consignors, in order to protect belligerent consignees, are held to be fraudulent, and these numerous and strict rules of the maritime jurisprudence of the prize courts, are intended to uphold the rights of lawful maritime capture, and to prevent frauds, and preserve candour and good faith in the intercourse between belligerents and neutrals. The modern cases contain numerous and striking instances of the acuteness of the captors in tracking out deceit, and of the dexterity of the claimants in eluding investigation.

Marianna, 6 Rob. 24. The Aina, Spinks, Prize Cases, 81. The Ida, ib. 26. And the American Cases ubi sup.

CHAPTER VI.

OF THE RIGHTS OF BELLIGERENT NATIONS IN RELATION TO EACH OTHER.

THE end of war is to procure by force the justice which cannot otherwise be obtained; and the law of nations allows the means requisite to the end. The persons and property of the enemy may be attacked, and captured, or destroyed, when necessary to procure reparation or security. There is no limitation to the career of violence and destruction, if we follow the earlier writers on this subject, who have paid too much deference to the violent maxims and practices of the ancients, and the usages of the Gothic ages. They have considered a state of war as a dissolution of all moral ties, and a license for every kind of disorder and intemperate fierceness. An enemy was regarded as a criminal and an outlaw, who had forfeited all his rights, and whose life, liberty, and property, lay at the mercy of the conqueror. Everything done against an enemy was held to be lawful. He might be destroyed, though unarmed and defenceless. Fraud might be employed as well as force, and force without any regard to the means1. But these barbarous rights of war have been questioned, and checked, in the progress of civilization. Public opinion, as it becomes enlightened and refined, condemns all cruelty, and all wanton destruction of life and property, as equally useless and injurious; and controls the violence of war by the energy and severity of its reproaches.

1 Grotius, Bk. III. ch. iv. and v. Puff., lib. 11. ch. xvi. § 6. Bynk., Q. J. Pub. Bk. 1. ch. i. ii. iii. Burlamaq., Part Iv. ch. v.

2 De Hautefeuille, Droits et Devoirs des Nations Neutres, T. J. tit. III. § 1, and Heffer, Droit International, § 125.

Ancient

demned.

Grotius, even in opposition to many of his own au- War. thorities, and under a due sense of the obligations of rules of religion and humanity, placed bounds to the ravages of war conwar, and mentioned that many things were not fit and commendable, though they might be strictly lawful; and that the law of nature forbade what the law of nations (meaning thereby the practice of nations) tolerated. He held that the law of nature prohibited the use of poisoned arms, or the employment of assassins, or violence to women, or to the dead, or making slaves of prisoners'; and the moderation which he inculcated had a visible influence upon the sentiments and manners of Europe. Under the sanction of his great authority, men began to entertain more enlarged views of national policy, and to consider a mild and temperate exercise of the rights of war, to be dictated by an enlightened self-interest, as well as by the precepts of Christianity. And, though some subsequent writers, as Bynkershoek and Wolfius, contended for the restoration to war of all its horrors, by allowing the use of poison, and other illicit arms, yet such rules became abhorrent to the cultivated reason and growing humanity of the Christian nations. Montesquieu insisted that the laws of war gave no other power over a captive than to keep him safely, and that all unnecessary rigour was condemned by the reason and conscience of mankind. Rutherforth [whose great-grandson is now (A.D. 1877) noticing his views] has spoken to the same effect, and Martens enumerates several modes of war, and species of arms, as being now held unlawful by the laws of war. Vattel has entered largely into the subject, arguing with great strength of reason and eloquence, against all unnecessary cruelty, or base revenge, and all mean and perfidious warfare; he recommends his benevolent doctrines by the precepts of exalted ethics and sound policy, and by illustrations drawn from some of the most pathetic and illustrious examples®.

4

1 Bk. III. ch. iv. v. vii.

3 Inst. Bk. II. ch. ix.

2 Esprit des Lois, Bk. xv. ch. ii.

4 Summary, Bk. VIII. ch. iii. § 3 (translation by William Cobbett, 1802); and see also the last edition of Martens' Droit des Gens, by Vergé, T. 11. §§ 273, 274, with Pinheiro Fereira's notes. 5 Bk. III. ch. viii.

[6 In an admirable Essay on the Growth and Usages of War, by Professor Montague Bernard, published in the Oxford Essays

War. Plunder on land.

There is a marked difference in the rights of war carried on by land and at sea'. The object of a maritime war is the destruction of the enemy's commerce and navigation, in order to weaken or destroy the foundations of his naval power. The capture or destruction of private property is essential to that end, and it is allowed in maritime wars by the law and practice of nations. But there are great limitations imposed upon the operations of war by land, though depredations upon private property, and despoiling and plundering the enemy's territory, are still too prevalent a practice, especially when the war is assisted by irregulars. Such conduct has been condemned in all ages by the wise and virtuous, and it is usually severely punished by those commanders of disciplined troops who have studied war as a science, and are animated by a sense of duty, or the love of fame. We may infer the opinion of Xenophon on this subject (and he was a warrior as well as a philosopher), when he states, in the Cyropædia, that Cyrus of Persia gave of 1856, the reader will find all that can be said in favour of the merciful and humane doctrines above eulogized, with a most complete sketch of the changes in the method of conducting war and the changes in sentiment and feeling with regard to the conduct of war, from the earliest well-recorded period in the history of war down to the Russian war of 1854.

How far there has been an improvement in the customs and established laws of war since the peace of Westphalia, has been discussed by two eminent writers: Mr Wheaton, who in his History of the Law of Nations, p. 760, maintains that an immense improvement has taken place in the laws of war since the days when Grotius endeavoured to mitigate the cruelty of warfare, and Mr Nassau Senior, who in his critique on Napier's History of the Peninsular War, Edinburgh Review, Vol. 72, p. 314, after dwelling on the high principles of humanity and honour which animated the author of the work reviewed, and the admirable example set by the armies of England and France of softened manners and chivalrous sentiment, notices some important and perplexing questions in connection with the conduct of warfare on the part of an invading army and of the people invaded. As to what are unlawful practices in war, see Bluntschli L. VIII. 4, §§ 551–567. The reader will find in Appendix 1. at the end of this work a short account of the Convention of Geneva, August, 1864.

[1 For an elaborate examination of the difference between war by land and war by sea, the reader is referred to De Hautefeuille, Droits et Devoirs des Nations Neutres, T. 1. tit. iii. sect. III. § 1.]

2 The Johanna Emilie, Spink, Prize Cases, 14; and see also Tudor's Leading Cases in Mercantile Law, p. 804.]

3 Lib. V.

Plunder

orders to his army, when marching upon the enemy's War. borders, not to disturb the cultivators of the soil; and there have been such ordinances in modern times for the protection of innocent and pacific pursuits'. Vattel con

1 Emerigon Des Ass. ch. iv. § 9, and ch. xii. § 19 (Meredith's translation, pp. 105 and 364), refers to ordinances of France and Holland, in favour of protection to fishermen ; and to the like effect was the order of the British Government in 1810, for abstaining from hostilities against the inhabitants of the Feroe islands and Iceland. General Brune stated to the Duke of York, in October, 1799, when an armistice in Holland was negotiating, that if the latter should cause the dikes to be destroyed, and the country to be inundated, when not useful to his own army, or detrimental to the enemy's, it would be contrary to the laws of war, and must draw upon him the reprobation of all Europe, and of his own nation. Nay, even the obstinate defence of a town, if it partake of the character of a mercantile place, rather than a fortress of strength, has been alleged to be contrary to the laws of war. (See the correspondence between General Laudohn and the Governor of Breslau, in 1760. Dodsley's Ann. Reg. 1760.) So, the destruction of the forts and warlike stores of the besieged in the post of Almeida, by the French commander, when he abandoned it with his garrison by night in 1811, is declared by General Sarrazin, in his history of the Peninsular war, to have been an act of wantonness which justly placed him without the pale of civilized warfare. [In his account of the evacuation of Almeida, General William Napier, so far from denouncing General Brennier's act as wanton and uncivilized, speaks of the whole affair as one that reflected credit upon the strategical skill and the military reputation of that officer, the result of whose successful evacuation was a junction of the garrison with Marmont, provoking a strong remonstrance from the British Commander, Lord Wellington, in a general order to the army. Napier's History of the Peninsular War, Vol. III. pp. 520-522. A perusal of the general orders of the Duke of Wellington, when in command of the armies in Spain, will shew how war may be conducted vigorously and effectively, and yet with the utmost regard for feelings of humanity. One instance out of many will suffice for special notice :- that instance is the order issued to the army under his command upon the memorable occasion of crossing the frontiers of France and carrying the war into the enemy's country (9th July 1813): "The officers and soldiers must recollect that their nations are at war with France solely because the ruler of the French nation will not allow them to be at peace....They must not forget that the worst of the evils suffered by the enemy in his profligate invasion of Spain and Portugal have been occasioned by the irregularities of the soldiers and their cruelties, authorized and encouraged by their chiefs, towards the unfortunate and peaceful inhabitants of the country." (See The Dispatches of the Duke of Wellington, Vol. XI. p. 169.)] When a Russian army under the command of Count Diebitsch had penetrated through the passes of the Balkan to the plains of Romelia, in the summer of 1829, the Russian commander

on land.