And have not the rules and practice of war been extremely severe towards this class of persons? But enough has been said to show that nations with a system of military training applicable to the entire population of able-bodied men, and other nations without such a system, that nations which expect to invade others and nations which have outgrown aggressive warfare, can hardly be expected to unite on any body of rules, unless they be of the most meagre description. The project of the conference at Brussels aimed at too much, and came from a suspicious quarter. But the "Institut de Droit International" was not far out of the way in adopting-although not with entire unanimity - the following conclusion: that "the project of a declaration, agreed upon at Brussels . . . although having much resemblance to the American instructions of President Lincoln, has the advantage over them of extending to international relations a regulation made for one state, and of containing new requirements at once practical, humane, and progressive." They add in another of their conclusions that the project is, as far as all the materials included in it are concerned, "et quant au fond, à la hauteur de la science actuelle," although they concede that the elasticity or vagueness of certain expressions, which is an inevitable consequence of the necessity of securing an understanding between different states can give a handle to rigorous criticism.1

1 The projects and the protocols of the sessions of the conference were published in a thin quarto form at Brussels. The projects appear in an annex to L'Angleterre et les Petits États par le General T. Brussels, 1875. The Annual Register for 1874 contains a brief sketch of the conference [281]-[284]. The opposition to the project prevented the holding of a second meeting. The Revue du Droit Internationale, vol. vii., for 1875, contains a history of the conference and the conclusions of the Institut de Droit International, to which I have referred.

SECTION III. Of Civil Wars, Wars with Savages, Piracy, and the Slave-trade.

§ 143.

We have thus far contemplated wars between sovereign states; but there may also be intestine or internal wars; wars with hordes of savages, or with nations not governed by our international code; and wars with pirates.

Internal wars.

By internal war we intend movements more serious and lasting than sedition, waged by portions of the people of a country against one another, including in the term country the complex body of a nation and its colonies or other dependencies. In some cases the connection with dependencies may be so remote that the war may almost be called a foreign one. A civil war is one in which the opposing parties are distributed over the territory; while a war in which they are localized may be called a rebellion, insurrection, or revolt. A civil war again does not generally aim at the destruction of unity, but rather at some change of government, constitution or laws, while the other may aim at sundering parts before united.

With internal wars international law comes into contact so far as the laws of war, that is, of humanity and natural justice, are concerned, and also in the bearings of the war upon the interests and rights of foreign states—a point to be considered in the sequel. (§ 179.) In every state there are laws against resistance to the authority of the government, defining sedition, treason, and the like, and punishing in person or property, or both. When an internal war breaks out, the government must determine whether the municipal or the international code, in whole or in part, shall be adopted. In general the relation of the parties ought to be nearly those of ordinary war, which humanity demands, and will be, because otherwise the law of retaliation will be applied. Municipal law may be enforced with less evil in the way of pecuniary than of personal penalties;

fines or confiscations may be efficacious in strengthening the government and deterring from rebellion. If slaves, as among us, form a part of the property of the rebels, since slavery is local and the law of nations knows of no such thing (§§ 74, 135), the advancing military power of the government may set them free and use or protect them in the region which it controls; and indeed, if force overthrows the local laws on which slavery rests, they become free of course.

The same rules of war are required in such a war as in any other the same ways of fighting, the same treatment of prisoners, of combatants, of non-combatants, and of private property by the army where it passes; so also natural justice demands the same veracity and faithfulness which are binding in the intercourse of all moral beings.

Nations thus treating rebels by no means concede thereby that they form a state, or that they are de facto such. There is a difference between belligerents and belligerent states, which has been too much overlooked.

When a war ends to the disadvantage of the insurgents, municipal law may clench the nail which war has driven, may hang, after legal process, instead of shooting, and confiscate the whole instead of plundering a part. But a wise and civilized nation will exercise only so much of this legal vengeance, as the interests of lasting order imperiously demand.

Again, as savage tribes are not governed by the justice which is acknowledged in Christian lands, international law Wars with is here likewise inapplicable. But here one of the savages. parties being a subject of a code which he believes to be founded in justice, it would be flagitious for him to depart from the essential principles which he observes towards other Christian states. Thus while summary punishment for robbery and treachery may be expedient, the Christian state is bound by its own character and practice, in warring with savages, to exercise good faith and humanity, to treat prisoners well, to respect treaties and truces, and to regard the civil rights of the savage communities. For though too degraded to understand what their obligations are, they can be raised

far above their present level by humane examples; while civilized men, falling down in their dealings with savages to their level, only increase their spirit of suspicion and revenge, and sink them to lower depths of ferocity.

Dealings with civil

own our

Here let it be added, that the civilized and half-civilized nations of the world, which have not acknowledged ized nations our law of nations, deserve a peculiar consideration. who do not The object in their case ought to be not only to act code. justly and kindly towards them, but also to lead them to adopt our international law. Why should they not, if it is based on the true principles of human nature, presupposes a universal morality, and is thus fitted to be the law of mankind? In all probability a short time will be needed to bring Persia, Siam, China, or Japan, fully under this law, compared with that during which Christian states have been making and breaking it.

Pirates and

ment.

§ 144.

With piracy, however, the law of nations has to do, as it is a crime not against any particular state, but against their treat- all states and the established order of the world. Piracy is robbery on the sea, or by descent from the sea upon the coast, committed by persons not holding a commission from, or at the time pertaining to, any established state. It is the act (1) of persons who form an organization for the purposes of plunder, or with malicious intent; but who, inasmuch as such a body is not constituted for political purposes, cannot be said to be a body politic; (2) of persons who, having in defiance of law seized possession of a chartered vessel, use it for the purpose of robbery; (3) of persons taking a commission from two belligerent adversaries. The reason for ranking these latter among pirates is, that the animus furandi is shown by acting under two repugnant authorities. It has been held by some that a vessel which takes commissions even

1 If the robbery is confined to the land, although committed by the crew of a vessel, i. e., if it be committed within the territorial jurisdiction of any nation, it would not be called piracy, and would be justiciable by the sovereign of the territory alone. Dana on Wheaton, note 83.

from two allies, is guilty of piracy, but others, as Wheaton ("Elements," ii., 2, § 15), and Phillimore (i., 394), regard such an act only as illegal and irregular.

On the other hand it is not held to be piracy, if a privateer or other armed vessel, exceeding its commission, prey on commerce admitted by its sovereign to be friendly. Offenses of this kind entitle the injured party to compensation, but the jurisdiction belongs to the vessel's sovereign, who is responsible for the conduct of his officer.

Piracy being a crime against nations, may be brought before any court, no matter what the nationality of the plaintiff or the origin of the pirate may be. It is a natural although not a necessary consequence of this principle, that an acquittal by any court in Christendom is an effectual bar against another trial for the same offense.

As pirates acquire no title to what they take, on recapture it reverts to the proprietor without application of the rule of postliminy, but the re-captor can claim salvage. (Comp. § 151.)

The punishment of piracy depends on the municipal law of the state where the offense is tried; the penalty commonly inflicted is death.

The law of each state may enlarge the definition of the crime of piracy, but must confine the operation of the new definition to its own citizens and to foreigners on its own vessels. So by treaty two states may agree to regard as piracy a particular crime which is not classed under international piracy. The effect of such a treaty is to give to both states jurisdiction for this crime over the citizens or subjects of both, but its operation has no bearing on other nations.

In the time of Bynkershoek it was made a question whether the Barbary powers were pirates, as earlier writers on the law of nations had pronounced them to be. He decides that they form states, and may be "justi hostes" in war; and that in fact Europe had acknowledged this by making treaties with

1 This is taught by Hautefeuille (i., 190, ed. 2) after Massé, De Martens (Sur les Armateurs, chap. 2, § 14), and Valin.