tion the sovereignty of the conqueror is unstable and incomplete. Hence the allegiance of the inhabitants of the territory so occupied is a temporary and qualified allegiance, which becomes complete only on the confirmation of the conquest, and with the express or implied consent of the conquered.1

§ 15. But when does this change of temporary allegiance actually take place? And under what circumstances may the inhabitants of a conquered city or province take up arms to repel the conqueror, and assist their former sovereign in recovering his lost possessions? These are delicate questions, not always easy of decision. And yet, their resolution involves matters of the utmost importance; for the decision of the first fixes the line between justifiable homicide and murder, and that of the second will determine whether those taken in arms are to be treated as prisoners of war, or may be executed as military insurgents. As a general rule, the inhabitants of a place lose their right to resist on its complete capture or formal surrender, and the conqueror then loses his right to kill. Those who retain their arms and refuse to surrender, are still enemies, exercising the rights of war, and subject to its consequences; but those who submit are bound by the conditions, express or implied, of such submission. Obedience to the laws which the conqueror may impose by the right of conquest, is undoubtedly one of these implied conditions. But is there no limit to such obedience, and may not those who have thus submitted to the authority of the victorious enemy, throw off, at any time, this temporary allegiance to the conqueror, and restore the former and rightful sovereignty? In other words, does not their duty to their own country involve the right of insurrection against that of the conqueror? In order to arrive at a satisfactory answer to this question, it may be well to consider the more general right of revolution. For, although there is a broad and obvious distinction between an insurrection of a conquered city or province against the conqueror, and a revolution against an established government, yet it will be found, on examina

1 Burlamaqui, Droit de la Nat. et des Gens, tome v. pt. iv. ch. vi. ; American Ins. Co. v. Cauter, 2 Peters R., 542; Calvin's case, Coke R., pt. vii.; Rayneval, Inst. du Droit Nat. etc., liv. iii. ch. xx.; Heffter, Droit International, §§ 132, 186; Puffendorf, De Jur. Nat. et Gent., lib. viii. ch. vi. § 2I.

tion, that both rest upon the same general principle—the relation of protection and allegiance, or the reciprocity of right and obligation.'

§ 16. In ancient times, when a city or district of country was conquered, the principal male inhabitants, capable of resistance, were put to the sword. This was an exercise of the extreme right of war, and justified on the ground of necessity, as the hostility and continued resistance of the inhabitants of the conquered place would otherwise prevent the conqueror from pursuing his military operations, for the purpose of securing the object of the war. But, in more civilised ages, when a place is taken by one of the belligerents, and the people lay down their arms, they are allowed to continue their ordinary peaceful occupations, without hindrance or restraint, but with the tacit or implied agreement, that they will oppose no further resistance to the power of the conqueror. They are virtually in the condition of prisoners of war on parole. No word of honour has been given, but it was implied; for only on that condition would the conqueror have relinquished the extreme right of war which he held over their lives, and have suffered them freely and peacefully to pursue their ordinary avocations. But this implied obligation does not bind those who remain in arms, or those who are retained as prisoners of war; their right of resistance continues. It is only those who enjoy the favours of the conqueror, by a relaxation of the rights of war for their benefit, that are tacitly bound by the acceptance of such favours. If they decline the favour, they do not assume the obligation.. Thus, a prisoner of war who refuses to give his parole may: kill his guard and effect his escape, without any violation of the laws of war, or the obligations of honour and morality.

17. It must also be observed, that this tacit agreement is mutual and equally binding upon both parties. If the conquered are under the implied obligation to make no further resistance to the conqueror, it is only in consideration of the favours and privileges they are to derive from a relaxation of the extreme rights of war, by being allowed peacefully to

1 Vattel, Droit des Gens, liv. iii. ch. viii. §§ 136-140; Wheaton, Ele. Int. Law, pt. iv. ch. ii. §§ 1, 2; Leiber, Political Ethics, b. iii. ch. i. §. 2 Grotius, De Jur. Bel. ac Pac., lib. iii. cap. viii.; Heffter, Drat International, §§ 119, 124.

pursue their ordinary occupations, without any further restraint than may be necessary for the safety of the conqueror. But if the conqueror should impose unusual and unnecessary restraints, should treat them with unmerited harshness, should destroy or confiscate their property, taking away the liberty of some and the lives of others,-such conduct on his part would release them from the obligation of non-resistance, and restore to them the rights of belligerents in actual war. Insurrections, in such cases, are justified by the law of necessity and the natural right of protecting life, liberty, and property.1

§ 18. The abstract question of the right of a people to take up arms against the authorities of an established government, has often been discussed by speculative writers. However opposed it may be to the general theory of political organisation and government, it can hardly be doubted that a revolution, in certain circumstances, would be justifiable. But in what circumstances? Here opinions diverge, and doubts and difficulties increase as we advance, till all hope of a satisfactory conclusion is lost. Abandoning, then, all chance of deciding what constitutes justifiable causes of civil revolutions, we must judge of them by their effects. If we turn to history, we find that they form some of its brightest and some of its darkest pages. Sometimes nations have been benefited by them, and sometimes they have proved the utter ruin of whole States. While, therefore, the right of revolution is opposed by the jurisconsult on technical grounds, and admitted by the philosopher on the ground of necessity, all agree that such a terrible rupture of the frame-work of civil society should be resorted to only where all other means of redress have failed. 'Governments, long established, should not be changed for light and transient causes. . . . . . . But when a long train of abuses and usurpations, pursuing invariably the same object, evinces a design to reduce them under an absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security.' 2

1 Leiber, Pol. Ethics, b. iii. ch. i. § 1; b. iv. ch. ii § 29; Abegg, Untersuchungen, p. 86; Heffter, Lehrbuch des Criminalrechtes, § 37

2

? Vattel, Droit des Gens, liv. ch. xviii. §§ 290, 291; Taylor, On Revolutions, passim; Burlamaqui, Droit de la Nat. et des Gens, tome v. pt. ii. ch. vi.; Declaration of American Independence; Encyclopædia Ameri

cana, verb. Insurrection.

§ 19. The right of insurrection in war, therefore, rests upon the same principle as the right of revolution against an established government. The general duty of obedience to the laws, results from the protection they afford to the lives and property of the citizens and subjects; but when a civil government fails to afford that protection, and obstinately persists in a course injurious to the people, and when the probable evils accompanying the change are not greater than the blessings to be obtained by it, revolution becomes a duty as well as a right. So, also, with respect to the military government of occupation established by the conqueror; its course may be so injurious to the conquered people as to render submission intolerable, and to justify them in resorting to the necessary, but cruel alternative, of insurrection. The principle is plain and clear, but there is great difficulty in its application to particular cases. The historians of the conquered power almost invariably justify such insurrections on the score of patriotism, while those of the opposite party as uniformly condemn them as in violation of the laws of war, and the implied obligation of submission. As, in revolutions, success or failure usually gives to a military insurrection the popular character of patriotic resistance, or of a cruel and unjustifiable sacrifice of human life. They are too often judged of by the results produced, rather than by the causes which originated them, and the motives for which they were undertaken. Of all the operations of a war they are the most doubtful in their character and unsatisfactory in their results, being usually attended by the most atrocious cruelties, and not unfrequently terminating, even when successful, in the most horrible crimes. As might naturally be expected, where the fiercer passions are unbridled, the innocent and guilty suffer alike, without respect to age, sex, or condition. Hence, the good produced by a military insurrection seldom compensates for the evils which attend it or follow its train.1

§ 20. As the conquered inhabitants, in a military insurrection, throw off all implied obligations of submission to the authority of the conqueror, and resort to the extreme rights of war, it follows that the conqueror may, in such a case, resume towards the insurgent enemy the severe and extreme rights of

1 Abegg, Untersuchungen, etc., p. 86; Leiber, Political Ethics, b. iv. ch. iii. § 28; Alison, Hist. Europe, vol. i. pp. 405, 468.

the same code over life and property. The insurgents taken in arms, as well as their instigators, may therefore be put to death, and their property confiscated or destroyed. But this extreme right of the conqueror over military insurgents, is limited by the laws of humanity, and he is not justifiable if he resort to cruel and unnecessary punishments. Such severe rights should always be used with moderation, and their exercise tempered with mercy. Hence, in modern wars, only the leaders and instigators of a military insurrection are usually punished with death, while the common people who are engaged in it are more leniently dealt with. Sometimes, heavy contributions are levied by way of punishment upon the place or district of country where the insurrection occurs. This practice is justified on the ground that the instigators and leaders, being usually the originators of the insurrection, should suffer the punishment due to the offence, and that a community is to be held responsible for the acts of its members where the individual offenders cannot be otherwise reached. It must be remembered, however, that although by the rules of war the conqueror has a lawful right to impose the severest punishment upon military insurgents, it by no means follows that he is justifiable in so doing. We must here distinguish between what is permitted by the law and what is forbidden by morality. As there is no legal tribunal to determine upon the justice of a war, neither is there one to determine upon the cause of a military insurrection, or the justice of the punishment imposed upon the insurgents. But there is a tribunal of public opinion to which all are subject. If, therefore, the conqueror has, by acts of tyranny and oppression, given good cause for a revolt in a place occupied by force of arms, his own conduct will be condemned, and that of the insurgents approved at the bar of conscience and in the opinion of all good men.1

1 Vide ante, ch. xx. and xxi; Vattel, Droit des Gens, liv. iii. ch. xviii. §§ 290, 291; Barbeyrac, Note sur Puffendorf, tome ii. p. 474.

Attacks, by or with the presumed aid of the French inhabitants, were never left unpunished by the Germans, in the war of 1870. At Mézières, near Nantes, half a village was consumed, because a parting shot was fired at some Bavarians. At Foucancourt, a third of the houses were consumed, because the inhabitants were accused of being in collusion with some Francs-tireurs, who had fired on the Germans at the entrance to the village, under cover of a thick fog. Vernon (on the road to Rouen), though an open town, was shelled by the Germans, because some gamekeepers had fired at them across the river, and the bridges being broken they could not recross.-Edwards, suprà.