5. That the duties implied in the improved usages of war, so far as they are not of positive obligation, are reciprocal, like very many rules of intercourse between states, so as not to be binding on one belligerent, as long as they are violated by the other. This leads us to retaliation in war.

§ 132.

Retaliation.

That retaliation in war is sometimes admissible all agree: thus if one belligerent treats prisoners of war harshly, the other may do the same; or if one squeezes the expenses of war out of an invaded territory, the other may follow in his steps. It thus becomes a measure of self-protection, and secures the greatest amount of humanity from unfeeling military officers. But there is a limit to the rule. If one general kills in cold blood some hundreds of prisoners who embarrass his motions, his antagonist may not be justified in staining himself by similar crime, nor may he break his word or oath because the other had done so before. The limits of such retaliation it may be hard to lay down. In the case of Captain Asgill, a prisoner drawn in order to retaliate for the killing of Captain Huddy, Washington had military right on his side. Asgill, however, was finally set free. Yet any act of cruelty to the innocent, any act, especially, by which non-combatants are made to feel the stress of war, is what brave men shrink from, although they may feel obliged to threaten it. (Comp. § 118, and the instructions for the government of our armies, §§ 27, 28.)

§ 133.

The use of poisoned weapons, the poisoning of springs, the employment of hired assassins, have long been condemned, as opposed to the idea of war, which is an open honorable way of seeking redress.1 Such practices characterize savage war

1 For the history of the rules of war, compare Mr. Ward's History, chapters ix., xv., and elsewhere; also an excellent article in the Oxford Essays for 1856, by Mountague Bernard, Esq., which has been of great use to the present writer, and from which the passages appearing as quotations in the next pages are taken. See also General Halleck's Int. Law and Laws of War, chap. xvi., which did not appear in time to be of service to the author of the present work in the first edition.

fare. Grotius (iii., 4, § 17) is decided in condemning the practice of poisoning springs, but thinks that it is right rules of war. to corrupt water so that it cannot be used, which is

Particular

1. As to un

lawful weap- no worse than to turn the channel of a stream in a

ons, and

juring the

son.

ways of in- direction where the enemy cannot get at it. He says enemy's per- also (§ 18), that whilst hired assassins must never be used, above all when they violate express or implied confidence, an enemy may undertake to kill another in a private and concealed way. This he supports as usual by testimonies from Greek and Roman writers. Modern times would use another language. Bynkershoek, in 1737, falls below the standard of Grotius, and allows of fraud to any extent in war. "Ego omnem dolum permitto, sola perfidia excepta, non quod contra hostem non quodlibet liceat, sed quod, fide data, quatenus data est, hostis esse desinat" ("Quaest. J. P.,” i. 1), — opinions which it gives us pain to cite from such a writer. The Greeks, Romans, and some other states of antiquity, professed to abhor these methods of fraud in carrying on war.1 The Emperor Tiberius, when an offer was made him to put Arminius out of the way by poison, rejected it, although he committed many worse crimes. "Non fraude," Tacitus reports him as saying ("Annal.," ii. 88), "neque occultis, sed palam et armatum populum Romanum hostes suos ulcisci." "Wherein," adds the historian, "he puts himself on a level with the military commanders of old, who had disallowed the use of poison against king Pyrrhus." The spirit of chivalry was still more opposed to fraud and secret stratagem. Enemies often gave notice of an intention to make an attack at a certain time, and the true knight rejected every advantage, save that which his skill and prowess in knightly warfare afforded him.

The laws of war are loose in regard to the instruments of 2. Allowable death used against an enemy. Formerly chain-shot and red-hot shot were objected to, but they do not seem to be now. "Now invention racks itself to

weapons in

modern war.

1 Comp. Dionys. Hal., Antiq., iii., 8, οὐδ ̓ ἐκ τοῦ φανεροῦ ἐπέθεντο ἡμῖν, ὡς ὁ κοινὸς ἀξιοῖ τοῦ πολέμου νόμος, ἀλλ ̓ ὑπὸ σκότους.

produce the biggest gun, the deadliest projectile, the most frightful engine of wholesale slaughter, and the shallows of Kertch and Cronstadt are planted thick with infernal machines. It is possible to go too fast and too far in this direction." 1 What is here quoted from an English essay written a few years since is more true of sea warfare than of land. As Heffter remarks (§ 119), war on that element is the more harsh and destructive. "Its maxims, owing to a want of the proper equipoise between naval powers, have been far from reaching the same level of humanity on which land-warfare stands. It is still half a war of plunder." As for war in general, Klüber (§ 244) lays it down that the customs of war ("Kriegsmanier") condemn not only poisoned weapons, poisoning of wells and of utensils, attempts to spread the plague among the enemy, but also the use of chain-shot and bar-shot (boulets à bras) shooting bits of iron, brass, nails, etc. (tirer à la mitraille). The loading of muskets with two balls, with jagged balls, or with balls mixed with glass or lime, he also holds, somewhat too broadly, to be forbidden. Special treaties have prohibited as between the parties the use of chain, bar, and hot shot, as well as of pitch rings (cercles poissés). An infernal machine invented about the year 1585, which was a kind of fire-ship, was disapproved of by some, but went out of use because it did not do its work well.

On the whole, it may be said that weapons whose efficiency consists simply in inflicting a bad wound, and instruments of wholesale slaughter which cannot be foreseen or avoided by flight, are against the customs of most kinds of warfare; but that naval warfare too much, and sieges, of necessity, make use of summary and wholesale means of death.2 Naval warfare is the storming of one floating fortress by another, but its laws need not be altogether assimilated to the storming of fortified places on the land.

1 Mountague Bernard, u. s., p. 127.

2 Since this was first written, torpedoes have been used for coast and river defense by the Prussians in the Franco-Prussian war, and by the Russians in the recent war with Turkey. For the convention regulating the size of hand-grenades that may be used on the field of battle, see § 142.

Kind of troops employed.

Hitherto the practice of using barbarians in the wars of Christian nations with one another, has not been absolutely condemned by the law of nations. The French used the American Indians against the English in America, and the Turcos, a force made up of Algerines, Kabyles, and Negroes, in Italy; the English employed savages against their revolted colonies, in spite of the rebukes of Lord Chatham; and the Russians brought Circassians with them into Hungary in the war following 1848. But nothing is clearer than that troops who are accustomed to an inhuman mode of warfare, and belong to a savage race, cannot be trusted to wage war according to the spirit of humanity, and ought not to be employed.

itations to

crime.

Breach of faith between enemies has always been strongly 3. Breach of condemned, and that vindication of it is worthless faith: solic- which maintains that, without an express or tacit promise to our enemy, we are not bound to keep faith with him. But no rule of war forbids a commander to circulate false information, and to use means for deceiving his enemy with regard to his movements. If he abstains from them, he must do so by the force of his own Christian conscience. To lead the officers, counsellors, or troops of an enemy to treachery by bribes, or to seduce his subjects to betray their country, are temptations to commit a plain crime, which no hostile relation will justify. Yet to accept of the services of a traitor is allowable.2

§ 134.

A combatant is any person directly engaged in carrying war, or concerned in the belligerent government, or present with its armies and assisting them; although those who are present for purposes of humanity and religion—as surgeons, nurses, and chaplains are usually classed among non-com

1 A qualification is here necessary, that when a nation has been conquered and is under a usurper's sway, and in similar cases, it cannot be wrong for those who are engaged in a war of liberation to lead the people to revolt.

2 Vattel, iii., 10, §§ 180, 181.

4. Treat

tured per

batants, unless special reasons require an opposite treatment of them. The ancient rule was, that a combatant taken in battle became the property of his captor, who could kill, enslave, or sell him. Ransom was a kind of sale ment of capto those who were most interested in paying a highprice. Among the Greeks the general practice was diers. not to refuse quarter to a Greek who gave himself up on the field of battle, and to allow his friends to redeem him, if they would; the price for which was more or less fixed between contending parties. This usage prevailed also among the Romans, as well as that of exchanging prisoners, but any degree of injury to the enemy was allowed in their jus belli. Neither law, nor the feelings of humanity, nor aught save considerations of prudence, restrained them. After the disaster in the Caudine Forks, when they gained their next victory over the Samnites, they slew alike the resisting and the unresisting, armed and unarmed, slaves and free, boys and adults, men and cattle, nor would any living thing have been left alive, unless the consul had given the signal for withdrawing. (Livy, ix., 14.) By the rules of both nations leading officers of the hostile army, after being taken, might be put to the sword. Such was the case with the Athenian generals taken at Syracuse, (Thucyd., vii., 86,) — against the will, however, it should be added, of the Spartan general Gylippus, — and many an illustrious warrior, taken captive by the Romans, had his death delayed, only to endure the humiliation of being led in triumph. Similar cruelty was universal in ancient times, as among the Jews, where David's campaigns dealt death in frightful forms upon surrounding nations; and yet, a century and a half after David, a prophet, to the king of Israel's inquiry, "Shall I smite them?" could answer, "Wouldst thou smite those whom thou hast taken captive with thy sword and thy bow?" — showing that a more humane mode of warfare was then in vogue.

War put on all its horrors in the invasions of the empire by the Germans. Then came the times of feudalism and knighthood, when many mitigations of the barbarian practice grew up. Captives, in wars between Christians, were ransomed and