and not to consider it as deriving much of its force and dignity from the
same principles of right reason, the same views of the nature and constitution
of man, and the same sanction of Divine revelation, as those from which the
science of morality is deduced. There is a natural and a positive Law of
Nations. By the former, every state, in its relations with other states,
is bound to conduct itself with justice, good faith, and benevolence; and
this application of the Law of Nature has been called by Vattel the necessary
Law of Nations, because nations are bound by the Law of Nature to observe
it; and it is termed by others the internal Law of Nations, because it is
obligatory upon them in point of conscience. We ought not, therefore, to
separate the science of public law from that of ethics, nor encourage the
dangerous suggestion that governments are not so strictly bound by the obligations
of truth, justice, and humanity, in relation to other powers, as they are
in the management of their own local concerns.




States, or bodies politic, are to be considered as moral persons, having
a public will, capable and free to do right and wrong, inasmuch as they are
collections of individuals, each of whom carries with him into the service
of the community the same binding law of morality and religion which ought
to control his conduct in private life. The Law of Nations is a 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, and to the relations and conduct of nations; of a collection
of usages, customs, and opinions, the growth of civilization and commerce;
and of a code of positive law.




In the absence of these latter regulations, the intercourse and conduct
of nations are to be governed her principles fairly to deduced from the rights
and duties of nations, and the nature of moral obligation; and we have the
authority of the lawyers of antiquity, and of some of the first masters in
the modern school of public law, for placing the moral obligation of nations
and of individuals on similar grounds, and for considering individual and
national morality as parts of one and the same science. The Law of Nations,
so far as it is founded on the principles of Natural Law, is equally binding
in every age and upon all mankind. But the Christian nations of Europe, and
their descendants on this side of the Atlantic, by the vast superiority of
their attainments in arts, and science, and commerce, as well as in policy
and government; and. above all, by the brighter light, the more certain truths,
and the more definite sanction which Christianity has communicated to the
ethical jurisprudence of the ancients, have established a Law of Nations
peculiar to themselves. They form together a community of nations united
by religion, manners, morals, humanity, and science, and united also by the
mutual advantages of commercial intercourse, by the habit of forming alliances
and treaties with each other, of interchanging ambassadors, and of studying
and recognising the same writers and systems of public law.




This Jus Gentium of the Imperial jurisconsults is identical with the Law
of Nature, or Natural Law, of many modern ethical and juridical writers;
and both are, in fact, the law of God, made known somewhat dimly to the whole
human race at all times, and set forth with unmistakable certainty and transcendent
power in His revealed will. This is, in truth, the highest law by which moral
beings can be governed; highest in its Lawgiver, who is omnipotent over each
individual man, as well as over societies and states; highest in the absolute
perfection of the rules which it contains; highest in the absolute cogency
of the commands which it utters; highest in the absolute obligation of the
duties which it enforces; highest in the absolute certainty and irresistible
coercive power of the sanctions which it wields, and which operate upon the
deepest spiritual nature of every human being.




It must be clear to you, I think, that writers who adhere to these opinions
are not likely to trouble themselves greatly with the question of the original
obligatory force of International Law. If the Law of Nations be binding on
states considered as moral beings on account of its derivation from the Law
of Nature or of God, states when in a healthy moral condition will defer
to them as individual men do to the morality of the Ten Commandments. The
whole question in fact, as laid down by liens, and with less moderation by
Pomeroy, is a question of ethics, and all demand of a legislative sanction
may be discarded. But now let us turn to the four volumes of the American
International Digest edited by Dr. Francis Wharton. It is entitled, 'A Digest
of the International Law of the United States,' and it consists of documents
relating to that subject issued by Presidents and Secretaries of State, of
the decisions of Federal Courts, and of the opinions of Attorneys-General.
Among the propositions laid down in these volumes you will find the following,
all of them accepted by the American Federal Government.




'The law of the United States ought not, if it be avoidable, so to be
construed as to infringe on the common principles and usages of nations and
the general doctrines of International Law. Even as to municipal matters
the law should be so construed as to conform to the Law of Nations, unless
the contrary be expressly prescribed. An Act of the Federal Congress ought
never to be construed so as to violate the Law of Nations if any other possible
construction remains, nor should it be construed to violate neutral rights
or to affect neutral commerce, further than is warranted by the Law of Nations
as understood in this country.' Again: 'The Law of Nations is part of the
Municipal Law of separate states. The intercourse of the United States with
foreign nations and the policy in regard to them being placed by the Constitution
in the hands of the Federal Government, its decisions upon these subjects
are by universally acknowledged principles of International Law obligatory
on everybody. The Law of Nations, unlike foreign Municipal Law, does not
have to be proved as a fact. The Law of Nations makes en integral part of
the laws of the land. Every nation, on being received at her own 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 civilised
states, and which have 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 the practice of civilised nations.'




Here you see that according to American doctrine International Law has
precedence both of Federal and of Municipal Law, unless in the exceptional
case where Federal Law has deliberately departed from it. It is regarded
by the American lawyers as having very much the same relation to Federal
and State Law as the Federal Constitution has, and this no doubt is the reason
why in so many famous American law books Constitutional Law and International
Law are the first subjects discussed, International Law on the whole having
precedence of Constitutional Law.




The principle on which these American doctrines of International Law repose
is, I think, tolerably plain. The statesmen and jurists of the United States
do not regard International Law as having become binding on their country
through the intervention of any legislature. They do not believe it to be
of the nature of immemorial usage, 'of which the memory of man runneth not
to the contrary.' They look upon its rules as a main part of the conditions
on which a 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 by the founders of International Law, and it is practically
that submitted to, and assumed to be a sufficiently solid basis for further
inferences, by Governments and lawyers of the civilised sovereign communities
of our day. If they put it in another way it would probably be that the 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 it involves. This
was our own country, Great Britain. In one celebrated case, only the other
day, the English judges, though by a majority of one only, forged their decision
on a very different principle, and a special Act of Parliament was required
to re-establish the authority of International Law on the footing on which
the rest of the world had placed it. The case was one of great importance
and interest, and it was argued before all the English judges in the Court
of Criminal Appeal. It is known as the Queen v. Keyn, but is more popularly
called the 'Franconia' Case (2 Ex. Div. 63). The 'Franconia,' a German ship,
was commanded by a German subject, Keyn. On a voyage from Hamburg to the
West Indies, when within two and a half miles from the beach at Dover, and
less than two miles from the head of the Admiralty pier, the 'Franconia,'
through the negligence, as the jury found, of Keyn, ran into the British
ship 'Strathclyde,' sank her, and caused the death of one of her passengers.
Keyn was tried for manslaughter, and was convicted at the Central Criminal
Court; but the question then arose whether he had committed an offence within
the jurisdiction of English tribunals.




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 is considered
for some purposes to belong to the country the coasts of which it washes.
There is some difference of opinion between them as to the exact point to
which this territorial water, which is considered as part of a country's
soil, extends. This doctrine, however, if it were sound, must at some time
or other have been borrowed by the English courts and lawyers from international
authority. Previous to the appearance of International Law, the law followed
in England was different. The great 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, at some time or other,
have taken place in the law, and the point arose as to whether any such change
could be presumed, and by what agency it could have been effected. The judges
were very nearly equally divided on the point, which is a fundamental one
affecting the whole view to be taken of the authority of International Law
in this country. In the end it 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 England and another for the rest of the civilised
world was palpably so great that Parliament finally stepped in, and in the
year 1878 passed what is called the 'Territorial Waters Act,' by which the
jurisdiction of the English Courts which had succeeded to the jurisdiction
of the Admiral of England was declared 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 Coleridge. who was with the minority of the judges, used the following
language:




'My brothers Brett and Lindley have shown that by a consensus of writers,
without one single authority to the contrary, some portion of the coast waters
of a country is considered for some purposes to belong to the country the
coasts of which they wash. I concur in thinking that the discrepancies to
be found in these writers as to the precise extent of the coast waters which
belong to a country discrepancies, after all, 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
to the respective countries on grounds of sense if 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
recognised over the coast Raters which adjoin these countries. This is established
as solidly as by the very nature of the case any proposition of International
Law can be. Strictly speaking, "International Law " is an inexact
expression, and it is apt to mislead if its inexactness is not kept in mind.
Law implies a lawgiver, and a tribunal capable of enforcing it and coercing
its transgressors. But there is no common lawgiver to sovereign states; and
no tribunal has the power to bind them by decrees or coerce them if they
transgress. The Law of Nations is that collection of usages which civilised
states have agreed to observe in their dealings with one another. What 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. Neither, certainly, does a consensus of jurists; but it is evidence
of the agreement of nations on international points; and on such points,
when they arise, the English Courts give effect, as part of 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
difference between them, goes on to remark: 'Can a 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
assertions of writers on public law -- or even by the assent of other nations?
And when in support of this position, or of the theory of the three-mile
zone in general, the statements of the writers on International Law are relied
on, the question may well be asked, upon what authority are these statements
founded? When and in what manner have the nations, who are to be affected
by such a 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).




It would appear, therefore, from the authorities which I have cited that
in the two great English-speaking people of the world, one descended from
the other, there prevail two, and possibly three, opinions as to the obligatory
force of International Law on individual states. The lawyers and statesmen
of the United States of America regard the acknowledgment of and submission
to the international system as duties which devolve on every independent
sovereignty through the fact of its being admitted into the circle of civilized
Governments. Among the English judges, Lord Coleridge considers that the
assent of a nation is necessary to subject it to International Law, but that
in the case of Great Britain and all the other civilised European Powers
this assent has been given either by express action or declaration, or at
all events by non-dissent. Lastly, Lord Chief Justice Cockburn, while accepting
the view that International Law became binding on states by their assent
to it, manifestly thought that this assent must somehow be conveyed by the
acquiescing state in its sovereign character, through some public action
which its Constitution recognizes as legally qualified to adopt a new law
or a new legal doctrine; that is, in Great Britain by Act of Parliament or
by the formal declaration of a Court of Justice. The two opinions which I
first mentioned, that over and over again propounded in the American Digest
and that of Lord Coleridge, though the language used is somewhat inexact
and in one case too metaphorical, seem to me to express the doctrine of the
whole civilised world outside Great Britain, and to conform to the historical
explanation which I will presently place before you. On the other hand, the
opinion of Lord Chief Justice Cockburn, which is one to which English judges,
always busily occupied in interpreting and applying the laws of this country,
are naturally liable, would have caused the greatest inconvenience if it
had been declared to be part of the law of England. It practically is that
the international rules could only have been imported into our system by
one of the modern processes by which our institutions are changed. In that
case each separate alleged rule of International Law would have had to be
shown to have been engrafted on our legal system by the legislation of Parliament,
by the alternative legislation, within certain limits, of the English Courts,
or by the conformity of the rule with some provable usage. For a simple rule
a most complicated rule would have been substituted.




The point immediately before the English Court of Criminal Appeal can
never arise again since the passing of the Territorial Waters Act; but it
is conceivable, if not likely, that we have not heard the last of the more
general question of principle. I may say that it seems to me that the solution
of the difficulty can only be supplied by the historical method. As I have
asserted many times, these systems of law have not always been extended over
the countries in which they are found prevailing by what we call legislation.
In more ancient times, and to a great extent even at this day, in that Eastern
portion of the world in which so much of the usages of earlier mankind still
survive, systems of religion and systems of morals, generally drawing with
them some system of laws, gain currency by their own moral influence; certain
minds being naturally predisposed to recede them acquiesce in them even with
enthusiasm. Mr. Justice Stephen, in the controversial work which he calls
'Liberty, Equality, and Fraternity,' has an eloquent passage on the subject.
'The sources of religion lie hid from us. All that we know is, that now and
again in the course of ages some one sets to music the tune which is haunting
millions of ears. It is caught up here and there, and repeated till the chorus
is thundered out by a body of singers able to drown all discords and to force
the vast unmusical mass to listen 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 direction all the laws and customs of those whom they
affect.' What is here said of religion, is true to a certain extent of morality.
In the East a body of new moral ideas is sure in time to produce a string
of legal rules; and it is said by those who know India and its natives well
that the production of what for want of a better name we must call a Code
is a 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 new laws from a regularly
constituted Legislature, the enthusiasm for new moral doctrines is ever growing
feebler and the demand for legal rules accommodated to them is becoming less.
Now, International Law was a Code in the same sense in which many Eastern
collections of rules were Codes. It was founded on a new morality, that which
had been discovered in the supposed Law of Nature, and in some minds it excited
unbounded enthusiasm.




The same process had previously been followed in Europe as regards Roman
Civil Law. We may not quite understand the admiration which the technical
part of the Roman Law inspired, but of the fact there is no doubt. This process
by which laws extended themselves had not quite died out when the international
jurists appeared, and in point of fact their system of rules was received
by the world very much as a system of law founded on morals is received to
this day in the East. No doubt it fell on soil prepared for it. The literate
classes, the scholars, great parts of the clergy, and the sovereigns and
statesmen of Europe accepted it, and the result was an instant decay of the
worst atrocities of war. Indeed, it is only necessary to look at the earliest
authorities on International Law, in the 'De Jure Belli et Pacis' of Grotius
for example, to see that the Law of Nations is essentially a moral and, to
some extent a religious, system. The appeal of Grotius is almost as frequent
to morals and religion as to precedent, and no doubt it is these portions
of the book, which to us have become almost commonplace or which seem irrelevant,
which gained for it much of the authority which it ultimately obtained.




The bulk of these lectures will consist of an account, as summary as I
can make it, of such portions of the International system as appear to me
to be reasonably settled; but before I proceed to this portion of my course,
I think I ought to say something on some modern criticisms of the basis of
International Law which have made their appearance quite recently, and which
I think have a tendency to multiply. The criticisms to which I refer appear
to me to be a singular proof of the great authority which in our day has
been obtained by the treatise of John Austin on the Province of Jurisprudence.
They are in fact to a considerable extent a re-statement of his positions.
The scope of Austin's undertaking in this classical work is often nowadays
exaggerated. He attempted, by analysis of the various conceptions which law
in its various senses includes, to select one sense of law in which legal
generalizations were possible. His ultimate object appears to have been 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 make up law as so understood. As probably
many of you know, his fundamental assertion is that in every country there
is some portion of the community which can force the rest to do exactly what
it pleases. This is called by him the 'Sovereign,' a word on which it is
necessary as soon as possible to observe that it is here taken in a different
sense from that in which it is employed by the classical writers on International
Law. From Austin's point of view International Law resembled morality more
than law; it was chiefly enforced by disapprobation of acts committed in
violation of it; it could not be resolved into the command of any sovereign.




In my next lecture, I shall contrast this word 'Sovereignty' as used by
Austin and the so-called school of analytical jurists with its use in International
Law, and specially consider the rights over land and water which are asserted
by international lawyers to arise logically from the conception of Sovereignty.




In my first lecture I spoke of the criticisms on International Law conducted
by John Austin in his 'Province of Jurisprudence Determined' as very interesting
and quite innocuous; but the results are sometimes so stated as if they showed
that Austin had intended 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 as another, if
it be only consistently used. In philosophy the commonest sense of law is
that in which it is used by such writers as the author of the book called
'The Reign of Law.' No term can be more dignified or more valuable than 'law'
as thus employed. What we have to do, is to keep this meaning of law separate
in our minds from law in other senses. It is very convenient, when the main
subject of thought is positive law, that we should remember that International
Law has but slender connection with it, and that it has less analogy to the
laws which are the commands of sovereigns than to rules of conduct, which,
whatever be their origin, are to a very great extent enforced by the disapprobation
which attends their neglect. What is most important to recollect are the
points of collection which do exist between International Law and positive
law.




Here one cannot but remark that a serious mistake as to human nature is
becoming common in our day. Austin resolved law into the command of a sovereign
addressed to a subject, and always enforced by a sanction or penalty which
created an imperative duty. The most important ingredient brought out by
this analysis is the sanction. Austin has shown, though not without some
straining of language, that the sanction is found everywhere in positive
law, civil and criminal. This is, in fact, the great feat which he performed,
but some of his disciples seem to me to draw the inference from his language
that men always obey rules from fear of punishment. As a matter of fact this
is quite untrue, for the largest number of rules which men obey are obeyed
unconsciously from a mere habit of mind. Men do sometimes obey rules for
fear of the punishment which will be indicted if they are violated, but,
compared with the mass of men in each community, this class is but small
-- probably, it is substantially confined to what are called the criminal
classes -- and for one man who refrains from stealing or murdering because
he fears the penalty there must be hundreds or thousands who refrain without
a thought on the subject. A vast variety of causes may have produced this
habit of mind. Early teaching certainly has a great deal to do with it; religious
opinion has a great deal to do with it; and it is very possible, and indeed
probable, that in a vast number of cases it is an inherited sentiment springing
from the enforcement of law by states, and the organs of states, during long
ages. Unfortunately it has been shown in our day that the mental habit, so
far as regards positive civil and criminal law, may be easily destroyed by
connivance at violations of rule; and this is some evidence of its having
a long descent from penal law once sternly enforced.




What we have to notice is, that the founders of International Law, though
they did not create a sanction, created a law-abiding sentiment. They 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
of states. They did this, not by threatening punishments, but by the alternative
and older method, long known in Europe and Asia, of creating a strong approval
of a certain body of rules. It is quite true that some of the reasons given
by Grotius for International Law would not now commend themselves if they
were presented to the mind for the first time; but it does not do to look
too far back into the origins of law for the reasons of its establishment.
Much of the beginnings of English Law is to be found in the Year Books; but
it would not be too harsh to say that some of the reasons given for rules
now received, which are to be found in the Year Books, are mixed with a great
deal of sheer nonsense. The original reasons for the International rules
are possibly to some extent nonsense: they often seem to us commonplace,
they are often rhetorical, they are often entangled with obsolete theories
of morals or deductions from irrelevant precedents, and on the other hand
they often assume a power of discerning what the Divine pleasure is on a
particular subject which the ideas of the present day would not admit. As
to their expediency, that has to be decided by experience, and experience
has, on the whole, pronounced decisively in their favour.




There are, however, at the same time some real defects in International
Law which are traceable to the difference between that law and positive law,
and the absence of mechanism by which positive law is developed. International
Law was not declared by a Legislature, and it still suffers from want of
a regular Legislature to improve and to develop it. It is still developed
by the antiquated method of writer commenting on writer, no security being
nowadays taken for the competence or authority of the writer except vague
opinion. There are really writers who through confusedness, 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 the absence of any method of authoritatively declaring
its tenor on some of its branches, and above all from the absence of any
method of enforcing its rules short of war or fear of war. All these are
real and often formidable drawbacks on the usefulness of International Law,and
no teacher of International Law can neglect them. Before the end of this
course, though not quite immediately, I propose to examine them, and to consider
whether the grooving experience of civilised mankind points to any new remedies
or better means of enforcing old ones.




LECTURE III.




STATE SOVEREIGNTY,




I now propose to occupy you with a group of questions arising out of a
subject of much interest and magnitude -- the Sovereignty of states over
land and water. I will first quote a definition of Sovereignty which would
fairly, I think, satisfy the jurists of the present day. It is taken from
an excellent book by the late Mr. Montague Bernard, of which the title is,
'The Neutrality of Great Britain during the American Civil War.' The definition
is primarily a definition of a Sovereign State. 'By a Sovereign State,' says
Mr. Bernard, 'we mean a Community or number of persons permanently organised
under a Sovereign Government of their own, and by a Sovereign Government
we mean a Government, however constituted, which exercises the power of making
and enforcing law within a Community, and is not itself subject to any superior
Government. These two factors, the one positive, the other negative, the
exercise of power and the absence of superior control, compose the notion
of Sovereignty and are essential to it.'




It is necessary to observe that the conception of Sovereignty went through
several changes before it became capable of this description. The view of
Sovereignty taken by the earliest international jurists in the sixteenth
and seventeenth centuries appears tome to be taken from Roman Law. It is
at bottom dominium dominion, ownership. We should not be far wrong in saying
that these writers regard the civilised world as a space of soil divided
between a number of Roman proprietors; much of their language is taken directly
from Roman Law; and, as usual, it is taken particularly from those rules
of the Roman system which the Romans themselves believed to be identical
with the rules of the Law of Nature. Many fundamental principles are explained
by this view. Thus all States, in International Law, are regarded as equal.
As a writer of the last century said, Russia is regarded as is Geneva; and
in the same way so would a set of Roman owners be regarded as equal before
the law. Again, International Law pays regard to Sovereigns only, it does
not regard any other part of the community any more than a Roman tribunal
would regard the slaves and freedmen of a Roman estate. I think too that
these jurists, on the whole, regard the Sovereign as an individual man. It
is true that so many of them belonged to the few republics then existing,
and specially to the United Provinces of the Netherlands, that they were
of course aware of the necessity of occasionally contemplating the Sovereign
as a corporation; but on the whole the view which is at the basis of their
conception is that the Sovereign is an individual; and sovereigns are regarded
by these lawyers as absolute and not merely paramount owners of the states
which they govern. They do not fool; below the existing Prince or Ruler,
who had been originally a man exercising despotic power. Further, Sovereignty
is at this date always associated with a definite portion of the earth's
surface.




But Sovereignty, or what corresponded in ancient time most nearly to it,
was not primitively associated with all these ideas; they took the place
of other ideas of older date. Thus Sovereignty was not always territorial;
it was not always associated with a definite portion of the earth's surface.
I have pointed out, in the work from which I have several times quoted, that
the older ideas are reflected in the titles of the earliest Monarchs in Western
Europe. These were Rex Anglorum, Rex Francorum, Rev Scotorum -- King of the
English, King of the Franks, King of the Scots. And one of the most pathetic
figures in history is still always known to us as the 'Queen of Scots.' 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 associated with a definite portion of soil. The investigation of the process
which we 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 last stage of this process. The lawyers
on the whole regard Sovereignty as the Sovereignty exercised by individuals,
and the result was extremely important to International Law, for the assumed
individuality of sovereigns enabled its founders to regard states as moral
beings bound by moral rules. If the units of the International system had
continued to be what they apparently were at first, tribes or collections
of men, it is doubtful whether that system could have been constructed, and
at all events, whether it could have taken its actual present form.




Some of the words in Mr. Bernard's definition reflect a much later influence
upon law -- e.g. that of Mr. John Austin. He gives to the position that a
sovereign Government cannot be controlled by another, an importance which
can hardly be said to belong to it in International Law. The position is,
in fact, indispensable in Austin's system. There is, in his view, an all-powerful
portion of every community which can do what it pleases as regards the rest,
and this all-powerful portion or Sovereign is the author of law. No objection
can be taken to it from the view of Austin's theory; but it should be always
carefully remembered in our branch of jurisprudence that Mr. John Austin's
definition of Sovereignty is not that of International Law, though in almost
all the very modern treatises which have dealt with this subject solve confusion
between the two is observable. It is necessary to the Austinian theory that
the all-powerful portion of the community which make laws should not be divisible,
that it should not share its power with anybody else, and Austin himself
speaks with some contempt of the semi-sovereign or demi-sovereign states
which are recognised by the classical writers on International Law. But this
indivisibility of Sovereignty, though it belongs to Austin's system, does
not belong to International Law. The powers of sovereigns are a bundle or
collection of powers, and they may be separated one from another. Thus a
ruler may administer civil and criminal justice, may make laws for his subjects
and for his territory, may exercise power over life 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 his territory.
This in point of fact is the exact condition of the native princes of India;
and states of this kind are at the present moment rising in all the more
barbarous portions of the world. In the protectorates which Germany, France,
Italy, and Spain have established in the Australasian seas and on the coast
of Africa, there is 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 except those permitted by the protecting state. As 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 resemble India under
the government of the East India Company.




As a matter of fact nearly all the modern writers on International Law
do divide the rights flowing from the Sovereignty of states into groups.
Their 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 is known from the title of his book, into law of war and law of peace;
and writers of our day, following this distribution, but falling into an
error into which Grotius did not fall, classify all the rights of states
as rights of war and rights of peace. Some modern publicists make a more
general division into two classes; first, primary rights or absolute rights,
and in the second place conditional or hypothetical rights; the first being
the rights to which a state is entitled as an independent moral body, or
in other words that to which it is entitled during peace; the conditional
rights being those to which it is entitled when placed in special circumstances,
the special circumstances contemplated being war. The subject of rights and
duties, arising in a condition of war, will be taken up at a different point
of this course, and to-day we will confine ourselves to the absolute or primary
rights, those which a state possesses during peace. I observe in modern writers
a tendency so to state this part of the law, and so to argue, as to suggest
that these absolute rights are nothing more than those which may be logically
inferred from the mere fact that a state has existence. This is very simply
put in the account of the same class of rights which is given by the author
of a valuable work on International Law, Mr. Hall. He says: 'Under the conditions
of state life the right to continue and develop existence gives to a stare
other classes of rights. These are: first, to organise itself in such manner
as it may choose; secondly, to do within its dominions whatever acts it may
think calculated to render it prosperous and strong; thirdly, to occupy unappropriated
territory and to incorporate new provinces with the free consent of the inhabitants,
provided that the rights of another state over any such province are not
violated by its incorporation. Thus with regard to the first power or right
which is alleged to reside, by the nature of the case, in a sovereign state,
the power of organising itself in such a manner as it may choose, it follows
that such a state may place itself under any form of government that it wishes,
and may frame its social institutions upon any model. To foreign states,
the political or social doctrines which may be exemplified in it, or which
may spread from it, are legally immaterial.'




This is correct law, and in our day I do not doubt that to most minds
it would seem plain that, the condition of Sovereignty being taken for granted,
these rights so stated follow. But, as a matter of fact, confining ourselves
to this branch of state powers, none have been more violently denied or disputed;
and if they were preserved it is far less owing to their logical connection
with the definition of state Sovereignty, than from the fact that, from the
very first, the position that they exist has been plainly stated by the international
lawyers. And the fact that these rights have been preserved is a signal tribute
to the importance of International 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 I have been speaking.
The pacification of the Continent, after the overthrow of the French Empire,
was succeeded by a series of movements instituted by communities for the
purpose of obtaining Constitutions; that is, for guarding against being remitted
to the same condition of despotic rule in which the French Revolution had
found them. All these Constitutions had for their object the limitation of
the powers of the King. Perhaps the most democratic of them was the one known
as the Spanish Constitution of 1812. When in fact the Spanish Cortes at Cadiz
framed this Constitution, Ferdinand, the King of Spain, was in the hands
of the French; and therefore the Spanish Constitution-makers had to contemplate
a Constitution suitable to a country from which the King would be, perhaps,
permanently absent. Naturally, therefore, the powers of the King were in
this Constitution reduced to very little. The King of Spain, on his return
from imprisonment, denounced this Constitution, but it obtained great favour
in certain parts of Europe, and in 1820 the Neapolitans, after a revolution,
compelled their King to grant a Constitution which was a copy of it. Much
dismay was caused to the Continental Powers which retained their despotisms,
and the Congresses of Laybach and Troppau assembled to consider the danger
of the spread of what were then known as 'French principles' from Naples
to the rest of Europe. It was finally determined that the Neapolitan Constitution
should be modified, and that compulsion should be put on the not very reluctant
King by the arms of Austria. Great Britain, however, 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 Spanish despotism, the compulsion on this occasion
being put upon Spain by France.




Before, however, the European peace finally broke up, the current had
turned in the other direction; and Great Britain, whose foreign affairs were
now directed by Lord Palmerston, employed its influence to assist states
which desired to obtain Constitutions. In addition to the desire for popular
government the spirit of nationality had now come into play; and the ultimate
result was the intervention of Napoleon III in Italy and the destruction
of the Italian despotisms. Therefore all the Powers in Europe, during the
peace, did in turn act upon principles from which the inference might be
drawn that they denied the right of a state under certain circumstances to
adopt what political Constitution it pleases; nevertheless this rule of law
in the long run prevailed; nor can there be the slightest question that it
is of the greatest value. Of all rules of public law it is the one which
does most to prevent the whole of the civilised world being brought under
an iron-bound theory of government. It enables theories of government to
be tested by experiment in several states, and prevents any one of them from
overwhelming the rest whether in the name of order or in the name of freedom.




I pass now to the second of the rules which I have quoted from Mr. Hall.
Every sovereign state is entitled to do, within its dominions, whatever acts
it may think calculated to render it prosperous and strong. Two consequences
follow from this position. A state may take what measures it pleases for
its own defence; and a state may adopt whatever commercial sytstem it thinks
most likely to promote its prosperity. That a state has these powers is not
now denied, and would not, I think, be disputed; but nevertheless if the
existence of these rights had not now for two centuries been affirmed by
International Law, I think they would have turned out to be full of pretexts
for war. Even at this moment the patience of states is hardly tried by the
way in which their neighbours act upon the principle. Take France and Germany.
Rarely in the history of the world have there been such achievements of military
engineering as are exemplified in the fortresses which line the long border
of the two countries. Every one of those fortresses is just as available
for attack as for defence; and knowing what men are, it is really wonderful
that no complaint has at present been made of the mere fact of their construction.
Take again two dependencies of European countries, which are really great
countries standing on a footing of their own British India and Asiatic Russia.
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 engaged at vast outlay
in creating a system of railways within its own countries; and we can see
even now that any fresh railway constructed within the border of the one
country gives rise at least for criticism and private complaint on the part
of the other. I do not think we can doubt that if International Law had 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 followed by every variety of war. What really enables states
to exercise their Sovereignty in this way is nothing but the legal rule itself.




So also with regard to commercial systems. They differ enormously in contiguous
communities. There is no question that of old the English Navigation Laws
were bitterly disliked by a great part of Europe; and now there is a standing
difference between a number of communities on the subject of Free Trade and
Protection, and but for the rule affirming the unrestricted right to adopt
such commercial system as a country pleases, this difference of economical
opinion would undoubtedly be most dangerous. As the law stands, a state may
directly and deliberately legislate against the particular industries of
another; and so far as we are concerned we have so fully acquiesced in this
principle that we allow our colonies to exercise the privileges once grudgingly
conceded to independent states, and to exclude our manufactures by prohibitory
fiscal provisions.




The third of Mr. Hall's rules states theta sovereign state has an unlimited
power to occupy unappropriated territory. Here is a very great question,
which was the fertile source of quarrel in the seventeenth and eighteenth
centuries, and which perhaps may assume a new importance in the twentieth.
The discovery 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 was not at first ready with rules to
meet it. The first tendency of International Law was to attribute an exaggerated
importance to priority of discovery. It was thought by the earlier jurists
to be the same thing in principle as the Roman Inventio, the form of occupation
by which under the Law of Nature property was acquired in a valuable object,
such as a jewel, belonging to nobody. But in our days prior discovery, though
still held in considerable respect, is not universally held to give an exclusive
title. The United States indeed have not unreservedly agreed to the degradation
of first discovery from its old consideration. In 1843 that Government protested
against the ground taken by the British Foreign Office that a discovery made
by a private individual, in the prosecution of a private enterprise, gives
no international right. But the American Secretary of State in the same despatch
admitted it to be a point not yet settled by the usage of nations, hoer far
discovery of a territory which is either unsettled or settled only by savages
gives a right to it. (Wharton, i. 5.) But this inconvenience of resting rights
upon mere discovery has caused more distinct forms of occupation or annexation
to be preferred to it. Nearly all titles of discovery are of old date, and
many of these are matters of historical dispute; while at the same time the
world is so well known that new titles of discovery are rare. On the whole,
some kind of formal annexation of new territory is now regarded as the best
source of title. It is still allowed that prior discovery, if established,
may give legal importance to acts and signs otherwise ambiguous or without
validity. A cairn of stones, a Flagstaff or the remains of one, may mean
little or nothing if found on a desolate coast; but if it can be shown to
have been put up by the first discoverers, it may obtain great significance
and importance. All discovery is now disregarded, unless it be followed by
acts showing an intention to hold the country as your own, the most conclusive
of these acts being the planting upon it some civil or military settlement.




A great distinction is now drawn between appropriators of new territory
who are furnished with a general or special authority to effect the annexation,
and appropriators who have no such authority. If the state to which the commissioned
appropriator belongs should afterwards ratify the appropriation, a good international
title would be acquired by it, and so also if authority to appropriate on
behalf of the state had been originally given. In the case of an uncommissioned
navigator, something more than a mere formal assumption of possession is
required. For example, if a 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 may ratify their act
and declaration, and the title is made complete; but if an uncommissioned
navigator takes possession of a new country in the name of his Sovereign,
and then sails away without forming a settlement, the modern doctrine is
that this originally imperfect title cannot afterwards be completed by ratification,
and is liable meanwhile to be set aside by the independent acts of other
sovereigns.




LECTURE IV.




TERRITORIAL RIGHTS OF SOVEREIGNTY.




All the department of International Law with which I was occupied at the
close of my last lecture, the acquisition by a State of unappropriated territory;
has been much influenced by the Roman Law. What takes place may still be
described by the Roman phrase occupatio. The fundamental rule is the same
in the original and in the derivative system. In order that new lands may
be appropriated, there must be physical contact with them, or physical contact
resumable at pleasure, coupled with an intention to hold them as your own.




The leading precedent in such cases is the controversy as to the status
of the Oregon territory and as to the mode in which that status arose. You
will find it set forth at some length in all the modern international treatises,
and more particularly in those of American writers. No dispute more nearly
gave rise to a war. The interests at first at stake seemed to be merely those
of competing fur companies; but this impression has not been justified by
the event. The whole position of the territories in dispute has been changed
by the construction of two great railways. The Northern Pacific Railway has
opened up the fertile and wealthy lands which were claimed by the Americans
on the south, while on the north the lands claimed by Great Britain include
the Canadian province of British Columbia, which has been practically incorporated
with the Canadian Dominion by the construction of the Canadian Pacific Railway.
I should perhaps add that the facts in controversy were not altogether plain;
but it is generally admitted that Captain Gray, from whom the Americans claimed
title, was the uncommissioned agent of a fur company, while Captain Vancouver,
upon whose discoveries the English claim was based, though he assumed possession
of the territory for Great Britain, never took this step till he heard of
Gray's observation. This, after what I have said of the principles, may serve
to show the difficulties of the question at issue. It was most wisely settled
by a compromise embodied in the Treaty of Washington.




Here let me observe that one great question constantly arises upon the
appropriation of territory by discovery or by occupation: what area of land
is affected by the necessary acts when they are properly completed? Settlements
are usually first established upon coasts, and behind them stretch long spaces
of unoccupied territory, from access to which other nations may be cut off
by the appropriation of the shore lands, and which, with reference to a population
creeping inwards from the sea, must be looked upon as more or less attendant
on the coast. What then in this case is involved in the occupation of a given
portion of shore? It seems to be a settled usage that the interior limit
shall not extend further than the crest of the watershed. It is also generally
admitted, on the other hand, that the occupation of the coast carries with
it a right to the whole territory drained by the rivers which empty their
waters within its line; but the admission of this right is perhaps accompanied
by the tacit reservation that the extent of coast must bear some reasonable
proportion to the territory which is claimed in virtue of its possession.




I said before that the proceedings of several European Powers give us
reason to think that questions with regard to Sovereignty over new countries
acquired by occupation may again arise, though possibly not in the present
century. It is to be observed, however, that hitherto the title, which has
been put forward to lands assumed by Germany and France, by Spain and Italy,
has very generally been made to rest upon the consent of the native indigenous
community occupying them, or of some sort of Government to which they are
in the habit of submitting. The question as to the degree in which the occupation
of new land by a savage or barbarous tribe would bar occupation by civilized
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 civilized explorers or the states to which they belonged. There
is no doubt that international practice started with the assumption that
the native indigenous title might be neglected on the ground that the inhabitants
found in the discovered countries were heathen. Roman Catholic explorers
and their sovereigns were satisfied with admitting that it was the duty of
states taking possession of new territory to convert the inhabitants to the
Roman Catholic form of Christianity. 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 civil institutions introduced from Spain. In Spain, as
in all continental European countries, at the day of Columbus and Cortez
there existed the corvee or obligation to labour gratuitously for the State
on roads and other public works; and the corvee was transplanted to the new
American dependencies. There was also in the mining provinces of Northern
Spain a considerable population who were bound to work at mining operations
for the benefit of the proprietors, and whose status very nearly approached
that of the slave. This quasi-servile status was more widely extended, and
was even found in Scotland at the beginning of the last century. It was therefore
hardly surprising that it was introduced into Spanish America, North and
South, where it brought about frightful cruelties. Queen Isabella of Castile
appears to have been sincerely anxious to abate the cruelty of the Spanish
forced labour; but she was assured by the missionaries that, when released
from the obligations of cultivation and mining, the timid natives retreated
into the wilds from the company of the Spaniards and lost their Christianity.
Many of you must be aware 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 it is only just to remark
that, after nearly four 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 community is virtually of Indian extraction
and colour.




In North America, where the discoverers or new colonists 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 war almost by Divine ordinance. This view
was first dissented from by an English sect to whom many experiments in the
practical application of humanity are due -- the Quakers; and the agreements
made with the Indians of Pennsylvania by William Penn satisfied the consciences
of those whom he represented. Nay, further observation has shown a very decided
tendency in the United States to admit that the land necessary for their
subsistence should not be taken away from the North American Indians unless
in some form or other sufficient provision be made for their subsistence
by agriculture or by hunting. The purely legal doctrine is this: a very famous
American judge, who did more than any other man to shape the early jurisdiction
of the Supreme Court of the United States, laid down that the British title
to American territory, which the Federal Government 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. But the admission that enough land must be left
for the subsistence of all savage natives is now generally made by all proprietors
of new territory. As a rule, however, at the present moment the tribes or
communities found on the lands which the European states have taken possession
of, have passed the stage which the American Indians were in when Europeans
first came into contact with them. Prince Bismarck has expressly declared
that he regards the German annexations as following the example of the British
East India Company. Here it is assumed that some organised community is found
in possession of the land. After the annexation they retain whatever rights
they possessed before, save only the right of having foreign relations with
anybody they please.




Up to this point I have been speaking of the jurisdiction and authority
claimed by sovereign states over certain definite portions of the earth's
surface. The narrow limits of my course forbid my exhausting what is a very
extensive subject. It will be more convenient, I think, that I should leave
the remaining topics contained in the subject of Sovereignty over land, and
that I should pass on to Sovereignty over water, treating it very briefly.
As before, I merely note points of interest and difficulty which occur as
I proceed. States in fact are in the habit of exercising 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 question
of the mare clausum and the mare liberum -- sea under the dominion of a particular
Power or sea open to all -- names identified with the great reputations of
Grotius and Selden. In all probability the question would not have arisen
but for the dictum of the Institutional Roman writers that the sea was by
nature common property. And the moot point was whether there was anything
in nature, whatever that word might have meant, which either pointed to the
community, of the sea or of rivers, and also what did history show to have
been the actual practice of mankind, and whether it pointed in any definite
way to a general sense of mankind on the subject. We do not know exactly
what was in tile mind of a Roman lawyer when he spoke of nature. Nor is it
easy for us to form even a speculative opinion as to what can have been the
actual condition of the sea in those primitive ages somehow associated with
the conception of nature. The slender evidence before us seems to suggest
that the sea at first was common only in the sense of being universally open
to depredation. The sea of early Greek literature appears to have swarmed
with pirates. But there is older evidence. There are some Egyptian inscriptions
which appear to speak of piratical leagues formed among the small Mediterranean
states for making descent on weak and wealthy maritime communities. There
are some of the names recorded which may be identified with the ancient appellations
of tribes subsequently famous; and one cannot avoid the suspicion that the
famous war of Troy arose from an expedition of this kind, whatever other
pretexts for it there may have been. Whatever jurisdiction may have been
asserted probably did not spring from anything which may be called nature,
but was perhaps a security against piracy. At all events this is certain,
that the earliest development of Maritime Law seems to have consisted in
a movement from mare liberum, whatever that may have 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 rest. No doubt Sovereignty over water began as a
benefit to all navigators, and it ended in taking the form of protection.
Mr. W. E. Hall, in a very interesting chapter of his volume (Part ii. 2),
has shown that International Law, in the modern sense of the words, began
in a general system of mare clausum; the Adriatic, the Gulf of Genoa, the
North Sea, and the Baltic, were all closed and were under authority, and
England claimed to have precedence and to exercise jurisdiction of various
kinds from the North Sea and the parts of the Atlantic adjoining Scotland
and Ireland southwards to the Bay of Biscay. In all these waters the omission
to lower the flag to a British ship would have been followed by a cannon
shot. Thenceforward the progress of maritime jurisdiction was reversed --
from mare clausum to mare liberum. And the Sovereignty allowed by International
Law over portions of the sea is 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 a large number of maria clausa are not obscure.
In the first place there 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 liberum. 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. The repugnance of the most adventurous
states to the extravagant 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 which the
new maritime nations, the Dutch and the English, no longer reverenced --
the Pope. Thus the widely prevailing exclusive maritime Sovereignty of early
days declined. The English claims dwindled to 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 whole of the narrow
seas for ceremonial purposes; these last claims were once so serious that
even Philip II of Spain was fired into by an English captain for flying his
flag when he came into the narrow seas tor the purpose of marrying our Queen
Mary.




The language of the ordinance of Hastings, attributed to lying John, was
even much stronger:




'If a lieutenant of the lying do encounter upon the sea any ships or vessels,
laden or unladen, that will not strike or veil their bonets at the commandment
of the lieutenant of the lying, 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 goods of enemies.'




I have already spoken of the doubts entertained by English judges, and
expressed in the 'Franconia' case, as to that jurisdiction over three miles
or a league which is said to exist over territorial waters. If those opinions
be examined, it will seem that the doubts chiefly rest on the fluctuations
and differences of view as to the exact extent of territorial water which
may be claimed under the general rule of International Law. In some cases
the claim is identical with that of the international writers to Sovereignty
for three miles over the water next adjoining the shores. In other cases
the claim is larger. It is easy to understand these differences if we bring
home to our minds that 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 called the King's Chambers. These are portions of
the sea cut off by lines drawn from one promontory of our coasts to another,
as from the Land's End to Milford Haven. The claim has been followed in America,
and a jurisdiction of the like kind is asserted by the United States over
Delaware Bay and other estuaries which enter into portions of their territory.
A more indefinite claim was advanced by British sovereigns to a larger extent
of the water by the prohibition which they issued against the roving or,
as the technical word was, the hovering of foreign ships of war near the
neutral coasts and harbours of Great Britain. In more recent times what was
known as the 'Hovering Act' was passed, in 1736, and this assumes for certain
revenue purposes a jurisdiction of four leagues from the coast by prohibiting
foreign goods to be transhipped within that distance without payment of duties.
The United States here again have copied this provision, and in either country
the statutory legislation has been declared by the courts of justice to be
consistent with the law and usage of nations. The once extensive but now
greatly diminished claims of Great Britain have not been exclusively of advantage
to her. We have a trace of the amplitude of the old claim in the necessity
which Great Britain has submitted to of great expenditure on the costly duty
of lighting by lighthouses and in other ways a much larger extent of seaway
than is clearly under her jurisdiction.




The jurisdiction of a state over a portion of the sea nearest its coasts,
either as a fragment of ancient claims or under the rule of International
Law, is often said to exist by virtue of a fiction under which water is treated
as land. You will find on examining the opinions of the judges in the 'Franconia'
case that the admissibility or otherwise of such a fiction fills considerable
space in the arguments. Conversely, the full Sovereignty of a state over
the portions of land which it includes, and which are covered by water, rivers
and lakes, might be supposed to exist under the Law of Nature. But this apparent
natural completeness of Sovereignty is limited, as is seen in one case which
has had more than its share of attention from international writers. Wherever,
as often happens in a river of great length, it passes through the territory
of a considerable number of states, it has been asserted that each one of
those states has a right of navigation to the sea; and it has even been claimed
that wholly foreign states can navigate the river from its mouth up to any
one of the co-riparian sovereignties. It is the fact that such a right as
I hare described has been exercised in all great European rivers for many
centuries, and I believe the reason to be one which every traveller along
such a river as the Rhine will at once understand. The command 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 tolls which were exacted from
a vessel as it passed from one sovereignty to another, and the long rivers
were burdened with obligatory payments of this kind down to the mouth. Of
course the burden was excessively heavy on the Rhine owing to the number
of semi-sovereignties or fractional sovereignties which abounded within the
limits of the Empire. In one instance a portion of the Rhine was absolutely
closed under a provision of the Treaty of Westphalia. The Scheldt, or passage
through the Dutch territory at the mouth, was closed to every other co-riparian
Power, and was free only to the Dutch themselves. There was some pretext
for this exceptional rule, because no doubt this portion of the Rhine was
mainly the work of Dutch industry, for the river enters there into the gigantic
constructions which have been made by Dutch engineers and by Dutch labourers
for the purpose of protecting or recovering the Dutch territory from the
sea. The closing of the Scheldt was, however, never in favour with the international
writers, and was for a great length of time strongly objected to. It has
a gloomy celebrity, for it was the forcible opening of this passage by the
French in favour of the Flemings and against the Dutch which led to the entrance
of our own country into the war of the French Revolution.




Some writers on International Law have asserted that the innocent navigation,
as the phrase runs, of a river circumstanced like the Rhine, existed by nature.
This was controverted by the others, and the question is one of the great
topics of argument in International Law. The discussion, as sometimes happens,
has been much embarrassed by the use of terms of dubious meaning. Those who
denied the right generally, allowed that there was an imperfect right to
the privilege claimed. These terms 'perfect' and 'imperfect right' descend
to us from the Roman Law, where an imperfect law is a law without a sanction.
John Austin has examined these terms 'imperfect' and 'perfect law,' and asserts
that in such cases the lawgiver, though he has indicated his intention, has
forgotten or accidentally omitted to impose penalties on disobedience. Such
a use of words is altogether out of place in International Law, because in
that system there is never any direct sanction, since there is no common
sovereign. (consequently 'imperfect law' and 'imperfect right' have gradually
attained a different sense in later International Law. Sometimes the words
were used to imply that it would be fair and reasonable to concede the liberty
claimed, sometimes it seems to have meant that a state alleged to lie under
an imperfect obligation may concede the privilege, but might consult its
own convenience as to the method of concession. If this way of expressing
the conflicting doctrines had always been followed, it is a not inconvenient
basis for practically settling the question. Many states will acknowledge
an imperfect duty which would refuse to allow a perfect right in any sense
of the words.




On this basis, however, that of imperfect right, tab passage of rivers
has been largely regulated by treaty. The Rhine and the Elbe were placed
under special regulations in 1814 and 1815, after the close of the great
war, by which all the states along their banks had a right of access to the
sea. In 1828 there began a violent dispute between England and the United
States as to the power of navigating the St. Lawrence. The St. Lawrence is
in point of fact the outlet 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 close the St. Lawrence
at pleasure, though she never exercised the power which she assumed. On the
other hand, the United States, as sovereign owners of valuable territory
abutting on some of the great lakes, assumed a free right of navigation to
the mouth of the St. Lawrence. Both Powers claimed more than they hoped to
obtain. The language of the English Foreign Office assumed that England had
a perfect right to forbid the navigation of the river. The United States
seemed to assert that the whole river was open to themselves, and perhaps
to navigators of all civilised states. The controversy ended in 1854 much
in the same way as the disputes about passage down the Rhine, and the principles
here applied were shortly afterwards applied to the great rivers of South
America. They were all thrown open, the Parana, the Uruguay, and the Amazons.
This liberality perhaps was more due to an increased perception of the advantages
of commerce than to the adoption of either one or other of the alleged rules
of International Law. In all cases, however, the legal view of the matter
is that the riparian states have assented to an arrangement based on an imperfect
right.




I have spoken at the close of my last lecture of the intricate controversies
in International Law which have a fiction for a base. Perhaps the fiction
most celebrated among international lawyers is that of ex-territoriality.
The fiction of ex-territoriality is in fact founded on a metaphor. A man
in a foreign country or a ship in foreign waters is conceived as still within
the limits of the original sovereignty to which he belonged. Sometimes, it
has been said, the ship is conceived as a portion of the sovereign state
floating about in the high sea or elsewhere. The word seems to have been
originally used to describe the privileges of ambassadors in foreign states,
and it describes them as vividly and on the whole as accurately as a metaphor
can. The main drawback to the use of such metaphors in legal discussion is
that men, and particularly lawyers, begin in time to conceive the metaphor
as having an existence of its own, and they make it the starting point for
new inferences which themselves are often metaphorical.




This peculiarity remarkably distinguished another employment of the figure
of which I am speaking. The jurists of some nations contend that the ships
of a state are ex-territorial when in the territorial waters of another state.
This is again denied by others, and various very difficult questions have
arisen in quite recent times through the ambiguity of the terms employed.
We may take as an example of this the controversy which arose fourteen or
fifteen years ago as to the duty of captains of ships of war in regard to
fugitive slaves. Ships of the British Government were constantly lying in
the territorial water of independent states in the Eastern seas; for example,
in the Persian Gulf within the territorial water of Persia or within the
territorial water of Turkey. If a Man-of-War lying in its territorial water
was under the jurisdiction of the state to which the neighbouring coast belonged,
one treatment of a very difficult case was incumbent on her captain which
would become wholly different if a ship-of-war remained within the territorial
water of the state whose flag it was flying. This case was that of the fugitive
slave escaping to a British Man- of-War. It frequently arose, for it was
generally known among the populations near the coast that the English laws
did not allow or pay any regard to the status of slavery. If the ship was
within the law of the neighbouring territory, there could be no question
that the fugitive should be given up again to his master. On the other hand,
if the ship were subject to the law of the country whose flag it sailed under,
then it became the duty of the captain to carry away the fugitive and to
put him on shore in some place where he would not be again reduced to slavery.
Conflicting reports reached this country as to what was the practice in these
seas, and a large commission, consisting chiefly of lawyers, was ap- pointed
for the purpose of determining the practice and deciding what the law ought
to be. The discussions which followed may be compared with those in the 'Franconia'
case for the number of topics of International Law which they included. In
the long run the commission came to an agreement. Some of them thought that
a British ship in Turkish water was for all purposes ex-territorial and under
British Sovereignty. Others thought that it was for the time under the Sovereignty
of the Turkish Government. But it was unanimously determined by the commissioners
that, whichever view prevailed, a British officer could not lawfully be called
upon to give up a fugitive in any case where the result of surrendering him
would be to expose him to ill usage.




What I have said applies to Men-of-War, to public ships flying the flag
of their own sovereign, but the fiction of ex-territoriality has had a wider
scope than when applied to such ships. All through the great war at the beginning
of the century the United States maintained that even private vessels ought
to be considered as ex-territorial and as retaining the law of the country
to which their owners belonged. This pretension was stoutly combated by Great
Britain. The controversy really turned on one peculiar practice of the British
Navy in those days. Being manned by impressment in its own country, its captains
sought to supply insufficiency in their crews by examining the ships of neutral
nations which they met, and taking out of them any sailors who were found
to be of British nationality. They argued (and that this is the rule we shall
see hereafter) that every private neutral ship on the high sea is liable
to be searched in order that a belligerent vessel may 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; and being there lawfully,
it was argued by the British lawyers and Courts that he could take away and
remove to his own ship sailors engaged in the navigation of the neutral ship
who were subjects of Great Britain. No dispute 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 to its revival
in the decisions of Courts or in law books. Impressment is now given up by
the British Government, and if in some future war Great Britain is compelled
to supply its ships with crews through compulsion, resort will almost certainly
be had to some other expedient. It is not impossible that we may have to
copy the system which is in force in France and Germany, of a conscription
confined to the maritime population. It should also be borne in mind that
in the Men-of-War of our day, which are machines of the highest elaborateness
and 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 is considerably
diminished.




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 it is very unlikely to recur;
and indeed if an American proposal on which I shall have to say 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 ships 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 which were the foundation of the claim, and I suppose that
an American lawyer would be bound by the decisions of his own National Courts
to assert it, at least abstractedly. What I have said, it will be seen, applies
solely to private vessels. With regard to public vessels, Men-of-War, there
is a much nearer approach to uniformity of practice and doctrine. On the
whole, the position that a public ship flying the flag of the sovereign of
an independent country is under the law of that country, even when in the
territorial waters of another country, is accepted by the Courts and lawyers
of the civilised world. But a distinction is drawn between acts of which
the consequences begin and end on board the ship and take no effect externally
to her, and acts done on board which have an external operation. In the first
case the jurisdiction of the sovereign to whom the ship belongs is exclusive.
In the second, the sovereign in whose waters the ship is lying may demand
redress for the illegality, but it must be demanded from the Government which
is Sovereign owner of the vessel. The cases may be illustrated by occurrences
which have actually happened. One sailor on board a Man-of-War lying in territorial
water shoots another; or a sailor fires a rifle from the deck of the ship
and kills a native of the neighbouring country. In the first case, the captain
may deal at once with the offender as the law and usage of his own country
permit. In the second, he must wait until a demand is made upon his sovereign.
I have already mentioned 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 principle, but established a working
rule which is sufficient for the occasion.




LECTURE V.




NAVAL OR MARITIME BELLIGERENCY,




To sum up what I have been saying. I 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. This fiction of ex-territoriality,
is applied by general consent to the residences and persons of ambassadors
and diplomatic agents in foreign countries, and on the whole the law on these
subjects is expressed with sufficient accuracy by the fiction before us.
By most nations the fiction is also applied to the portions of sea adjacent
to the coast and deemed to be what is called the territorial waters of a
particular state; that is to say, water which, so far as water can be assimilated
to land, is regarded as part of the state's territory. Finally, by some communities
a merchant ship on the high sea is alleged to be ex-territorial -- to be
in the same position as the territory of the country to which she belongs.
In this last way the fiction before us has become mixed with a very important
branch of law, the law of Naval Belligerency, and I use it as a convenient
point of transit to that subject which I might take up at several places
in these lectures, but which I wish to include in this portion of them for
several cogent reasons. It is a province of law which rose into extreme importance
at the end of the last century and the beginning of the present; it has long
been, and still is, the field of many bitter disputes; it is 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 very serious question as to the true interests of England in
a reform of that system which all but obtained the assent of the civilised
world.




I proceed, therefore, to deal with naval or maritime belligerency in its
effects on belligerent Powers and on neutrals. The elements of the subject
are simple. When two states go to war, the ships, public and private, of
one are, relatively to the other, so many articles of movable property Boating
on the sea. The capture of one of them by a ship of the other belligerent
is prima facie regulated by the same principle as the seizure on land of
a valuable movable by a soldier or body of soldiers. The law on the subject
descends to us directly from the Roman Law. The property of an enemy is one
of those things which the Roman Law in one of its oldest portions considers
to be res nulliusno man's property. It may be taken just as a wild bird or
wild animal is taken, by seizing it with the intention to keep it; but it
is expressly laid down that a wild animal if it escapes ceases to be the
property of the captor; and the question is, when is the captured property
so reduced to possession as to make it altogether the property of the captor?




There was much dispute on this point among the interpreters of Roman Law.
Some, including Grotius, maintained that the proper test was time, and the
thing had to be possessed by the captor for four-and-twenty hours. A trace
of this rule may be seen in the alleged power of the maritime captor to destroy
the vessel which he has taken when he has no means of bringing it into a
port. There is, however, another rule of Roman origin which has gradually
supplanted the first mentioned. The captor must take the captured property
infra presidia, 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 which it
cannot be rescued otherwise than by force. But in order that the captor may
have the full benefit of his capture, yet another condition must be satisfied.
The captured ship and its cargo, or cargo belonging to the enemy but found
in a neutral ship, must be taken before a prize court and condemned as lawful
prize. Till this condemnation has taken place the purchaser of the captured
property could not be sure that he had a complete title to it, and could
not obtain full value for it if he sold it.




Prize courts are sometimes called international courts, and no doubt modern
International Law does, to some extent, recognize them; but in principle
a prize court is a court established by positive municipal law, and it is
entrusted by the sovereign of the state in which it is established with the
duty of deciding whether ship or cargo is prize or no prize. In the abstract
its object is to satisfy the conscience of the sovereign that the captures
made by his subjects are valid captures. He is always, in theory, supposed
to be responsible for them. But the great practical function of a prize court
is to decide between the belligerent sovereign's subjects and subjects of
neutral states. Neutral goods may form part of the cargo found in the enemy's
ship which has been legally captured; or, again, cargo belonging to the other
belligerent may have been found on the high sea in a neutral ship; or, again,
the vessel brought into port may have been unlawfully captured through having
been in the territorial waters of a neutral state, or by an attack organised
in such territorial waters. In both of these cases capture is forbidden.
If the belligerent sovereign permitted them, he would be guilty of an injury
to an unoffending neutral.




The capture of ship or cargo belonging to one belligerent by the armed
ships of the other is part of the fortune of war; nor can the captor much
complain of having to bring his prize into a port for condemnation. So far
as the captured vessel is concerned, this hardship is somewhat mitigated
by the practice of what is called 'ransoming.' The commander willing to promise
a definite sum for ship or cargo prepares a document which is called a 'Ransom
Bill.' It is drawn in duplicate. The capturing officer takes one copy, and
the commander of the captured ship another; and this ransom bill operates
as a safe-conduct to the captured vessel on her voyage to a separate port.
So far as relates to cruisers of the other belligerent, she enjoys immunity
from 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 at sea, to which a large part of the world
is not, even now, reconciled, are those affecting neutrals. 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 favourable market, though his goods are not liable to capture.
If a neutral ship contains admittedly enemy's cargo, the captain must submit
to have his goods transhipped. These rules are of much antiquity. They are
found in one of those treatises which are authorities on International Law,
but which are older than its recognised beginning. In the ' Consolato del
Mare,' which is supposed to contain 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. These seas were, in the days in which these usages grew up, full
of small commercial ports, all manufacturing and exporting, and not situated
at great distances from one another. The origin of the rule which we are
discussing exactly fits in with the relations of a certain number of small
sovereignties of this kind; and that this is really the origin of the rule
before us is 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
for her loss of time. The condition of these seas which I have sketched --
a number of small towns engaged in actual commerce, but not separated from
one another by any great length of sea -- goes far to explain this ancient
maritime law; but as one maritime 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 for a more general and simpler system. One,
in fact, which grew up was looked upon with much favour. It is often denoted
by a sort of jingle which does not convey a real antithesis: 'Enemy ships,
enemy goods; free ships, free goods.' All the cargo found in a hostile vessel
may be made prize; if the vessel itself belong to a neutral, all the goads
shall be treated as neutral property and shall not be liable to capture.
France was on one side with a severe rule confiscating the neutral ship when
any hostile cargo was carried in it, while the Dutch were for a system more
lenient to neutrals, and finally France herself became patroness of this
rule.




Many treaties have been negotiated between civilised states which embodied
either both these rules or 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 at the base of International Law. The first serious
attempt to effect a general reform of this principle was undertaken at the
close of the Crimean war; and in 1854 the Powers which had taken part in,
or had been most directly interested in, that war, issued what was called
the Declaration of Paris. After reciting that maritime law in time of war
had been the subject of deplorable disputes; that the uncertainty of this
law gave rise to differences of opinion which might 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 have adopted the following summary of the rules which they
wish to see carried into practice: First, privateering is abolished; second,
the neutral flag covers enemy's goods with the exception of contraband of
war; third, neutral goods, with the exception of contraband of war, are not
liable to capture under the enemy's flag; fourth, blockades in order to be
binding must be elective; that is to say, maintained by a force sufficient
really to prevent access to the coast of the enemy. The net result shows
that the rule, free ships make free goods, was adopted; but the other rule
which has so often been coupled with it, enemy ships make enemy goods, was
not adopted.




This Declaration was adhered to by all the Powers who had joined in the
Crimean war, and it seemed for awhile that it would receive the assent of
the whole of the civilized world, thus forming the first great example of
a reform of the Law of Nations resting on the basis of expressly pledged
faith instead of the older foundation of precedent and ancient rule. But
on the Declaration being submitted to the United States, the Government of
that country objected to the first article, 'Privateering is abolished.'
A privateer is an armed private ship commissioned by belligerent sovereign
to depredate on the commerce of his enemy, and rewarded by 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 large standing armies
as permanent establishments to be detrimental to national prosperity and
dangerous to civil liberty. The expense of keeping them up is burdensome
to the people; they are in some degree a menace to peace among nations. A
large force ever ready to be devoted to the purposes of war is a temptation
to rush into it. The policy of the United States 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 render it necessary
for them to maintain a powerful navy or large standing army in time of peace.
If forced to vindicate their rights 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. If this country were
deprived of these resources it would be obliged to change its policy and
assume a military attitude before the world. In resisting an attempt to change
the existing maritime law that may produce such a result, it looks beyond
its own interest, and embraces in its view the interest of such nations as
are not likely to be dominant naval Powers. Their situation in this respect
is similar to that of the United States, 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 of
Nations. To such nations the surrender of the right to resort to privateers
would be attended with consequences most adverse to their commercial prosperity
without any compensating advantages. . .




'It certainly ought not to excite the least surprise that strong naval
Powers should be willing to forego the practice, comparatively useless to
them, of employing privateers, upon condition that weaker Powers agree to
part with their most effective means of defending their maritime rights.
It is in the opinion of this Government to be seriously apprehended that
if the use of privateers be abandoned, the dominion over the seas will be
surrendered to those Powers which adopt the policy and have the means of
keeping up large navies. The one which has a decided naval superiority would
be potentially the mistress of the ocean, and by the abolition of privateering
that domination would be more firmly secured. Such a Power engaged in a war
with a nation inferior in naval strength would have nothing to do for the
security and protection of its commerce but to look after the ships of the
regular navy of its enemy. These might be held in check by one-half or less
of its naval force, and the other might sweep the commerce of its enemy from
the ocean. Nor would the injurious erect of a vast naval superiority to weaker
states be much diminished if that superiority were shared canons three or
four great Powers. It is unquestionably the interest of such weaker states
to discountenance and resist a measure which fosters the growth of regular
naval establishments.'




It is at the same time to be remarked that this opinion, though intelligible,
had not always prevailed, and that early in their history the United States
had negotiated, through Benjamin Franklin, a treaty with Prussia in 1785
by which it was stipulated that in the event of war neither Power should
commission privateers. On the other hand, an early president of the American
Union, Monroe, had laid down that it was unworthy of civilised states to
prey upon private property when in transit at sea. The result of the refusal
of the United States to assent to the Declaration of 1854 was that this Declaration
has not become part of the general law of other civilisations, for the assent
of a state which is perhaps destined to be the most powerful in the world,
and certainly the most powerful neutral state in the world, has been withheld
from it. But the United States Government expressed its willingness to join
in a modified form of the Declaration, if all private property at sea should
be exempted from capture, as President Monroe had argued that it ought to
be; and there is good reason to believe that if the signatories of the Declaration
would agree to this exemption of private property, the United States would
withdraw their objection to the abolition of privateering.




The first article of the Declaration was invoked in a dispute which arose
between the French and Prussian Governments, then at war, during the contest
of 1870. The Prussian Government, soon to be merged in that of Germany, proposed
to raise a volunteer navy. All German seafaring men were to over themselves
for service in a Federal navy for the whole period of the then proceeding
war. The French Government objected to this as a breach of the first article
of the Declaration. They declared that it was a species of revival of privateering.
Some writers, including Mons. Calvo, and to a certain extent Mr. Hall, have
supported these views; but some conditions of the service proposed to be
established, as for example the necessity for the volunteers wearing a uniform,
the incorporation of the new force with the existing navy, and an oath to
articles of war, seem to me to take these naval volunteers out of the class
of privateers. As 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 set
forth above, that its rules do not apply in two cases: first, where contraband
of war is carried in a ship; and next, in the case of a ship endeavouring
to obtain entrance to a blockaded town. Therefore the law of contraband of
war and the law of blockade are not touched by the reform under the Declaration
of Paris, except so far as a principle long contended for is applied to blockades.




From the very beginning of International Law a belligerent has been allowed
to prevent a neutral from supplying his enemy with things capable of being
used immediately in war. Such things are called technically 'Contraband of
War,' and may be condemned independently of all question as to the neutrality
of the owner. The ship and cargo are taken into a port of the captor; the
contraband is condemned in a prize court, but the fate of the ship itself
varies. If the ship belongs to the owner of the contraband, or if the owner
of the ship is privy to the carriage of the contraband, the ship is condemned;
but not so if the ship belongs to a different owner, who knows nothing of
the destination of the contraband commodities. This branch of International
Law is complex and difficult, but it owes its intricacy and difficulty to
one special question: what are the articles stigmatised as contraband? From
the very first, Grotius had laid down that things directly used in war --
for example, weapons -- were contraband. He also ruled that things useless
in war, articles of luxury as he described them, were not contraband. But
outside these categories there were a great number of things capable of employment
both in war and peace -- res ancipitis usus -- and it is in regard to these
that innumerable questions have arisen. Are articles of naval construction
-- for example, the raw materials of sails and cordage -- contraband? Do
they become so at any particular stage of manufacture? Are iron, brass, steel,
etc. contraband? Are coals and horses? Are provisions contraband? To these
questions all sorts of answers have been given. In many special treaties
the list of contraband and non-contraband commodities is given, and the practice
of states is extremely various. On the whole the most general rule which
can be laid down is that, with the exception of weapons or munitions of war,
the contraband, or non-contraband, character of the cargo must depend on
its destination, and on the nature of the particular war which is going on.
The commodity most recently sought to be brought into the list as contraband
is coal. England, the great exporter of coal, refused to admit its being
necessarily contraband; but in the war of 1870 the English Government declined
to allow British coal to be carried to a French fleet that was lying in the
North Sea. The most vehement of the disputes has been, perhaps, that about
provisions. At the end of the last century, when the great war of the Revolution
had beam, 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 is now most fully established. The English Government therefore seized
all ships bound to a French port which were laden with provisions. As their
enemy was believed by them to be on the point of abandoning the contest through
want of provisions, they refused to allow the stock of provisions to be increased.
Just at the same moment the United States had become the great neutral Power
enjoying the advantages of the carrying trade, and the Government of the
United States issued a series of vehement protests against the assumption
of the contraband character of provisions in any circumstances. It is probable
that in future provisions will only be contraband when destined for a port
in which an enemy's fleet is lying. The point on which I desire to fix your
attention is that the test of articles which are contraband of war is not
yet settled.




The other portion of the older law which is not affected by the Declaration
of Paris is Blockade. Blockade is defined as the interruption by a belligerent
of access to a place, or to territory, which is in possession of an enemy.
Blockade is probably confined to maritime hostilities; but it has considerable
external resemblance to a siege by land, and the law of the one acting by
land has visibly affected the law of the other acting by sea. But as a matter
of fact the objects of blockade and siege are not the same. The aim of a
siege is the capture of a strong place or town beset. The aim of a blockade
is to put stress on the population of a port, or on the population behind
it, through denying it communication, commercial or otherwise, with the rest
of the world accessible to it only by sea. This it effects by the rules of
International Law, which permit blockading ships to capture ships of the
other belligerent which attempt 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 by a blockading
squadron. One is that they must be warned of the existence of the blockade.
The mode of giving this notice required by law varies in different countries.
France and certain other countries give notice to each ship individually,
their cruisers stopping it, and seeing that the stoppage is notified on the
ship's papers. England and the United States make public notice in their
own territory, and communicate the fact of the blockade to foreign Powers.
Under modern circumstances, where information is conveyed over the civilised
world by newspapers and the electric telegraph, it certainly seems that the
English and American practice is sufficient. It is hardly possible that there
should be ignorance nowadays of the existence of an established blockade.




The second condition is that mentioned in the Declaration of Paris: the
blockade must be effective; that is, it must be maintained by a naval force
strong enough to prevent access to the blockaded coast. It is the act of
secretly evading a force on the whole adequate which constitutes the offense
that subjects a neutral ship to capture -- what is called 'running the blockade.'
The stress laid on the sufficiency of the blockade is a legacy from the last
century. Hardly any country has not been at some time or other accused of
establishing what is called a 'paper blockade;' that is to say, publicly
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 maximum of annoyance to honest neutrals, but allows a maximum number
of dishonest neutral adventurers to penetrate the line. Nothing can justify
the absolute interdiction of a portion of the coast to neutral commerce except
a method likely on the whole to secure that end. A 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.




LECTURE VI.




 THE DECLARATION OF PARIS.




One point of considerable interest in International Law is the very different
degree of durability which the various parts 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 international writers as to be capable of application between state
and state. By the side of these are borne rules which have been inherited
from the oldest stratum of the Roman Law, rules of great simplicity, and
distinguished at the same time by a great amount of common 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
modem, 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. A good example may be
pointed out in what was once known as the Rule of the War of 1756. If you
look 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 the United States,
a sovereign community which had not been in existence when the rule ~ as
first heard of England, like probably all the nations of the European continent,
adhered to the doctrine that trade with colonies and dependencies was the
exclusive privilege of the subjects of the mother country. The question arose
whether war made any difference to this monopoly. When the mother country
became a belligerent, the route followed by the colonial trade was less obstructed
than in ordinary times. The ships which watched the foreigner who in peace
tried to intrude upon it, were perhaps driven away by the vessels of the
other belligerent; and the route being more open, neutrals constantly tried
to engage in trade which in time of peace would have been forbidden to them.
What, then, was the consequence of neutral invasions of this privilege? It
was argued on behalf of the neutral trader, that there being nobody else
to undertake the transport of commodities, he was entitled to share in it.
This was denied by the English courts of justice, and they decided that a
neutral ship, engaged in a trade of this description, was liable to capture.
This was the rule of the war 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 at that time
a rule which forbade certain articles to be exported from Ireland; and of
course the trade of India, which was in the hands of a company, was even
less open to nonprivileged traders. But this rule, and the state of things
which it implied, are now completely obsolete, and all the dissertations
about them which once filled the books are obsolete. It was the United States,
then new as a sovereign community, which first contested most strongly the
legality of the rule. But it has been in fact destroyed by the indirect influence
of the United States. The fortune of the United States showed that a great
increase 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.




A 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 whole civilised
world. This Declaration, as we have seen, keeps alive 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. I have already pointed out that the list of articles of contraband
of war was not yet closed. The proposal to include certain things in this
class has not in some cases been conclusively rejected, while, on the other
hand, as it is very generally allowed that commodities may become contraband
through the circumstances of a particular war, perfectly new kinds of contraband
may yet make their appearance. Perhaps the articles as to which there has
been most dispute have been those which follow the first class and head the
second; the first class being munitions of war, and the second class things
of what, in International Law, are called 'doubtful use;' timber, sail cloth,
hemp in the early stages of manufacture, cordage, pitch and tar. Lord Stowell
admits this, and gives the reason, that wars have become more and more naval,
so that articles of most use in regard to ships, and the propulsion of ships,
gain more and more likeness to munitions of war. There were endless controversies
on the subject. There were repeated differences with the Baltic Powers it
whose territories the materials of these things were for the most part produced.
Many treaties gave lists of articles of contraband, and to some of these
England was a party. The principle which the English Government several times
adopted was, that naval stores might be taken possession of, but that, unlike
articles of contraband, they must be paid for by the captor. But changes
in the structure and mode of propulsion of ships tend to make this kind of
contraband or quasi-contraband obsolete. Steam renders sails of little utility,
and diminishes their number. The hulls are now more and more made of iron,
and iron wire even takes the place of cordage. It is possible that naval
stores may disappear from the list of contraband, while there may be a struggle
to include such innocent articles as coal and food.




The second exception to the immunity of neutral property is, property
carried in a ship attempting, or reasonably suspected of attempting, to enter
a blockaded port. Blockades in the last century were considered by belligerents
a most elective method of distressing an enemy; and over great part of the
European continent the great markets for traders and the fortified stations
for ships are most exposed to blockade. To prevent neutral vessels from entering
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 war were lying within the port, to diminish seriously the total fighting
force of the enemy. Brest and Toulon were practically blockaded all through
the great war at the beginning of this century and the end of the last. England
was again a 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 between the Northern and Southern States she became
a neutral, it having been at last allowed, even by the United States, that
there was a state of belligerency between the combatants. Even then it became
clear that a considerable change had occurred. Steam made the limited navy
of the Northern States able to maintain a fairly elective 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 was rich and fertile, and many railways had been constructed
in those territories. The effect, therefore, of the blockade was very unlike
the eject of the blockades in the great [Trench war. Articles of first necessity
were easily supplied to the blockaded ports from within, and the effect of
the blockade was to raise the price of luxuries, which were always imported
from abroad. If, however, we look on the present state of the world, we shall
see that no European continental Power of any importance exists which is
not connected by railways with the interior of the country to which it belongs,
and also, through connecting links, with the railway system of the whole
Continent. A blockade may still raise the price of necessaries and conveniences,
but unless aided by a land siege it cannot prevent a sufficient and even
plentiful supply of necessaries and conveniences entering a blockaded place.
It cannot arrest trade; it can only divert it. A land traffic would at once
take the place of a maritime traffic. Hardly any colonial produce reached
the blockaded ports during the great war with France. Now it would flow in
from a dozen openings in Eastern and North-eastern Europe. It is possible
that no part of North America could now be blockaded so as to greatly distress
the country behind. There has been an extensive construction of railways
through all the states on the east side of the United States, 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 resort, and at
which blockades would be of any value. 




The 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
of opinion, but through industrial development, may suggest a suspicion that
the new maritime law created by the Declaration of Paris, though now hardly
more than thirty years old, may yet shortly prove obsolete. The position
is this. Neutral trade is relieved from annoyance and interruption, and privateering
is abolished as regards most of the world. But the United States decline
the new neutral immunities because they will not surrender privateering.
Now in any new war an attempt to enforce the parts of law unfavourable to
neutrals, will probably turn the neutral trading community into a belligerent,
and the power of employing its own and foreign ships as privateers would
make the American Union a very formidable belligerent. The question is, whether
it is worth while amending the Declaration of Paris, and making it of universal
application by accepting the further reforms proposed by the United States;
that is, by exempting all private property from capture, and by abolishing
privateering.




Let us first ask ourselves: what is supposed to be the object in war of
subjecting the property of an enemy to capture, either in his own ships or
in neutral bottoms? It 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. The assumption is that it distresses
the enemy, that it enfeebles his trade, and raises greatly the price of many
luxuries and commodities, and, more than all, that it seriously diminishes
his capital. It is here to be observed that the view of maritime law taken,
even by international lawyers, does not quite answer to the truth A metaphor
used in the last century was that the operations of maritime war resembled
a flight of carrier pigeons pursued by a flight of hawks. But he who would
repeat this figure would have to forget the enormous growth of the practice
of maritime insurance. It may happen as to war risks as with insurance against
perils of the sea, that a capture of as man's vessel, if prudently managed,
may enrich rather than impoverish him. No doubt enhanced rates of insurance
do impoverish a nation, and do diminish its capital. But the loss is widely
diffused, it falls on the well-to-do class, and a war must be very protracted
in which increase of marine insurance would be sensibly felt by the mass
of the population.




Another general position may be noticed. In a war in which aggression
is kept on the old footing by the powers of armament which privateering gives,
the Power which has most property at sea is most injured. The old law took
for granted the equality not only of naval strength among states, but in
volume of trade and of property risked. To the amount of risk the amount
of loss will always correspond. The question,therefore, arises: what interest
have we, what interest has Great Britain, in refusing to grant a general
immunity from capture to all private property at sea? In the first place,
so far as trade is conducted by maritime conveyance, this country has incomparably
the largest share in it. This 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 states, Russia, and the
United States seemed likely to have in turn a monopoly of transport. The
Dutch swept the world for timber adapted to maritime purposes. But now that
ships of all classes are made of iron, the monopoly of construction and possession
has passed to Great Britain. We 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 affecting the matter before us
-- that is, the conformity of the Declaration of Paris to our permanent interests
-- is the relation of maritime law, which it sets up, to the supply of food.
The statesmen of the last century, and of the first part of this, unhesitatingly
assumed that it was the interest of this country to raise the largest part
of the food of its population from British soil. They were used to wars,
and the great French war seemed to them to establish that a country not fed
by the produce of its own soil might be reduced to the greatest straits.
In fact, the price of corn during the great French war, and even for some
years following it, was absolutely prodigious. This is the secret of their
protectionism, and not any particular economical theory. They looked on the
evils of importing food from abroad as a clear deduction from experience.
Since that period, the infrequency of wars has kept out of sight the unexampled
nature of our position with regard to food. So far as the articles most necessary
to life are concerned, we are mainly fed from other countries, removed from
us by vast distances from North America and from India; that is 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.
Sir James Caird, in a paper which he has recently published, says that the
food imported into Great Britain during the year 1887 would probably reach
one hundred and forty millions sterling. Nor can the balance between foreign
commodities and home supplies be seriously altered. Sir James Caird points
out in the same paper that Great Britain is steadily becoming a pastoral
country instead of an agricultural country. The state of living under any
circumstances is at all times very hard to alter; and population, at various
degrees of pace, always multiplies up to subsistence. On the other hand,
the price which we pay for our prodigious purchase of food in other countries
is really paid by our manufactures, of which the ultimate sources are our
coal and our iron, and the inherited skill of our operative classes. Thus
the greater part of the food which we consume in any year can only reach
us through a long voyage, and the price which is the means of bringing it
to us must also come through a voyage of equal length. These, of course,
are economical reasons, but I also look on the subject from the point of
view of International Law. Unless wars must be altogether discarded as certain
never again to recur, our situation is one of unexampled danger. Some part
of the supplies which are matter of life 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 interrupt
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 predatory
cruising. It seems, then, that the proposal of the American Government to
give up privateers on condition of exempting all private property from capture,
might well be made by some very strong friend of Great Britain. If universally
adopted, it would save our food, and it would save the commodities which
are the price of our food, from their most formidable enemies, and would
disarm the most formidable class of those enemies.




Of course I am aware of the objections which might be made. It may be
asked whether it would tend to diminish wars if economical loss were reduced
to the lowest point, and if hostility between nations resolved itself into
a battle of armed champions, of ironclads and trained armies, if war were
to be something like the contests between the Italian States in the Middle
Ages, conducted by free companies in the pay of this or that community. I
think that, even thus modified, war would be greatly abated. But this is
a subject which ought not to be taken for granted without discussion, and
I hope in some future lecture to take it up and go into it completely.




LECTURE VII.




THE MITIGATION OF WAR.




The age in which International Law was born was an age of land wars. The
wars of succession and of feudal ascendancy had partially died out, but the
Reformation brought with it a new fury of fighting, and the wars of religion
were among the most ferocious that mankind had waged. Armies did not then
so much consist of rival potentates, as of hosts in which each individual
detested every man on the generally believed to have culminated in the siege
of Magdeburg. There is a famous passage of Grotius about the licence of fighting
which he saw around him; and though the dates forbid us to see here with
solve writers any allusion to the siege of Magdeburg, there seems little
doubt that the stories of the horrors which became current gave a new point
to the speculations of Grotius 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 sieges. It is said, however, that the population of Magdeburg, which
was taken by storm, was reduced from 25,000 to 2,700. The siege is described
by an English eyewitness, whose account of it, generally regarded as authentic,
constitutes those 'Memoirs of a Cavalier' which are generally embodied in
the works of Defoe. The writer states that out of 25,000 men, and some said
30,000, there was not after the storm a soul to be seen alive till the flames
drove those that were hid in vaults and secret places to seek death in the
streets rather than perish in the fire. Of these miserable creatures too
some were killed by the fierce soldiers, but at last they saved the lives
of such as came out of their cellars and holes, and so about 2,000 poor desperate
creatures were left. There was little shooting. The execution was an cutting
of throats and mere house murders. Later historical information tends on
the whole to relieve the memory of Count Tilly, the commander of the besiegers,
from the infamy which has hitherto attached to it; but all sieges in that
day were to the last degree homicidal, and there is a general impression
that the peculiar ferocity of the soldiery after the capture of a town by
storm was due to the Tartars, who had twice overrun what were then the most
fertile and civilised portions of the world, and who never spared the population
of the town which had resisted them. They appear to have considered that
every stratagem and every degree of bad faith was justifiable for the purpose
of inducing the garrison to surrender, but in the long run they never spared
any man. Nor have the countries in which these 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. I have already several times referred to his
method. He was guided, as it seems, principally by what he supposed to be
examples and precedents. He was a man of great learning according to the
particular standards of learning which prevailed in that day; but the critical
treatment of history had not begun, and the worst of the pile of innumerable
examples which are collected in the 'De Jure Belli et Pacis' is that we cannot
be sure of the authenticity of the accounts of them which are found in the
books of ancient writers. Grotius digested these precedents. He separated
the most humane from the most ferocious, performing the function of separation
by applying to the mass of matter before him, first of all the test of religious
teaching as he found it in the Scriptures, and next the principle of what
the Romans called the Law of Nature. The method of his immediate successors
has been substantially the same; but in our day some scepticism has arisen,
not so much as to the philosophical value of the process as with regard to
its practical results. In modern international writings you may sometimes
find it said that the softening of the usages of war was not so much due
to Grotius, or to writers who came after him, as to the growing humanity
of military commanders. It is true that among the successors of Grotius there
is a great variety in the degree of humanity which characterizes them. Puffendorf
and Bynkershoek are inferior to Vattel in gentleness, and in the wish to
prefer the more humane to the queller usage, but beyond comparison the most
humane of the publicists is Vattel, a Swiss. There is, however, very good
reason to suppose that it was the writings of the publicists which most encouraged
the humanity of war. They all followed Grotius in professing unbounded respect
for the Roman conception of the Law of Nature. Philosophically that principle
is now not much cared for; but the supposed rules of the Law of Nature were
applied by 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, and even enthusiasm, for humanity, and you may perceive that
on the whole the persons who experienced, or pretended to experience, this
feeling, were: believers in the Law of Nature. The chief of them was that
famous man the whole of whose philosophy, political, social, and educational,
was based on the Law of Nature, Jean Jacques Rousseau. It seems in truth,
apart from what the opinion of scholars may have been, that there was always
a close association between the Law of Nature and humanity, and that by their
constant profession of applying that law and of easily distinguishing its
dictates from one another the international writers did materially increase
the gentleness of mankind even when their passions were most excited.




The wars of the last part of the seventeenth and most of the eighteenth
century were naval wars. A great amount of law grew up while they were continuing.
One chief reason why, on the whole, naval usages are reasonable and humane
is, that the belligerents were checked by the neutrals. In land wars a neutral
can only affect proceedings to which he objects by taking part in the strife;
but from the very first the belligerent maritime Powers were prevented from
going to the full lengths of predatory destructiveness by the authority of
prize courts. It is, however, quite true that the commanders of 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 singular, at the same time, that he constantly falls into an error
with which English lawyers are specially charged, that of confounding military
law, which is regulating law, with martial law, which means the will of the
officer commanding. He always spoke of the law of war as consisting in the
volition of the Commander of the Forces.




The first great attempt which was made after the epoch of Grotius to give
general fixity and to humanise the law of land war, was made almost in our
day by an unfortunate sovereign to whom justice has never been fully done,
Alexander II of Russia. He does seem to have been animated, as were both
the statesmen and literary men occasionally in the eighteenth century, by
an enthusiasm for humanity. You are all aware that almost immediately after
his succession to the Russian throne he abolished serfdom; but his efforts
to reform International Law, and specially the usages of war, are less remembered.
He joined in promoting the Geneva Convention, of which I shall say much presently;
he was the author of the proposal for renouncing the use of certain weapons
which caused wounds of unusual painfulness; and he was the sovereign who
summoned and who took an unflagging interest in the

Brussels Convention of 1874. The Brussels Convention failed, and we shall
find, I think, hereafter that the reasons why it failed are remarkably instructive.
I will say that one of the grounds for its not coming to maturity was, that
it was commenced too soon after one of the greatest of modern wars, which
probably never had a rival in the violence of the passions which it excited.
England before the Convention met had stipulated for the omission of all
discussion of the rules of naval war. These, I suppose, were considered to
have been sufficiently settled for the day by the Declaration of Paris; and
at the close of the discussions of the Conference, when even its members
admitted that they had been able to agree on a very small part of the matters
submitted to them, it was the English Foreign Secretary of State, Lord Derby,
who finally gave the Convention its deathblow. Undoubtedly the smaller Powers
of Europe, and the Powers which have not yet taken up the system of great
armies raised by conscription, had very serious reasons for objecting to
many of its suggestions, which had not unnaturally sprung up in the minds
of military men who sympathised either with France or with Germany in the
war which a few years before had been brought to a conclusion. The Brussels
Conference had, however, one result which had great importance and interest.
Just at the close of the American War of Secession the United States had
prepared a Manual of Rule and Usage for the use of their officers in the
field. This example -- the formation of a practical Manual 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 followed by Germany,
by England, and by France? and some of these Manuals have been adopted by
smaller Powers. But they were all greatly affected by the recommendations
of the Conference of Brussels; and in reality it may be said that wherever
there was anything like an approach to unanimity in the decisions and votes
of the Conference, it is adopted in this somewhat 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 official draftsman of the British
Government, is one of the best. Visibly the writer has taken all that he
could take from the humaner doctrines of the publicists, more particularly
from Vattel, but he never pretends to lay down authoritatively the law, which
he nevertheless declares in such a form that it is now possible for a student
of law to read it and to gain from it a very vivid notion of what a land
war in which England was engaged would be like if unhappily it occurred.
I will 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 fit to allow it to be published,
and therefore I am afraid it cannot be procured. It begins with a statement
of general principles.




'War, properly so called, is an armed contest between independent nations,
and can only be made by the sovereign power of the State. In this country
a formal announcement of war is made by a proclamation issued by her Majesty
and posted in the City of London. The first consequence of this existence
of a state of war between two nations is, that every subject of the one nation
becomes in the eye of the law an enemy to every subject of the other nation;
for as every subject is politically a party to the act of his own Government,
a war between the Governments of two nations is a war between all the individuals
of each nation. This principle carried to its extreme limits would authorise
the detention, 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 the confiscation of their goods. The exercise, however, of such
a right is contrary to the practice of modern warfare, and the conduct of
Napoleon cannot be justified, 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 them in prison, where they remained
till the peace of 1814. The usage with respect to goods is to allow the owners
to dispose of them, or leave them to be claimed by the owners on the restoration
of peace. The expulsion of subjects of the enemy from the territory of the
opposing state is justifiable, and may be exercised or not according to circumstances.
During the Crimean war Russians were allowed to reside quietly both in England
and France. In the Franco-German war of 1870 hostile strangers revere required
to quit the soil of France within a few days after they had received notice
to quit. On the other hand, war is not a relation of man to man, but of state
to state, and in itself implies no private hostility between the individuals
by whom it is carried on. They are enemies only in their character of soldiers,
and not as men. The object of war, politically speaking, is the redress by
force of a national injury. The object of war in a military point of view
is to procure the complete submission of the enemy at the earliest possible
period with the least possible expenditure of men and money.' 'Wars,' says
Lord Bacon, 'are no massacres and confusions, but they are the highest trial
of right, when princes and states, that acknowledge no superior on earth,
shall put themselves upon the justice of God for the deciding of their controversies
by such success as it shall please Him to give to either side.'




Going back upon this list of general principles, I must call your attention
to the contrast between the statement that the first consequence of the existence
of a state of war between two nations is that every subject of the one becomes
in the eye of the law an enemy to every subject of the other nation, and
the proposition that war is not a relation of man to man, but of state to
state, and of itself implies no private hostility between the individuals
by whom it is carried on, that they are enemies only in their character of
soldiers, and not as men. Several critics in European countries have remarked
on this, that the two propositions do not fall in with one another; that
the first of them would authorise the killing of women and children, whereas
the second reduces war to a contest between professional soldiers. I think
there is some justice 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 it at the period
of Greek classical antiquity, while the second proposition represents a new
theory to which the world has generally advanced. Many passages which meet
us in Thucydides show that in point of fact in the view of the Greeks war
must have been thought (if anybody theorised about it) to be waged between
the whole of the subjects of one state and the whole of the subjects of another.
There is a passage that recurs frequently, that they killed the men, and
the women and children they reduced to slavery. The women and children were
in fact considered, as well as the men, to be in a state of enmity to the
other belligerent state. I remark here, what many have remarked as well,
that one consequence of the decay and abolition of slavery was an increase
of bloodshed. Women and children and occasionally grown men had a value of
their own which supplied a motive for keeping them alive, and 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
carried on among civilised and relatively humane enemies. The writer says:
'The poisoning of water or food is a mode of warfare absolutely forbidden;
but the turning off the supply by stopping convoys of food to the enemy is
one of the usual methods of reducing them to submission. The use of poisoned
weapons and of weapons calculated to produce unnecessary pain or misery is
prohibited, on the ground that, as the object of war is confined to disabling
the enemy, the infliction of any injury beyond that which is required to
produce disability is needless cruelty.'




As to the poisoning of water and food, the best explanation of its prohibition
is that it seems to have existed from very earliest times. It is quite certain
that both Greeks and Romans thought that the poisoning of water and food
was worthy only of barbarians. What was the origin of this feeling? has been
asked by writers of modern days. It may have been that the poisoning of water
and food was thought a peculiarly pailful mode of inflicting death. The only
poison of great efficacy which seems to have been known to antiquity, and
which indeed was the base of the subtle poisons employed in the Middle Ages
by the Italians, was arsenic, which no doubt causes death coupled with the
extremest pain. Or it may have been the idea that poison was not fair fighting
-- and this shows itself as a very strong feeling in very ancient days --
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 of war has been attempted, and with as much success as it was possible
for it to command. By the Declaration of St. Petersburg, proposed by the
Emperor Alexander II and signed in 1868 by 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 -- a little
more than fourteen ounces -- charged with fulminating or inflammable matter.
I have heard that this provision in the Declaration of St. Petersburg has
no longer its humane effect in consequence of the progress of science, which,
I am sorry to say, has often had the effect of defeating attempts to increase
the area of humanity. It is alleged that the conical bullets which are universal
in modern armament do in fact cause pain as severe and wounds as incurable
as ever did the explosive bullets which were just coming in about the year
1868. I am myself incompetent to meet the objection, but at all events we
must mark that the Declaration of 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 which give more pain than is necessary for that comparatively humane
object.




A further universally accepted rule is as follows: 'Assassination is against
the customs of war. Assassination is the murder by treachery of individuals
of the hostile forces. The essence of the crime is treachery, as a surprise
is always allowable, and a small force may penetrate into the enemy's camp,
despatch the 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. It is the duty of the enemy
to be prepared against a 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 horror immediately after
the Reformation. No doubt it was the murder of William of Orange, more than
suspected of having been prompted by the Spaniards, which brought about the
fierce denunciations of which it is the subject. There will always, of course,
be some danger of this crime being resorted to when a war, as is sometimes
the case, appears to depend entirely on the life of one individual -- a great
statesman or a great general. That was the position of William of Orange,
in the opinion of all his Catholic enemies. But it has often been noted that
a new feeling had arisen in the interval between the wars of the Reformation
and the progress of the greatest war in which this country has ever been
engaged. Many writers quote with the strongest approval the action of Mr.
Fox when Foreign Secretary. A promising scheme for the murder of the great
Napoleon was communicated to him, and he at once made it known in Paris 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 little decayed, that I think with the writer of the Manual we may safely
lay down that assassination is against the customs of war.




He proceeds: 'With the exception of the means above stated to be prohibited,
any instruments of destruction, whether open or concealed, partial or widespread
in their effects, shells of any weight, torpedoes, mines, and the like, may
legitimately be employed against any enemy; and seeing that the use is legitimate,
there is no reason why the officers or soldiers employing them should be
refused quarter or be treated in a worse manner than other combatants. A
humane commander will, no doubt, so far as the exigencies of war admit, endeavour
to provide that the effect of the explosion of a mine or torpedo should extend
to combatants only, but practically no rule can be laid down on the subject.
The general principle is, that in the mode of carrying on war no greater
harm shall be done to the enemy than necessity requires for the purpose of
bringing him to terms. This principle 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 without weakening his strength
or tending to procure his submission.'




I have further to remark on these portions of the Manuals before us, that
one of the most curious passages of the history of armament is the strong
detestation which certain inventions of warlike implements have in all centuries
provoked, and the repeated attempts to throw them out of use by denying quarter
to the soldiers who use them. The most unpopular and detested of weapons
was once the crossbow, which was really a very ingenious scientific invention.
The crossbow had an anathema put on it, in 1139, by the Lateran Council,
which anathematized artem illam mortiferam et Leo odibilem. The anathema
was not without effect. Many princes ceased to give the crossbow to their
soldiers, and it is said that our Richard I. revived its use with the result
that his death by a crossbow bolt was regarded by a great part of Europe
as a judgment. It seems quite certain that the condemnation of the weapon
by the Lateran Council had much to do with the continued English employment
of the older weapon, the longbow, and thus to the English successes in the
wars with France. But both crossbow and longbow were before long driven out
of employment by the musket, which is in reality a smaller and much improved
form of the cannon that at an earlier date were used against fortified walls.
During two or three centuries all musketeers were most severely, and as we
should now think most unjustly, treated. The Chevalier Bayard thanked God
in his last days that he had ordered all musketeers who fell into his hands
to be slain without mercy. He states expressly that he held the introduction
of firearms to be an unfair innovation on the rules of lawful war. Red-hot
shot was also at first objected to, but it was long doubtful whether infantry
soldiers carrying the musket were entitled to quarter. Marshal Mont Luc,
who has left Memoirs behind him, expressly declares that it was the usage
of his day that no musketeer should be spared.




The bayonet also has a curious history. No doubt it must be connected
by origin in some way with the town of Bayonne, but the stories ordinarily
told about its invention and early use seem to be merely fables. No invention
added more to the destructiveness of war, as the bayonet turns the musket
into a weapon which is at once a firearm and a lance. The remarkable thing
about it is, that though known it remained for so long unused. It was Frederick
the Great who is said first to have used it generally or even universally
among his soldiers. The probability is that the fear of exposing infantry
to deprivation of quarter if taken prisoners caused this hesitation in using
it. In our own army we have an example of the feeling which the old usage
of war on the subject of certain weapons created, in the green uniform of
the Rifle Brigade. It seems to have been long doubted whether foot soldiers
armed with the early form of rifle would have their lives granted to them
if they were taken prisoners; and the green uniform, first used among the
olive foliage of Spain and Portugal, was supposed, it is now said untruly,
to give a greater protection than clothes of any other colour at a longer
distance.




Looking back on this long-continued state of feeling on the subjects of
new and destructive inventions, one may perhaps wonder that mines and torpedoes,
and particularly the torpedo of our day, have not met with harsher feeling.
But the reason why no such attempts as were formerly tried to drive out of
use especial weapons are likely hereafter to be seen, is that, in the first
place, any art, and especially an art of destruction, is in our day likely
to see rapid improvements. We know of no limit to the power of destroying
human life; and when the extension of the area of this power by a professional
class has once set in, it is impossible for us to lay down to what lengths
it may go or over what time it may extend. The invention proceeds so rapidly
that a peculiarly objectionable form of it can rarely be noted and specified.
On the other hand, it is a more satisfactory reflection that wars have on
the whole become less frequent, and they have also become shorter. Hence
the opportunities of 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 much of our attention. I may remark that when it was first invented
the torpedo was received with downright execration. It first made its appearance
in the war between the revolted colonies, now forming the United States,
and the mother country, and it was then known as the 'American Turtle.' Many
attempts to obtain an improved form of it were made during the war between
England and France, when Napoleon and his armies were hanging on the coast.
The principle of using clockwork had already been invented, but the peace
of 1814 put an end for the time to that method of invention, and it was long
before the world heard again of the catamaran, as the torpedo was next called.




The epochs in the period of humanitarian progress and voluntary codification
which deserve to be identified with the name of the Emperor Alexander II
of Russia are: the Convention of Geneva as to wounded, acceded to by all
the European Powers in the course of the years 1864, 1865, and 1866; the
Declaration of St. Petersburg in 1868; and the Conference at Brussels, which
filled the greater part of the year 1874. I refer you for the results of
both to Halleck's excellent book.




LECTURE VIII.




THE MODERN LAWS OF WAR.




In my last lecture I explained the detestation which newly-invented instruments
of war sometimes occasioned in olden days, and of the severity with which
soldiers who employed them were sometimes treated. The Manual for the use
of officers in the field, on which I am basing these lectures, states the
general rule on the subject of new warlike inventions in the following terms:




'With the exception of the means above stated to be prohibited. any instruments
of destruction, whether open or concealed, partial or widespread in their
effects, shells of any weight, torpedoes, mines, and the like, may legitimately
be employed against an enemy; and seeing that the use is legitimate, there
is no reason why the officers or soldiers 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 certain weight. It is added that 'a
humane commander will, so far as the exigencies 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 which mines of an extent and destructiveness far
exceeding the immediate object were used, was one which attracted but little
notice in this country owing to the distance of the locality at; which the
explosion took place. It happened, however, that in the course of the advance
of the Russian armies through the Tartar countries to the frontier of Afghanistan
a well-known Russian 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 clay. It would have taken much time, and cost many lives, to attack
it 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 at once destroyed. The remainder of the tribe received
very severe treatment from the successful besiegers, and but a small portion
escaped. It is sad to think that this example of warlike severity was set
by the general of the Power which, it would be only just to admit, has done
most to mitigate the cruelties of war. Skobeleff defended himself on the
ground that what he had done was true humanity rather than severity, and
that in no other way could a tribe which was not only formidable in war,
but had done much to prevent the even temporary establishment of peace in
those countries, be reduced. But, no doubt, in all operations of war which
are conducted under the eyes of civilised men, who watch them through the
press and the telegraph, the practice is stated in these Manuals, that 'a
humane commander will, so far as 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,' it is cautiously added, 'no rule can
be laid down on the subject.' The general principle is -- and this is the
conclusion of all these writers -- that in the mode of carrying on the war
no greater harm shall be done to the enemy than necessity requires for the
purpose of bringing him to terms. This principle 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 without weakening his
strength or tending to produce his submission.




An interesting question for us to ask ourselves is, whether in the future
history of warfare there is likely to be any such proscription of weapons
through sheer dislike or horror as was common in the Middle Ages. I am myself
not convinced but that hereafter there may be a very serious movement in
the world on the subject of some parts of the newly-invented armament. Let
us just take into our consideration two new inventions, which have shown
themselves capable of causing terrific destruction -- two new implements
of naval warfare, the Ram and the Torpedo. Neither has been extensively tried
at present -- one hardly at all. At the battle of Lissa in the Adriatic,
on the coast of North America during the War of Secession, and also on the
western coast of South America, the ram has been tried, and has proved to
be an instrument whose effects can hardly be measured. Ships have been sunk
in a moment or two by its use. Of the use of the torpedo, however, we have
hardly any example. Among military and naval men there is still great controversy
as to its effectiveness. Torpedoes during the Russo-Turkish war were laid
down in the mouths of the Danube in great quantities, but the Russians had
no difficulty in removing them without injury to themselves; and all over
the World it is still a question whether the defence or the attack, as these
writers put it, is the stronger in their case. In this country, I think,
which is confident of the possession of the most formidable forms of this
implement, there is at present considerable belief in its effectiveness in
war; but in France, on the other hand, the opinion on the whole tends in
the other direction. French naval writers maintain emphatically that, as
yet, it has not been proved that the torpedo is a weapon which can be used
on a large scale with safety by a naval combatant; but these French writers
have raised a question which is extremely interesting, to us with regard
to the discussion which I am just closing. 'You must remember,' says one
of them, a celebrated French admiral, 'that a torpedo is used under water
and in the dark. Now, are you quite sure that you will always aim your attack
against the ship which you intend to destroy? Suppose that the commander
of a torpedo fleet makes his way to a force of ships lying off a particular
coast, and one of his torpedoes is successfully fixed to the vulnerable parts
of one of them. The electric spark is applied, and the ship and everybody
on board it is blown into the air or sent into the depths of the sea! Supposing,
however, immediately afterwards it is discovered that the ship which has
been destroyed is a neutral, perhaps one of the finest vessels of a friendly
Power! Do not you think that there would be a thrill of horror through  the
civilized world, and are you sure teat a combination of civilised nations
will not be formed which will condemn the torpedo to the same proscription,
and perhaps by the same means, as far more merciful weapons were condemned
in the Middle Ages?' For my part, I think this reasoning exceedingly strong,
and I am not yet convinced that warlike invention may not reach some point
at which the natural feelings of humanity will cause it to be arrested.




I pass now briefly to a portion of these Manuals which in spirit is a
good deal connected with that which I am placing before you. It is the chapter
which they contain on 'Spies and Stratagems.' A spy, they all say, in a military
sense is a person who is found in a district occupied by the enemy collecting
secretly, and in disguise, information respecting his condition and designs,
with a view of communicating such information to the opposing force. Secrecy
and disguise are the essential characteristics of a spy in the military sense.
An officer in uniform, however nearly he approaches to the enemy, or however
closely he observes his motions, is not a spy, and if taken must be treated
as a prisoner of war. Spies when taken are punishable with death, either
by hanging or shooting. The services of spies must be secured by rewards,
as no one can be called upon to undertake the office of spy as a matter of
duty or against his will. A commander may, course, avail himself of information
if given by a traitor. How far he is justified in endeavouring to suborn
treachery, is a more difficult question. Such transactions are spill by Vattel
to be not uncommon, though never boasted of by those who have entered on
them. An officer may feign to be a traitor for the purpose of ensnaring an
enemy who attempts to corrupt his fidelity; but if he voluntarily makes overtures
to the enemy under presence of being a traitor, and then deceives the enemy
with false information, his conduct is dishonourable, and contrary to the
customs of war. Prisoners of war cannot be punished or ill treated for refusing
to disclose the number or condition of the body to which they belong. False
attacks, the dissemination of false information or pass-words when not perfidious,
are permissible by the customs of war. Indeed, to take a town by surprise,
or to turn a position by a stratagem, is more glorious nowadays to a General
than to effect the object by force, in proportion as to win a great battle
with little slaughter is more creditable to the skill of the General than
to gain a bloody victory. It must, however, be observed that no deceit is
allowable where no express or implied engagement exists that the truth should
be acted or spoken. To violate such an engagement is perfidy, and contrary
alike to the customs of war and the dictates of honour. For example, it is
a gross breach of faith and an outrage against the customs of war to hoist
a Hospital flag on buildings not appropriated to the wounded, or to use a
place protected by a Hospital flag for any other purpose than a Hospital.




The opinion here expressed, that successes gained through a spy are more
creditable to the skill of a commander than successes in drawn battles, was
very largely held in the last century, and military writers of great celebrity
have left accounts of the successful use which they made of spies and their
services. Frederick the Great of Prussia, in November 1760, published Military
Instructions for the use of his Generals, which were based on a wide practical
knowledge of the matter. He classed spies as 'ordinary spies,' 'double spies,'
'spies of distinction,' and 'spies by compulsion.' By 'double spies' he meant
spies who also pretended to be in the service of the side they betrayed;
by ' spies of distinction' he meant officers of Hussars whose services he
found useful under the peculiar circumstances of an Austrian campaign. When
he could not procure himself spies among the Austrians owing to the careful
guard which their light troops kept around their camp, the idea occurred
to him, and he acted on it with success, of utilizing the suspension of arms
that was customary after a skirmish between Hussars, to make those officers
the means of conducting epistolary correspondence with the officers on the
other aide. 'Spies of compulsion' he explained in this way. When you wish
to convey false information to an enemy, you take a trustworthy soldier and
compel him to pass to the enemy's camp to represent there all 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 information
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 servant
or coachman, who understands the enemy's language. Force the former to take
the latter with him to the enemy's camp to complain of injuries sustained,
threatening him that if he fails to bring the man back with him after having
stayed long enough for the desired object his wife and children shall be
hanged and his house burnt. 'I was myself,' he adds, 'constrained to have
recourse to this method, and it succeeded.' The humanity and good faith of
Frederick the Great have never been celebrated; but how much of these principles
survive to our own times we can gather from Lord Wolseley's 'Soldier's Pocket
Book.' 'The best way,' he suggests, 'to send out a spy is to send a peasant
with a letter written on very thin paper, which maybe rolled up so tightly
as to be portable in a quill an inch and a half long, and this precious quill
may be hidden in the hair or beard, or in a hollow at then end of a walking
stick. It is also a good plan to write secret correspondence in lemon juice
across a newspaper or the leaves of the New Testament. It is then safe against
discovery, and will become legible when held before a fire or near a red-hot
iron. As a nation,' adds Lord Wolseley, 'we are brought up to feel it a disgrace
even to succeed by falsehood. The word "spy" conveys something
as repulsive as "slave." We keep hammering along with the conviction
that "honesty is the best policy," and that truth always wins in
the long run. These sentiments do well for a copy-book, but a man who acts
upon them had better sheath his sword for ever.'




One of the most important subjects of which the new Manuals treat is the
person of the enemy. The enemy, it is laid down, consists of armed forces
and of the unarmed population. The first principle of war is that armed forces
as long as they resist may be destroyed by any legitimate means. The right
of killing an armed man exists only so long as he resists. As soon as he
submits, he is entitled to be treated as a prisoner of war. Quarter should
never be refused to men who surrender, unless they have been guilty of some
such violation of the customs of war as would of itself expose them to the
penalty of death; and when so guilty they should, whenever practicable, be
taken prisoners and put upon their trial before being executed, as it is
seldom justifiable in a combatant to take the law into his own hands against
an unresisting enemy. Most of you, I imagine, are aware that this principle,
stated in this broad way, is quite modern. Most of us have learnt, when children,
touching stories of the refusal of quarter to garrisons that had surrendered
in our avers of succession with France. Many of us remember Froissart's story
of six citizens of Calais whom Edward III was with difficulty restrained
from hanging for the obstinate resistance they had made to the siege of their
town. In point of fact, during this war, and the later war of Henry V against
France, even when the successful General was disposed to be merciful, he
generally reserved a certain number of the besieged, though a small number,
for execution. When Rouen surrendered to Henry V the latter stipulated for
three of the citizens to be left at his disposal, of whom two purchased their
lives, but the third was beheaded. When the same king, the year following,
was besieging the castle of Montereau, he sent twenty prisoners to treat
with the Governor for a surrender; but when the Governor refused to treat
even to save their lives, and when, after taking leave of their wives and
families, they were escorted back to the English army, the King of England
ordered erected, and had them all hanged in sight of those within the castle.
When Meaux surrendered to the same king, it was stipulated that six of the
bravest defenders should be delivered up to justice, four of whom were beheaded
at Paris, and its commander at once hanged on a tree outside the walls of
the city. No doubt this severity was due in a great degree to the hard measure
which in those days was always dealt out to a force which had resisted an
attack when there was no chance of success. And this is one ground on which
the savage practices which accompanied storms and sieges were explained;
but it is always to be recollected that in these French and English wars
there was another cause of extreme truculence. In the minds of those who
waged them they were wars of succession, and questions therefore of the faith
and submission due to a sovereign mixed themselves up with the ordinary considerations
of the field. On reading the accounts of them carefully, the special severities
of our Edward III and our Henry V may be seen to be constantly explained
by the successful king's belief that he was dealing with traitors who had
surrendered themselves; and in fact it appears to have been the conviction
that the population attacked owed legally fealty to the General of the army
attacking them, which led specially to the cruelties of these wars, just
as a conviction of the lawfulness of the severest punishment for heresy and
infidelity led to the savageness of the wars of religion. There is no doubt
that at present the Manuals state the practice correctly, that quarter ought
never to be refused to men who surrender, unless they have been guilty of
some such violation of the customs of war as would of itself expose them
to the penalty of death, and when so guilty they should whenever practicable
be taken prisoners and put upon their trial before they are executed, for
it is seldom justifiable for a combatant to take the law into his own hands
against an unresisting enemy. The point was one which was largely discussed
at the Conference of Brussels, and it 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. 'The wounded must not only be spared, but humanity commands
that if they fall 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 by actually using
arms, in which case they may 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,'




The first and last parts of this paragraph give the results of the Geneva
Convention, the furthest point which has at present been reached by humane
doctrine in the actual conduct of war. This Convention was signed on August
22, 1864. It states that it was drawn up for the amelioration of the condition
of the wounded of armies in the field. I will read you a few of its principal
provisions:




'Ambulance end military Hospitals shall be  acknowledged to be neutral,
and as such shall be protected and respected by belligerents so long as any
sick or wounded may be therein. Such neutrality shall cease if the ambulances
or Hospitals should be held by a military force. 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.' The persons designated in the preceding
article may even after occupation by the enemy continue to fulfil their duty
in the Hospital or ambulance which they serve, or may withdraw in order to
rejoin the corps to which they belong. Under such circumstances, when 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 attached to such Hospitals cannot
on their withdraw. ing carry away any articles but their own private property;
and under the circumstances an ambulance shall, on the contrary, retain its
equipment. Inhabitants of the country who may bring help to the wounded shall
be respected and remain free. The Generals of the belligerent Powers shall
make it their care to inform the inhabitants of the appeal addressed to their
humanity, and of the neutrality which shad be the consequence of it. Any
wounded when entertained and taken care of in a house shall be considered
as a protection thereto. Any inhabitant who shall have entertained wounded
men in his house shall be exempted from the quartering of troops, as well
as from a part of the contributions of war which may be imposed. Wounded
or sick soldiers shall be entertained and taken care of, to whatever nation
they may belong. Commanders-in-chief shall have the power to delver immediately
to the outposts of the enemy soldiers who have been wounded in an engagement,
when circumstances permit it to be done, and with the consent of both parties.
Those who are recognised, after their wounds are healed, as incapable of
serving, shad be sent back to their country. The others may also be sent
back on condition of not again bearing arms during the continuance of the
war. Evacuations, together with the persons under whose directions they take
place, shall be protected by absolute neutrality. A distinctive and uniform
dag shall be adopted for Hospitals, ambulances, and evacuations. It must
on every occasion be accompanied by the neutral flag. A badge for the arm
shall also be allowed for individuals neutralized; but the delivery thereof
shall be left to the neutral authority. The flag and the badge 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, nurses, and military servants, with the greatest
self-sacrifice and with the greatest enthusiasm. Nothing, I hope, will ever
occur to provoke retrograde measures with regard to so great a reform. At
the same time there are some drawbacks, from a military point of view, to
the application of the provisions of the Geneva Convention, on which I will
say a few words in conclusion. I am told on very excellent authority that
it is very difficult to persuade military commanders in the field of the
perfect fairness and good faith 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 themselves, that the Hospital has been put in 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, I
am persuaded, a great deal of delusion about these suspicions, delusion unhappily
of the nature which is constantly arising in the minds of men actually engaged
in a deadly struggle. All that we have a right to say here is, that the most
abundant good faith should be. used in the localization and use of these
beneficent mitigations of the hardships of war, and that no punishment would
be too severe for an officer, no matter his rank, who knowingly used them
for the purpose of inflicting warlike injury on an opponent.




 LECTURE IX.




RULES AS TO PRISONERS AND QUARTER.




At the close of my last lecture I spoke of the Geneva Convention of 1864
as the farthest, as well as the most recent, point of advance reached by
a concert of nations in the attempt to mitigate the inevitable sufferings
of war. International Law, as now understood, contains a number of rules
of greater antiquity having the same object in view. The status of the prisoner
of war is historically descended from the status of the slave. He represents
the class which, as the Romans put it, had lost liberty, country, and family;
by capture he had forfeited to the captor all the rights which he possessed,
and was bound to labour at the order of the captor, and anybody who succeeded
the captor in title, to the end of his life. But as slavery fell into disrepute
and decay chiefly owing to the influence of the Christian Church, a number
of rules gradually grew up for the purpose of limiting the power of the captor
over the prisoner of war. They may be described as intended to prevent his
being treated actually as a slave, in the form which they have now taken.
In the Manuals which several of the great civilised states have prepared
for their officers in the field, it is declared that the object of detaining
prisoners of war is to prevent their taking part again in the operations
of war. So much restraint, therefore, and no more, should be applied as is
sufficient for that purpose. They cannot be compelled to aid their captors
in military operations, but they may be employed in any other manner suitable
to their condition. The money which they earn by work should be placed to
their credit after deducting the expenses of subsistence. A prisoner of war
who has committed an offense 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 obligation to support prisoners of war necessarily lies with
the captor, and he should maintain them in a manner suitable to their condition.
A prisoner of war, unless he has given a pledge or promise not to escape,
is justified in making the attempt; but if retaken he is 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
the other hand, a rising amongst prisoners of war with a view to effect a
general escape may 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 justify the use of means necessary to that end. Stricter means
of confinement may be used after an unsuccessful attempt to escape. But a
prisoner of war cannot be ill 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 obligatious imposed by International
Law or by usage on a captor holding a captive in duress. At the close of
the War of Secession between the Northern and Southern sections of the United
States, the Northern armies obtained possession of the person of a Confederate
officer who had been in charge of the prisoners taken by the Confederates
during the vicar. He had been accused of barbarous cruelties towards his
enemies who were captives, and the Northern army, after a trial which on
the other side was charged with every kind of carelessness and irregularity,
put him to death by hanging. The English Government was, at the beginning
of this century and the end of the last, constantly accused of barbarity
towards the French prisoners who were detained in the hulks at Portsmouth
and other ports; and probably to this day it is a commonplace amongst the
French that this is one of the greatest crimes which the English have perpetrated
against themselves. England was in reality in great difficulties in providing
places of confinement for the prisoners through the want or scarcity of such
places in this country, and in the last part of the struggle the Emperor
Napoleon I. is now known to have been indisposed to facilitate exchange of
prisoners between the two countries. Gathering his vast armies not only from
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 anything that would increase
the extent of his own overgrown forces. Still it is probable that both in
the War of Secession, and in the French and English war at the beginning
of the century, too little tenderness was shown to prisoners; and I hope
that with the emphatic expressions which are contained in the new Manuals,
and which will henceforward give the law in the field, there will be no reason
in the future to make a grievance of the treatment of prisoners of war. The
only complete mitigation of the misfortune of captivity is, of course, to
be found either in the escape of the prisoner, on which I have said a few
words, or else in some rules which should authorise his discharge from the
captive condition. In all probability these methods of releasing prisoners
are all descended from the system of ransom now extinct. One result of the
theory that the captive had become a slave was, naturally, that if he were
able he might pay to his captor such a price as would induce him to release
what had become his own property. Very large Bums of money seem to have been
exacted in the Middle Ages as the ransom of a mailed knight when taken prisoner.
He was usually a man of birth and of wealth; but as he lost his relative
importance, and as the most effective part of armies came to consist of the
men-at-arms, and afterwards of mercenary troops carrying a new class of weapons,
a number of rules present themselves which are intended to facilitate the
voluntary discharge of the bulk of the prisoners. After the battle of Poitiers
it is expressly stated that there were so many prisoners taken as to make
it necessary to discharge the knights, debiting them with the amount of their
ransom and not at once exacting it; and that the rest of the captives, 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 is usually incurred by
the refusal to admit it. At the same time, while exchange, says the text
of the Manuals which I have been citing, is the ordinary mode of releasing
prisoners of war, a nation is not guilty of any actual breach of the customs
of war in refusing to exchange its prisoners, and may detain them to the
close of the war. Exchanges of prisoners take place number for number, rank
for rank, wounded for wounded, 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 may be substituted
as an equivalent for one of superior rank as may be agreed upon, but the
agreement requires the sanction of the Government or of the commander of
the army in the field. A prisoner of war is in honour bound truly to state
to the captor his rank, and he is 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 to observe certain conditions imposed by the captor. A prisoner of war
so pledging his word is said to give his parole, and if his parole be accepted
by the captor, to be paroled. The usual pledge given with a parole is not
to serve during the existing war. This pledge only extends to active service
against the enemy. It does not refer to internal service, such as recruiting
or drilling recruits, quelling civil commotions, fighting against belligerents
unconnected with the paroling belligerents, or the civil or the diplomatic
service on which a paroled person may be employed. It is laid down by the
legal authorities that paroling is a voluntary contract entered into between
the parties. The captor is not obliged to over to parole a prisoner of war,
and a prisoner of war cannot be compelled to give his parole, but may remain
a captive. It is a rule that a list of the names of officers and men paroled
should always be made in writing and be carefully kept. It is further a rule
that a prisoner of war has no authority to pledge himself never again to
serve against a particular enemy. The pledge must be confined to a limited
time, as he cannot divest himself wholly of the duty which he owes to his
sovereign and country. The right of a prisoner of war to give his parole
may be still further limited by the laws of his own country. If a prisoner
make an engagement which is not approved of by his own Government, he is
bound to return and surrender himself to the enemy. As a general rule the
commanding officer has an implied authority to give his parole on behalf
of himself and the officers and men under his command; an inferior officer
ought not to give parole either for himself or his men without the authority
of a superior officer, if such an officer be within reach. And according
to the English practice a state has no power to force its subjects to act
contrary to their parole; but how far it is authorised to refuse such paroles,
and to force its paroled subjects back into the enemy's lines, would seem
to be in principle doubtful. As a general rule it would appear advisable
to admit of the validity of the paroles, but to punish the individuals who
have given them contrary to the laws of their country. A recaptured prisoner
who has violated his parole may be punished with death; but the modern practice
usually is to abstain from the infliction of death, except in an aggravated
case, and to substitute 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,
are, relatively to the whole history of modern war, of ancient origin.




There is 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 are among the most modern parts of the International system. They
constitute a subject of great interest but of very great difficulty; 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 a whole, of the authority which they otherwise might have
possessed. How the questions involved arose I may perhaps best express in
the following way: In all wars waged by armies of the modern type, and especially
in the war between France and Germany, there arrives a point at which one
side or the other may legitimately think that the campaign has ended favourably
for him. In the Franco-German war we may say that this point was reached
as soon as the German armies had invested Paris. But some of you can remember,
and others may have read, what followed. Leon Gambetta, a principal member
of the so-called Government of National Defence, escaped from Paris in a
balloon and established a separate or branch Government at Tours. From that
point a new campaign of a new nature may be said to have begun. Large forces
were brought together by Gambetta, consisting chiefly of fragments of other
armies which had been stationed in particular localities or had marched westwards
after defeat from the Germans, and, besides these, of a great part of the
hitherto unarmed population of the country called to his standard under what
was called a levee en masse. This part of the war was conducted with some
success on the part of the French, but it at once gave rise to a large number
of new 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. These customs require that
an enemy should be able to distinguish between the armed forces and the general
population of a country, in order that he may 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 recognized Government having power
to put an end to hostilities, in order that the enemy may know the authority
to which he may resort when desirous of making peace. In ordinary circumstances,
therefore, persons committing acts of hostility, who do not belong to an
organised body authorized by some recognized Government, and who do not wear
a military uniform or some conspicuous dress or mark showing them to be part
of an organized military body, incur the risk of being treated as marauders
and punished accordingly. So far the delegates at Brussels may be said to
have been reasonably agreed; but then the qualifications which follow in
the Manuals which the various Governments have now circulated show how very
far the rules laid down were from being unanimously accepted or agreed to
be universal. They go on to say: 'No rule, however, can be laid down which
is not subject to great exceptions. For example, the customs of war do not
justify a 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
him without uniform or distinguishing marks, as all the inhabitants of a
town may be considered to be legitimate enemies until the town is taken.
Similarly a population which rises en masse in a country not already occupied
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 organized bodies. Again, when the
regular Government of a country has been overthrown by civil tumult, the
absence of the authority of a recognized Government to make peace would not
of itself disentitle organized bodies of men, clearly distinguishable as
foes and fighting in conformity with the customs of war against a foreign
enemy, to be treated on capture as prisoners of war. Every case must be judged
by its own circumstances, having regard to the principle that persons other
than regular troops in uniform, whose dress shows their character, committing
acts of hostility against an enemy, must, if they expect when captured to
be treated as prisoners of war, be organised in such a manner or fight under
such circumstances 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 complete agreement as to a new set
of rules on this vexed subject proved insurmountable at the Brussels Conference;
and in point of fact the debates showed that at the bottom of the discussion
the matters at stale were the differences in the interests of states who
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
scale. The following remarks are to be found in the despatch in which the
English Secretary of State, Lord Derby, summed up the results of this most
remarkable controversy. He says at the fifth page of his despatch, published
in 1876: 'The second chapter of the report of the Conference relating to
combatants and non-combatants showed an equal difference of opinion, smoothed
over, in the long run, by a compromise. The Swiss delegate, in his observations
on the article requiring the use of a distinctive badge, recognizable at
a distance, remarked that a country might rise en masse, as Switzerland had
formerly done, and defend itself without organization and under no command.
The patriotic feeling which led to such a rising could not be kept down;
and although these patriots, if defeated, might not be treated 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 if the
plan laid down by the German delegate was to be sanctioned, on the adoption
of those articles which relate to belligerents as drawn up in the project,
it would have the effect of diminishing the defensive force of the Netherlands,
or render universal and obligatory service necessary -- a military revolution
to which the public opinion of the Netherlands was opposed. He therefore
reserved more than ever the opinion of his Government. The Belgian delegate
also made a declaration of reservation. In the opinion of the 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 the occupying army. He admitted
that in time of war the occupier might occasionally be forced to treat with
severity a population who might rise, and that from its weakness the population
might be forced to submit; but he repudiated the right of any Government
to require the delivering over to the justice of the enemy of those men who
from patriotic motives and at their own risk might expose themselves to the
dangers consequent upon a rising. The Swiss delegate, who had previously
pointed out that the Conference was now engaged upon the cardinal points
of the whole project, openly declared that two questions, diametrically opposed
to each other, were before the Commission: the interest, on the one hand,
of great armies in an enemy's country, which demands security for their communication
and for their rayon of occupation; and, on the other, the principles of war
and the interests of the invaded, which cannot admit that a population should
be handed over as criminals to justice for having taken up arms against the
enemy. The reconciliation of these conflicting interests was at this period
impossible in the case of a levée en masse in the occupied country,
and in the face of the opposite opinions expressed, until a provisional modification
of them was accepted by the meeting, passing over this point, on which the
greatest disagreement had been shown.




These difficulties, which prevented the project of the Brussels Conference
from becoming part of the International Law of civilization, 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 not a time immediately
or shortly succeeding a great crisis. Hereafter I shall point out to you
some conclusions to which this truth seems to me to point.




There is another part, however, of International Law upon which, if it
be possible, it is extremely desirable to have a systematic set of rules.
It is perhaps an inevitable but certainly a frequent result of the present
want of rules, that when enemies are fighting in the same country, and one
side complains of the measures adopted by the other, there is no means of
punishing what is thought to be an infraction of rule except retaliation
or, as the technical word is, reprisals. Retaliation, we are told, is military
vengeance. It takes place where an outrage committed on one side is avenged
by the commission of a similar act on the other. For example, an unjust execution
of prisoners by the enemy may be followed by the execution of an equal number
of prisoners by their opponents. Retaliation is an extreme right of war,
and should only be resorted to in the last necessity. 'It may be well to
notice,' says the writer I am quoting, incidentally for the purpose of reprobating
it, 'the idea once prevailed that a garrison which obstinately defended a
place when it had, in the opinion of the enemy, become untenable, might be
put to the sword.' There is no doubt that during the Franco-German war reprisals
were carried to unjustifiable lengths on both sides. The French Government
has published a curious volume which reproduces all the placards which either
they or others had affixed to the walls during the contest in France. At
one point the Germans granted no quarter during an attack on a village, on
the plea that twenty-five francs-tireurs (riflemen) had hidden in a wood
near it, without any regular officer or uniform, and had shot down as many
Germans as came within range of their guns. On another of these placards
is a notice by a French officer to the Prussian commander of Châtellerault
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. 'I give you my
assurance, threat for threat, that I will not spare one of the two hundred
Prussian soldiers whom you know to be in my hands.' And indeed General Chanzy,
himself a gallant officer in high place, wrote to the Prussian commander
of Vendorne, and stated that he intended to fight without 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.






LECTURE X.




MENTIONS OF BELLIGERENTS ON LAND.




The Brussels Conference failed to solve a number of questions of modern
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 an invader. The trenchant German scheme, which was submitted to the Conference,
failed to command support, and a number of rules, which were not open to
the same objections as those which the German delegate proposed, were not
universally acceptable. But, as in the case of many other recommendations
emanating from the Conference, a large number of their proposals are found
in the Manuals of warfare which so many civilised Governments have now placed
in the hands of their officers. As regards the most important point which
had to be settled, there is a general tendency to advise that a uniform of
some kind shall be adopted by the non-military population, and that the corps
which they form shall be treated 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 troops
as exemplifying the point of a war at which this branch of law assumes a
new importance. We have now to consider the legal position of that part of
the invaded country which is under military occupation by the enemy. The
view of a country in such a position has much changed in modern tinges. Of
old the theory of the position of an invaded country was much affected by
the Roman Law. Land, like everything else, might be captured by occupancy
(occupatio) subject to what the Romans called post-liminium, a legal rule
which is generally described as embodying a legal fiction under which a citizen
who 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. Thus territory militarily occupied was regarded
as passing to the occupant subject to the ill-defined risks arising from
the return of the former sovereign. Frederick the Great, when he had invaded
a country, usually compelled the population to supply him with recruits;
and there is one instance in which the King of Denmark sold what were then
two Swedish provinces -- Bremen and Verden -- to Hanover. The inconvenience
of this condition of the law was much felt after the close of the Seven Years'
War, and the position of a country once invaded, from which the enemy has
retired, was always settled by particular treaty. Manifold as have been the
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 arising from simple conquest. The only instance of a new
province held on the mere title of conquest, and incorporated with the other
territories of the conquering country, is the Indian province long known
as Lower Burmah. The King, who still retained a part of his territories,
which he reigned over at Mandalay, refused, even though utterly defeated,
to enter into any treaty of cession, and after the second war Lower Burmah
was treated as already part of the general Indian territory.




I have said that the most critical moment in great wars of invasion is
that at which a large part of the territory is militarily occupied. There
is very much on the subject in the modern Manuals of war. The following is
a summary of the law.




An invader is said to be in military occupation of so much of a country
as is wholly abandoned by the forces of the enemy. The occupation must be
real and not nominal, and it is laid down that a 'paper' occupation is even
more objectionable in its character and effects than a 'paper' blockade On
the other hand, the occupation of part of a district from the whole of which
the enemy has retired, is necessarily an occupation of that district, as
it is impossible in any other way to occupy any considerable extent of territory.
The true test of military occupation is exclusive possession. For example,
the reduction of a fortress which dominates the surrounding country 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 advance in such a manner as to quit
their hold on the occupied territory. In the event of a military occupation
the authority of the regular Government is supplanted by that of the invading
army. The rule imposed by the invader is the law of war. It is 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.
In every case the source from which it derives its authority is the same,
namely the customs of war, and not any municipal law; and the General enforcing
the rule is responsible only to his own Government and not to the invaded
people. The rule of military occupation has relation only to the inhabitants
of the invaded country. The troops and camp followers in a foreign country
which has been occupied let us say by the English army remain under English
military law, and are in no respects amenable to the rule of military occupation.
As 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 crimes committed by the inhabitants.
The course, however, to be adopted in such a case is at the discretion of
the invader. He may abrogate any law in the country, and substitute other
rules for it. He may create special tribunals, or he may leave the native
tribunals to exercise their usual jurisdiction. The special tribunals created
by an invader for carrying into effect the rule of military occupation in
the case of individual offenders are usually military courts, framed on the
model and carrying on their proceedings after the manner of courts-martial;
but of course, technically, courts so established by an English General would
not be courts-martial within the meaning of our Army Acts. The courts would
be regulated only by the 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
down by him for securing the safety of the army. The right of inflicting
such punishment in case of necessity is undoubted; but the interest of the
invader no less than the dictates of humanity demand that inhabitants who
have been guilty of an act which is only a crime in consequence of its being
injurious to the enemy, should be treated with the greatest leniency consistent
with the safety and well-being of the invading army.




The American rules on the subject of the government of armies in the field
say; Martial law, or in other words the law of military occupation, should
be less stringent in places and countries fully occupied and fairly conquered.
Greater severity may be exercised in places or regions where actual hostilities
exist, or are expected and must be prepared for. Its most complete sway is
allowed even in the commander's own country when face to face with an enemy,
because of the absolute necessities of the case and of the paramount duty
of defending the country against invasion. To save the country is of course
paramount to all other considerations.




In conclusion, it must be borne in mind that an invader cannot, according
to the customs of war, call on the inhabitants to enlist as soldiers or to
engage actively in military operations against their own country. The theory
in its full sway is this. In a country militarily occupied all executive
and legislative power passes to the invader. It does not follow that he exercises
these powers, but theoretically they belong to him. The Duke of Wellington
made some observations in the English Parliament which are recognized as
authoritative in all the modern Manuals. 'Martial law,' he said, 'is neither
more nor less than the will of the General who commands the army; in fact,
martial law means no law at all. Therefore the General who declares martial
law and commands that it shall be carried into execution is bound to lay
down distinctly the regulations and rules according to which his will is
to be carried out. Now, I have in no country carried out martial law; that
is to say, I have not governed a large proportion of a country by my own
will. But then what did I do? I declared that the country should be governed
according to its own national law, and I carried into execution my so declared
will.' Comparing this state of the law with that from which we started, it
is evident that the ancient practice and theory of occupation have much changed.
They have not now any connection with Roman Law, nor would any one nowadays
think of borrowing the Roman Law for their rules. The modern practice rests,
in fact, upon military necessity, and is circumscribed by the military necessity.
An invading General can do certain things because, by the hypothesis, there
is no one else to do them. In England the legal rule is the same in peace
as in war. The soldiery can always be employed in our own country when sufficient
necessity can be shown for using them through the temporary or local abeyance
of civil authority.




This state of things comes to an end with the cessation of war. Wars do
not in our day linger on, as did the old wars of succession and the old wars
of religion. There is always within some moderate time a treaty of peace.
Indeed, the modern difficulty in closing a war is, sometimes, to find an
authority capable of making peace. This difficulty was much felt by the Germans
after 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 insisted that such an Assembly
should be elected.




I think it may be useful to say a few words on the treaties of peace by
which war is nowadays brought to an end. In modern times a peace is always
preceded by an armistice, and an armistice by a suspension of arms, which
is only a shorter armistice. The rule laid down by the international lawyers
is that a state of war is brought to an end by a treaty of peace or by a
general truce. A treaty of peace puts an end to the war 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 out of use. They were common enough in the Middle Ages, especially
between the Turks and their Christian enemies, because the religion of neither
party permitted the combatants to conclude a definite treaty of peace. It
has always been laid down that treaties and general truces can only be concluded
by the sovereign power of a state, and not that of any other authority. An
armistice is defined as a partial truce. The power to conclude an armistice
is essential to the fulfilment by the commanding officer of his official
duties, and therefore he is presumed to have such power delegated to him
by his sovereign without any special command. This presumption of authority
is held to be so strong that it cannot be rebutted by any act of the sovereign.
If an officer makes an armistice in disobedience to orders received from
his sovereign, he is punishable by that sovereign; but the sovereign is bound
by the armistice, inasmuch as the enemy could not be supposed to have known
of the limitation of authority imposed on the officer.




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




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




Before closing this lecture it win be useful to note the substance of
the statements made in the modern Manuals in respect to a number of terms
which are in much use in this part of military operations, but which are
very loosely employed by civilians and even by historical writers. First
as to what is called a Capitulation. A capitulation is an agreement for the
delivery of a besieged place or forces divided in the field into the hands
of the enemy. The commanders on either side are invested with popover to
agree to the terms of a capitulation, inasmuch as the possession of such
powers is necessary to the proper exercise of their functions. On the other
hand, the extent of their powers is limited by the necessity for their exercise.
In the surrender of a place the questions at issue are the immediate possession
of the place itself, and the fate of the garrison. A capitulation, therefore,
must be limited to these questions. It may declare that the garrison is to
surrender unconditionally as prisoners of war, or to be entitled to march
out with all the honours of war. It may also provide that the soldiers 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
immunity from pillage or contribution, may fairly be put into a capitulation.
A stipulation in a capitulation to the effect that the garrison should never
again bear arms against the forces of the conquering state, or that the sovereignty
of the town should change hands, would be invalid, inasmuch as powers for
such extensive purposes belong only to the sovereign power of the State,
and cannot ever be presumed to be delegated to inferior officers.




A few words will not be thrown away on Flags of Truce. Such a flag can
only be used legitimately for the purpose of entering into some arrangement
with the enemy. If adopted with a view surreptitiously to obtain information
as to the enemy's forces, it loses its character of a flag of truce and exposes
its bearer to the punishment of a spy. Great caution, however, and the most
conclusive evidence are held to be necessary before the bearer of such a
flag can be convicted as a spy. The bearer of a flag of truce, at the same
time, should not be allowed without permission to approach sufficiently near
to secure any useful information. When an army is in position, the bearer
of a flag of truce should not, without 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 it is sent should halt and cease firing. The troop to which
it is sent should, if the commander is willing to receive it, signal to that
effect and also cease firing; but it must be understood that firing during
an engagement does not necessarily cease on the appearance of a flag of truce,
and that the parties communicating with such flags cannot complain if those
who sent them should carry on the firing. When it is intended to refuse admission
to a flag of truce, the bearer should, as soon as possible, be signalled
to retire; and if he do not obey the signal, he may be fired upon.




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




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






LECTURE XI.




RIGHTS OF CAPTURE BY LAND.




Before I leave the group of subjects discussed in the more recent lectures,
it may be well to say something on a branch of the law of war by land which
tries to regulate incidents of belligerency that cause sometimes as much
suffering and very constantly more irritation than actual hostilities. This
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; but there is a great practical difference between
the two, if neutrals do not happen to be interested in the same way in wars
by land in which they have interest as in wars by sea, since there are no
prize courts to insist on regularity and moderation. The principle of capture
is that movable property, captured either on land or at sea, is acquired
by reduction into firm possession. Leaving, however, movable property for
the moment, and passing to immovable, I begin by stating that there is a
great deal on this subject in the older law books. 'A complete title to the
land of a country,' says the leading rule, 'is usually acquired by treaty
or by the entire submission or destruction of the state to which it belongs.'
Here what is meant is the sovereignty or supreme right over property sometimes
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 less, probably, all over the East. The
sovereign is the universal proprietor; but in our day the quasi-proprietary
rights which a conquered sovereign has created or respected, would in practice
be maintained by a successful invader. Such, in fact, was the case in the
recent British conquest of Burmah proper. But in the older International
Law books another kind of acquisition by capture of private property in land
seems to be chiefly contemplated. The writers appear to be thinking of the
seizure of land which is private property by the soldiers of the conquering
and invading army, much in the same way in which the provinces of the Roman
Empire are supposed to have been taken possession of by the Teutonic barbarians.
Nowadays that is a case which never practically occurs; but if it happened,
the occupant of the land would hold it subject to the Roman principle of
post-liminy. If the former owner returned he would ret vert to his old rights,
and the new owner would be ousted. A more conceivable case is one in which
an occupying civilian should sell for value a portion of the land of which
he has taken possession. Here, too, in theory the principle of post-liminy
would intervene, but the result would be that every sale of captured private
property would produce a title to it so bad that one can hardly conceive
its being effected. The modern usage is that the use of public land and public
buildings, and the rents and other profits accruing from such lands and buildings,
form part of the spoils of war. As regards private property in land, belligerents
in modern times usually abstain, so far as is consistent with the exigencies
of operations of 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 property of individuals by way of punishment for any
injury indicted 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 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 a district to punish an attack made within its limits by a body
of marauders. From the powers which a successful enemy enjoys to appropriate
land and buildings, it is to be observed that the modern usages of war except
museums, churches, and other monuments of art; and by some it is contended
that no public building can be destroyed unless used for belligerent purposes.




If we now turn back to movable property, it is held that the arms, implements
of war, and every description of movable property belonging to tile State
may be taken possession of by an invader. An exception to the right of seizure
of movables of the enemy is made, indeed, in the case of archives, historical
documents, and judicial and legal records. An invader can hold them so long
as he remains in the country and requires their use; but to take them away
with him is an act of barbarism prohibited by the customs of war, for the
retention of such documents can by no means tend to put an end to a war,
while it indicts a great and useless injury on the country to which they
belong, and specially to those countries, now numerous, which, unlike England,
have complete registration of 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 the admitted restrictions of the
rights of war, which deprive an enemy of such things only as enable him to
make resistance, and therefore can only be justified as a measure of retaliation.
Seventy years ago the question of the right of a successful enemy to carry
away with him works of art was a matter of violent controversy in this country
and in the whole of Europe, and the subject was several times debated in
the British Parliament. It is a fact very generally known that after the
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 give up to the conquering French Government the works of art that were
the glory of its chief cities. The Apollo Belvedere, the Dying Gladiator,
the Medicean Venus, the Laocoon, the Bronze Horses, were conveyed to Paris
and deposited in the Louvre, in which they remained until the overthrow of
the first French Empire. On the overthrow of that Empire, when the allies,
entering Paris for the second time, gained possession of the whole city,
they restored most of these famous masterpieces to their original owners.
The French expressed, and no doubt genuinely felt, the greatest indignation,
which was, however, manifestly treated with much scorn by the English writers
of that day, who seemed to look upon the anger of the French or Parisian
population as amounting to an absurd refusal to have a rule applied to themselves
which they had freely applied to others; but if we 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 in which they were actually accomplished.
Arguments, founded on this, were submitted to the British House of Commons,
especially by the great lawyer Romilly. It was a fact that some of these
works of art had formed part of forced military contributions, which a conqueror
may always levy, and some were given up under express conventions to which
the surrendering state had no power of resistance. In some other cases the
state to which the return was made had been absorbed in another state during
the long war with France. For example, Venice, which had surrendered some
of the most beautiful works of art in the Louvre, had now become absorbed
in the Austrian Empire. It was further argued that it was for the advantage
of civilization that these works of art should not be dispersed over a number
of small cities in Italy which were not then, all 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 carrying off of these works of art
from their old Italian homes had been a new rule of war. For example, Frederick
the Great, who more than once occupied Dresden, always spared the famous
gallery and its contents. The new rule was introduced by Napoleon Bonaparte
as conqueror of Italy, and what the allies in occupation of Paris applied
seems to have been the rule of reprisal. There was, no doubt, if we throw
the technical rule aside, a great deal to be urged on behalf of giving back
these sculptures and paintings to the Italian cities. They were valued by
them more than any mere property. Some of these cities before the war were
hardly ever visited except by persons desirous of seeing some famous work.
As I say, the one tenable argument against their restoration was the greater
convenience to the civilised world of their being left in Paris; but in an
age of railways their distance in Italy is no appreciable inconvenience,
and the Manuals published recently by civilised states generally condemn
the capture of works of art. Our own Manual says that the seizure of scientific
objects and works of art can only be justified as a measure of retaliation.
Here I may observe that an act attributable to a British commander of British
troops, which is 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, it will appear that the British troops in Washington had been
fired at from the arsenal; and that also, a short time before, the chief
city of Lower Canada, then called York, had been burnt with all its public
buildings by the American troops who occupied it. Hence this act, which at
first sight deserves unqualified condemnation, may 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 unauthorized pillage by the soldiers of an invading army; yet there is,
unfortunately, no doubt that in all wars pillage does continue, and especially
in every land war. There is a very old association between war and pillage,
and pillage is generally very easy. A great deal of it, though not of the
worst kind, unquestionably took place when the Germans occupied large portions
of France. The English in Spain abstained from it so far as the orders of
Wellington compelled them to do so. He in fact sometimes employed the severest
punishments for the purpose of deterring his troops from plunder; however,
he was operating in a friendly country, and would have suffered serious damage
by its being converted to unfriendliness. A commander may, however, authorise
pillage; but as to authorised pillage there is one considerable mitigation.
Movable property captured according to the Roman principle, which International
Law inherited, is res nulls; and it has been several times observed, by myself
among others, that in the change of Europe from Roman to Feudal principles
res nullius appeared to have become vested in the sovereign, and very often
in the lord of the manor in which they were found, and lost therefore their
old Roman character. The principle obtains in authorised pillage. It becomes
technically the property of the Crown; it is collected together, and then
equitably divided among the conquering troops as booty. It is also to be
noted that modern usage authorises requisitions and forced military contributions,
and, on the whole, the present theory is that these military contributions
and requisitions have superseded all the older forms of capture.




Requisitions may be made in three ways. First, the inhabitants may be
required to provide supplies without payment; secondly, they may be required
to provide supplies at a moderate cost, without regard being had to the increased
value accruing from the presence of the army; thirdly, they may be required
to provide the supplies on payment of such price as they demand. Which of
these three ways is to be adopted, is in the discretion of the General. Wellington
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 purpose of supporting his army. Both the Germans
and the French have constantly exercised the right; and undoubtedly the strict
rule admitted by the customs of war is that war may be made to supply itself.
The same principles apply to contributions of money levied on a town or on
a whole community. As an arrangement such a levy is just, as a means of maintaining
an briny it is lawful, and possibly in some cases it is more equitable than
requisition. The question is, whether it is expedient. It will be very generally
remembered that at the close of the Franco-German war an enormous requisition
was exacted from the French. The German policy was, undoubtedly, so to cripple
France that it should be incapable of further attack on its neighbours. But
the money requisitioned for the payment was raised by loans with surprising
facility, and it is doubtful 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 me to a question which has excited
perhaps more interest than all other modes of impoverishing an enemy by capture,
and one even more important than was at first supposed. Can a sovereign confiscate
debts? Can he compel his own subjects, or any community over whom he has
military powers, to pay to him debts which they owe to the enemy; that is,
to the hostile sovereign or his subjects? The question has icon much considered
by two high authorities -- the Supreme Court of the United States, and the
famous American jurist Chancellor Kent. The Supreme Court has solemnly decided
that in strict law the right to confiscate debts still exists as a settled
and undoubted right of war, recognized by the Law of Nations, but the Court
at the same time admitted it to be the universal practice at present to forbear
to seize and confiscate debts and credits even in a country on the opening
of a war. The Court would not confiscate any debt without an act of the legislative
power declaring its will that such property should be condemned. After a
full examination of all the authorities and decisions on this question, Chancellor
Kent says: 'We may, therefore, lay it down as a principle of public law,
so far as the same is understood and declared by the highest judicial authorities
in this country, that it rests in the discretion of the legislature of the
Union by a special law for that purpose, to confiscate debts contracted by
our citizens and due to the enemy;' but it is asserted by the same authority:
'This right is contrary to universal practice, and therefore it may well
be considered as a naked and impolitic right, condemned by the enlightened
conscience and judgment of modern limes.'[Kent, Comm. i, 64] In the modern
instances in which the right has been exercised, it is worth observing that
the question of belligerent right was mixed up with the question of allegiance.
For example, private debts were confiscated as against the Southern States
by the Northern States in the war, and by the Southern as against the Northern.
And the same principle has a few times been applied in India in a case where
the enemy was also a rebel.




But the branch of this question which has now been considered for more
than one hundred years is less general than that which I have put; it is,
can a city, can a sovereign, confiscate debts due from itself or himself
to enemies? This is the point raised in the famous case of the Silesian loan.
The history of it is as follows: A loan of 80,000 l. had been advanced by
subjects of Great Britain to the Emperor Charles VI. On the security of the
Duchy of Silesia. Silesia, in 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 lying of Prussia, however,
attached, i.e. took into his own hands, the debt by way 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, and refused to pay the British
subjects the interest which he had pledged himself to pay. The English Secretary
of State at once addressed to him, for Prussia was a friendly Power at the
time, a letter dated February 8, 1753, in which he dwells upon the unprecedented
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 by Sir George Lee, Judge
of the Prerogative Court; Dr. Paul, his Majesty's Advocate-General; Sir Dudley
Ryder, and Mr. Murray -- the Mr. Murray who afterwards became Lord Mansfield.
The report in question is one of which British lawyers and the British Foreign
Office have always been exceedingly proud. It is praised by two great foreign
authorities of the time -- Vattel and Montesquieu; they both of them speak
of it as admirable; it is, in fact, a most excellent example of the method
of reasoning of which International Law admits; and in the end the King of
Prussia gave way to its arguments, and the interest on the Silesian loan
was ever afterwards punctually paid. The point which I have been describing,
is not strictly raised by the facts, as Mr. W. E. Hall observes in his book;
but the opinion of the law officers goes into many questions besides the
main question submitted to them, and among these the trivial question whether
a sovereign can confiscate debts due to himself, and argues against it. Ever
since, it has been held that no sovereign can under these circumstances refuse
to pay the interest on a loan which he has contracted because the recipients
of the interest are for the moment his enemies. The danger introduced by
the Prussian pretension was a great one. Perhaps we do not always notice
sufficiently the extent to which British financial and economical interests
are bound up with the sanctity of foreign loans. From the time at which this
country began to grow rich 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 directly
in trade or manufacture, which were still in their infancy, was lent on personal
or landed securities. There are plenty of allusions in the dramatic literature
of the seventeenth century which might be produced in proof of this. It was
scarcity of public investments which led to the violent struggle between
the two companies formed for trading 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. In another way this scarcity led to the
enthusiasm for mere speculative undertakings, or, as they were then called,
for Bubbles, such as the South Sea and Darien Companies. 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 probably a good deal
of British wealth was embarked in the constant loans raised by the King of
France, who however, was at all times a very unpunctual debtor. But the favourite
fields, no doubt, during that century for British investment were the tropical
colonies which were gradually acquired in the West Indies and more southerly
parts of North America. At 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 fickle of investment; but at the close of the great war loans
to foreign states became commoner, and much British wealth was drawn to them.
In early days they had to encounter many dangers. The various American States
had borrowed largely, but also repudiated largely their liability on technical
grounds. But if a sovereign could have got rid of indebtedness by going to
war with the country in which he had most 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 would have been quite different.
The method of distributing the surplus capital of the richest countries,
to which the civilised world is greatly indebted, owes its existence to this
report of the English law officers in this deservedly famous case of the
Silesian loan.






LECTURE XII.




PROPOSALS TO ABATE WAR




To this last lecture of the present course, it seems to me desirable that
I should briefly notice some assertions or suggestions, not uncommonly heard
in the present day, that the great evils of war might be abated by the adoption
of principles of action not necessarily identical with those which have been
discussed in previous lectures. I pass over general statements which seem
to me to be mere calumnies, such as the charge against influential military
men, that in every society they do their utmost to encourage the spirit of
belligerency. Those who have had the privilege of acquaintance with famous
soldiers will bear me out in saying that, while there is no class of men
more humane, there is none distinguished by a deeper dislike or hatred of
war, however they may believe it to be inevitable. But another assertion
frequently made is much more respectable, and contains a larger proportion
of truth. War, it is said, is irreconcilable with Christian belief and Christian
practice. If men acted up to the standards of conduct which great numbers
of them theoretically accept, there would be few wars or none. This has long
been the doctrine of a sect whose various services to humanity I have already
gratefully commemorated -- the Quakers; and also of an obscurer community,
the Mennonites. It will be evident, I think, to everybody who bestows some
careful thought on the subject, that there would be great difficulty in adapting
a system which professes 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 principle. The Quakers of the colony of Pennsylvania were in the
American War of Independence strong partisans of the colonial cause; and
Benjamin Franklin has left us some curious stories of the fictions by which
the Pennsylvanian Quakers reconciled their conscientious objections to war
with their keen desire to assist the colonial troops. But it is proper to
observe that this opinion of the unlawfulness 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 it. We have most
of us been taught to believe, on the authority of a well-known passage in
Tertullian, that the Roman Imperial armies were full of Christian soldiers;
but the passage is inconsistent with others in the same writer; and I have
seen a long catena of extracts from patristic authorities, extending from
Justin Martyr to Jerome and Cyril, in which the inconsistency of the military
profession with Christian belief is maintained. In fact, this 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,
is met by Origen with the admission that the fact is so, but with the argument
that the Christians do not go on campaigns with the Emperor because they
serve him with their prayers. If these opinions did not become those of the
whole Church, the cause must probably be sought 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, it seemed not improbable that 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 war as any Quaker of our day could
do, and Sir Thomas More charged Luther and his followers with wishing to
deprive sovereigns of their authority by denying to them the power of resistance.
On the other hand, the writers dealt with in the foregoing lectures, the
founders of International Law, did not adopt the opinion of the Lawfulness
of war, though they were nearly all Protestants. Grotius argues vehemently
against it, chiefly on Scriptural grounds. I take the fact to be that he
and his immediate followers conceived the body of rules which they believed
themselves to have rescued from neglect to be more serviceable for the purpose
of regulating the concerns of nations in war and peace, than any system which
pretended to a direct descent from Christian records or Christian tradition.
The Law of Nature which they spoke of, and apparently believed in, with as
little hesitation as if they were thinking of the English Common Law, has
not stood against the assaults of modern criticism, and specially not against
the inferences suggested by the modern study of primitive mankind. But it
did prove possible to apply the rules associated with it to human societies
in peace and war; whereas, though a general belief that war Divas 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 abolition 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 always an alternative
to a contest in arms. Nations fight because they cannot go to law. The old
idea that the disputes of states are referred by war to a supernatural arbitrament
is now abandoned; but though there is 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 communities
defer to the award with no more demur than they exhibit in submitting to
the decision of a court of justice. A belief in this remedy for war is being
widely extended in our day. It is held by persons worthy of ail respect and
promoted by powerful voluntary associations. I should be the last person
to deny that arbitration in international affairs has often been very happily
applied. Nations very often, like men, adhere to their view of disputed points
more from pride of opinion than from any real interest in it. Some of these
disputes, again, turn on questions of fact, 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 disc. passionate minds.




But before this or any other country commits itself to arbitration as
a universal remedy for war, one or two of its defects ought to be specially
noticed. In the first place, though arbitration in individual disputes is
well known and frequently tried. it is very unlike the arbitration proposed
by its advocates for international differences. The arbitration with which
all lawyers are familiar, is merely a displacement of the structure of an
ordinary court of justice. The parties agree to refer all or part of the
matters in dispute between them to the decision of an arbitrator, who takes
the place of the judge or of the judge and a jury, and they at the same time
agree that his decision, unless impeachable on certain grounds of law, shall
be enforced by the court as would be its own decree. It is a very convenient
course when the questions of fact to be adjudicated upon are numerous and
complicated, and the principal objection to it is that it is apt to be very
expensive. What I wish to point out is that arbitration as in use between
individuals in England does not exclude the one great feature of a court
of justice, the force which underlies its operations. There are, no doubt,
arbitrations which come nearer the arbitrations contemplated by the enthusiasts
for universal arbitrations between disputant sovereigns. A skilful man of
business in British commercial cities, an eminent specialist in the practical
applications of science, will sometimes obtain a sort of celebrity for just
and wise adjudication, and nothing like the process of a court is found necessary
to secure obedience to his award. It is, however, many centuries since such
authority was attributed to any man or class in international matters; the
current of opinion in our day runs distinctly against the assumption that
any exceptional knowledge is necessary for the solution of great political
and international questions, and therefore the arbitration of which we hear
so much would in the long run, and if tried on a great scale, prove to have
the defects which would soon show themselves in a court of justice which
the State had failed to invest with irresistible coercive power.




The want of coercive power is, in fact, the one important drawback which
attends all attempts to improve International Law by contrivances imitated
from the internal economy of states, by something like legislation, and by
something 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
is much reason to wish them an extended sphere. But there are some practical
defects in them, as they stand, which should be observed upon, because they
may possibly admit of being remedied. It is well known to English practicing
lawyers that a certain class of litigants are, so to put it, unpopular in
English courts, so that there is considerable difficulty in obtaining for
them a full measure of justice. Among these, to give instances, are insurance
companies, and




to some extent railway companies. In the same way there are states bringing
their controversies before bodies of international arbitrators who are in
the same sense unpopular litigants; and, if inquiry were practicable, I should
not be surprised to find that, in the opinion of English diplomatists and
statesmen in charge of our foreign affairs, our own country is not a Popular
litigant in arbitrations. The truth is our country is thought to be very
wealthy, and to be able to bear the burden of a money award against it better
than any other community. It is believed to be comparatively careless of
its foreign policy, and not to show much sensitiveness under a judicial rebuff.
Lastly, there is a general impression that it has so contrived its international
relations as to escape from its fair share of the anxieties and sufferings
which fall upon other states through war, apprehension of war, and preparation
for war.




Again, it is not, I think, to be denied that the composition of courts
(if I may for the moment so style them) of international arbitration is not
altogether satisfactory. An indispensable element in it is one or more of
the class of lawyers who are commonly called jurists But this word has much
changed its meaning. As lately as the last century there was a class of lawyers
bearing this title who had made a special study of International Law, and
whose collective opinion had serious influence on the development of the
system. But in England the Ecclesiastical and Admiralty Courts have been
transformed, and the special class of lawyers trained in Roman Civil Law
who practiced in those courts has either disappeared or is on the point of
disappearing. Nobody can quite say at present what a jurist is. The word
is used in a number of new senses; and in point of fact most famous foreign
writers on International Law are salaried functionaries of foreign chanceries,
nor can any reader of very modern treatises on the subject fail to see that
many of then1 are strongly affected by the official connection of the writer
with his Government, and by his knowledge of the interest which he supposes
that Government to have in the establishment, maintenance, or development
of particular features of the international system. This last-mentioned drawback
on the usefulness of international quasi-courts of arbitration, that in our
day they are not always satisfactorily constituted, is closely connected
with one general defect which at present characterizes them -- they do not
exercise any continuous jurisdiction, they are always formed for the single
occasion. It is quite uncertain what weight is to be attached to the award
of international arbitrators as a precedent. The mode in which International
Law makes progress in default of a regular Legislature is a very important
subject, which I have not been able to take up in a manner worthy of it in
the present course of lectures, but which I hope to enter upon at some future
time. There is, however, no doubt that a quasi-judicial award, given on a
serious occasion, and acquiesced in by powerful nations who were parties
to the litigation, deeply and permanently affects the law. But quasi-courts
of arbitrators, constituted ad hoc, of necessity attend simply to the question
in immediate dispute, and do not weigh the opinion they give regarded as
a precedent. They cannot look before and after -- to the entire history of
the Law of Nations. This result of their defective structure is particularly
conspicuous and particularly dangerous in what was perhaps the greatest of
all arbitrations, that which settled the difference which had arisen 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 on which it was resorted to. It 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. But the serviceableness of the Geneva award in its effects
on International Law is much more questionable. Even at the outset, the disputants
are found arguing that the arbitrators should have regard to principles which
one of them did not admit to be included in International Law. Great Britain
protests against this principle, but nevertheless allows the arbitration
to proceed. We may, however, be quite sure that if an analogous dispute should
hereafter occur, this principle will be urged by any Power which has an interest
in insisting upon it, and under any circumstances a grave uncertainty is
introduced into International Law. But the Geneva decision, regarded as an
international precedent, is open to much more serious objection than this.
As is well known, Great Britain during the Confederate War was a neutral,
and she was condemned by the arbitrators to pay very heavy damages as punishment
for breaches of her duty as a neutral. She was penally dealt with 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 severe. And
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. But if there be one thing more than another which a true court
of international justice might be desired to keep in view in its decisions,
it is their future effect on the rights of neutrals. Nothing tends to enlarge
the area of maritime wars so much as the neglect of these rights. Nothing
tends so much to make war intolerably oppressive as any rule which helps,
beyond what is absolutely necessary, to invade the principle that neutral
states are merely states which have kept out of a calamity which has fallen
on others, and which merely desire to follow their own business in their
own way. From this point of view, the result of the Geneva arbitration is
not happy. It turns back pro tanto the drift of legal opinion on neutral
fights, which for many years had been setting in another direction. The Geneva
arbitration, I repeat, conferred great benefit for the moment on Great Britain
and the United States. But, looked at as a precedent likely to exercise serious
influence on the whole Law of Nations, I fear it was dangerous, as well as
reactionary and retrogressive.




I have dwelt on this aspect of the Geneva arbitration because it puts
in what appears to me a striking light the disadvantages which attend these
expedients for settling international disputes, through their being invariably
brought into action merely ad hoc. A true court of quasi-justice, like a
court of municipal justice, would be sure to consider the effect of a given
decision on the whole branch of law which it administers. The defect, however,
appears to me to be one for which it 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 International
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 communities. But
no appreciable sacrifice would have to be made by the single or corporate
sovereigns of the civilised world if they were to agree to constitute a single
permanent court, or board, or assemblage of arbitrators, who should act as
referees in any questions which any community or communities should choose
to submit to them. Such a court would not be free from the infirmity which
afflicts all such additions to the international system. It would have no
force at its back. But I think it would be better constituted. I think it
would be more free from prejudice, and would soon be recognised as freer,
than the present occasional adjudicators. And I think it could be better
trusted to adjust its awards to the entire body of international principles,
distinctions, and rules. Such a tribunal as I have described, a court, board,
or commission of arbitrators, having a certain degree of permanence, might
have all the advantages which I have described for it -- it 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 effect on the entirety of the Law of Nations, and it might be employed
more freely as a body of referees on critical questions which are now left
to themselves for want of any authority to which their consideration might
be committed. But still it would not be a true court of justice. It would
share the characteristic, in modern eyes the weakness, of all International
Law, that it cannot command the assistance of force. Its rules have no sanction.
It cannot punish the breach of its rules or the violation of an international
duty. It is true that a defiance of the Law of Nations sometimes draws down
upon the offender a very serious sanction, though it is indirect. Few sovereigns
or states remain unmoved by the disapprobation which an open breach of international
obligation provokes disapprobation now rapidly diffused over the whole civilised
world by the telegraph and the press. Nothing could be more satisfactory
than the outburst of indignation which occurred in 1870, when the Russian
Government took advantage of the difficulties in which Europe was placed
by the war between 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 wholly reasonable. The Russian Government had to abandon its position;
and at a Conference of the representatives of Powers who had been signatories
of the Treaty of Paris, it was declared that 'it is an essential principle
of the Law of Nations that no Power can liberate itself from the engagement
of a treaty, nor modify the stipulations thereof, unless with the consent
of the contracting Powers by means of an amicable engagement.' It is true
that this assertion of the virtual perpetuity of treaties (to which an exception
must be introduced, save by the effect of war) contains a principle which
is not without a danger of its own. But the receded principle is that which
was laid down at the Conference. The truth is that an offender against the
obligations of International Law is at present seriously weakened by the
disapprobation he incurs. Nobody knew this better than Napoleon Bonaparte,
who, next perhaps to Frederick the Great, was the most perfidious sovereign
in modern history, when he persistently endeavoured through his official
scribes to fasten on this country the name of 'perfidious Albion.'




But after all qualifications have been allowed, the denial to International
Law of that auxiliary force which is commanded by all municipal law, and
by every municipal tribunal, is a most lamentable disadvantage. The system
owes to it every sort of infirmity. Its efficiency and its improvement are
alike hindered. And in the last resort, when two or more disputant Powers
have wrought themselves to such a heat of passion that they are determined
to fight, the rest of the civilised world, though persuaded that the contest
is unnecessary and persuaded that its contagion will spread, has, in the
present state of international relations, no popover of forbidding or punish
ing the armed attacks of one state on another. The great majority of those
entitled to have an opinion may condemn the threatened war, but there is
no officer of the Law of Nations to interfere with the headlong combatants.
The amount of force which is at the disposal of what is called the commonwealth
of nations collectively is immense and practically irresistible, but it is
badly distributed and not well directed, and it is too often impotent, not
only for the promotion 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 Law of Nations (which I may describe parenthetically
as most excellent undertaking) was holding its meetings, the subject attracted
considerable, though only momentary, attention. An eminent French economist,
M. de Molinari, published a proposal for what he called a League of Neutral
Powers. The majority of civilised states are always neutral, though the neutrals
are not always the same. If the neutrals combine they are irresistible, partly
from their strength and partly from their power to make one of two belligerent
Powers irresistible by joining its side. M. de Molinari's suggestion was
that it should be one of the duties of neutrality to thwart the spirit of
belligerency, to make it a rule that the outbreak of hostility between any
two Powers should be a casus belli as regards the rest, and to embody these
arrangements in the stipulations of a treaty. It is impossible to deny that
if such a combination of neutral Powers could be effected under the suggested
conditions it would be a most effectual safeguard against war, and this is
in itself an ample justification for starting the proposal. But the objections
to it are plain, and were at once advanced. If carried into effect, it might
diminish the chances of war; but it takes for granted that the mechanism
of war will remain unimpaired. If neutrals are to be equal to their new duties,
they must maintain great armies and navies on the modern scale, or they 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 expenditure, the same ruinous displacement
of industry One result of the scheme might, in fact, defeat another. It is
not altogether true in civil affairs that the strong man armed keeps his
house in peace. The fact that he wears full armour is sometimes a source
of quarrelsomeness, and a temptation to attack his neighbours.




The scheme of H. de Molinari failed to command the attention and interest
which were essential to its serious consideration, because it was too large
and ambitious. It was nevertheless founded, as it appears to me, on a correct
principle, that, if war is ever to be arrested, it will be arrested by sacrifices
on the part of those states which are neither at war nor desire to go to
war. There is a very ancient example of this method of arresting and preventing
the spread of war. Just before the dawn of Greek history, eve have a glimpse
of the existence of several combinations of Greek tribes (which as yet can
scarcely be called states) for the purpose of preventing war among themselves
and resisting attacks from outside. Of these 'amphiktiones,' alliances of
neighbouring 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 become the tool of any aggressive military
Power, but still even then greatly venerated. Now let us look around the
world of our day, and try to see whether we can find anywhere an example
of a successful amphiktiony, a combination of neighbouring 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 sometimes called
the alliance of the three Emperors, which, however, they themselves do not
admit to be in form more than a personal understanding. This alliance or
understanding, if we may judge by the newspapers, is not particularly popular
in Western Europe. Perhaps we do it the same injustice, and for the same
reason, which as historical students we do to such great territorial aggregates
as the Medo-Persian Empire under the Great King. Political freedom and the
movement which we call 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 else with those modern societies to which
we ourselves eminently belong. There is not much constitutionalism, as we
understand the word, in Germany and Austro-Hungary, and there is none at
all in Russia, and thus eve 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 many combined as in Eastern Europe during the last ten
years. The antecedents of the three combined Emperors revere such as to threaten
an outbreak of hostilities at any moment. Germany had ravaged a successful
war against Austria, and also had inflicted bitter humiliation on France,
till the other day the most powerful military state in Europe. Russia in
1877-8 had been at war with the Turkish Empire, which, though in the greatest
decrepitude, exercised a nominal sovereignty over nearly all of Eastern Europe
which was 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 in perpetual activity. The spirit of ambition, the spirit
of religious antagonism, the spirit of race combination or of nationality
(whatever it has to be called), were all loose. Nevertheless, under these
menacing conditions, the 'amphiktiony' of the three Empires preserved the
peace. We do not know what were the exact terms of the understanding, nor
do we quite know when it began. There are signs of something like it having
existed before the Treaty of Berlin in 1878; and though it has to contend
with many difficulties (at this moment with one most dangerous in Bulgaria),
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 resist the solicitations of external Powers, and to forget many of their
own recollections. They must have aimed at keeping the quarrelsome little
communities about them to the limits assigned to them by the Berlin Treaty.
They have not absolutely succeeded in this; but, considering the difficulties,
the success of the alliance has been conspicuous.




The precedent is one on which anyone who shares the hopes of the founder
of this Professorship is forced to set the greatest store. It has been shown
that a limited number of states, by isolating a limited group of questions,
and agreeing to do their best (if necessary, by force) to prevent these questions
from kindling the fire of belligerency, may preserve peace in a part of the
world which seemed threatened by imminent war. It is not a very large experiment,
but it has demanded sacrifices both of money and sentiment. It points to
a 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 for war, can be prevented from engaging
in it, one long step will have been taken towards the establishment of that
permanent universal peace which has been hitherto a dream.




War is too huge and too ancient an evil for there to be much probability
that it will submit to any one or any isolated panacea. I would even say
that there is a strong presumption against any system of treatment which
promises to put a prompt and complete end to it. But, like those terrible
conflagrations to which it has often been compared, it may perhaps be extinguished
by local isolation. In one instance at least, when apparently on the point
of bursting out in a most inflammable structure, it has hitherto been kept
under.