necessary, they give notice to the inhabitants, that they may retire to a place of safety. It was a proceeding worthy only of barbarians, when Suchet drove the people of Lerida, in Catalonia, into the citadel, then threw shells among the unprotected multitude, and compelled the governor to capitulate by such an appeal to his humanity. Formerly it was regarded somewhat in the light of a crime if a commander of a fortress held out as long as he could, and instances may be adduced where such officers were put to death for their obstinacy. Now, in ordinary cases, surrendering at discretion only reduces the soldiers to the state of prisoners of war. A commander who should blow up the works of his fortress, and break through a blockading army, would, according to the opinion of some, be doing an act contrary to the laws of war; but this does not appear to be true, although the blockader might be justified in refusing quarter to those, or at least to those officers who should seek thus to deprive them of the fruit of their toils.'

When a fortified town has been stormed, the prevailing usage of modern as of ancient warfare is, to let the soldiers have full licence. The frightful scenes at the storms of Ciudad Rodrigo, Badajos, and St. Sebastian, under so humane a general as Wellington, show that it is thought impossible at such times to curb the ferocity of soldiers. Wellington himself was of this opinion; but, says Napier,2 let the plunder of a town after an assault be expressly made criminal by the laws of war, with a due punishment attached; let a select, permanent body of men, receiving higher pay, form a part of the army, and be charged to follow storming columns, with power to inflict' even death, if necessary; let money, in proportion to the importance and delay of the services, be paid to the successful troops, and with such regulations, the storming of towns would not produce more military disorders than the gaining of battles in the field.’

the sea.

§ 133.

The liability of private property to capture on the sea we Laws of war on have already considered, and the regulations of capture we shall reserve for a separate section. It has, moreover, already appeared that the usages of naval warfare are more like those relating to attacks on forts than like those which control ordinary land operations; and that even submarine instruments of death, exceptionable as they are, are not yet discarded. A word remains to be said in regard to the treatment of seaports and coasts by vessels of the enemy. For a a long time it was lawful to descend upon coasts, bombard towns, 2 Ib. iv. 216.

1 Compare Napier, u. s. iv. 252.

levy contributions, and burn places which refused to pay them. 1 Even in 1813, the British admiral, Cochrane, had orders to destroy property on the American coast, but the injury done to Newark, in Canada, by our forces, was given as the reason. More recent operations have shown a milder spirit. Odessa was not attacked in the late war with Russia, as being merely a commercial port. On the whole, there are signs that ravages by forces on both elements and requisitions on the ground of exemptions from them are growing obsolete.

§ 134.

Communications between enemies in war have long been carried on by heralds, persons bearing flags of truce, Commercia belli. cartels for the exchange of prisoners and other pur

poses, &c. A belligerent may decline to receive a flag of truce, or to hold any intercourse with the enemy, or may even fire upon those who persist in attempting to open such intercourse after being warned off, but the bitterness of war rarely reaches this point.

Contracts lawful during war, as safeguards and passports, licences to trade, armistices, ransom contracts, contracts to pay requisitions, and the like, will be considered elsewhere, as far as may be necessary. (Compare § 146, § 147, § 142.)

§ 135.

Spies.

A general rule of war allows the punishment of death to be inflicted upon spies who are found in disguise within the lines of an army. The case of Major André, painful as it was, was strictly within military usage. But military spies,in their regimentals, when taken, are treated as ordinary prisoners of war.

SECTION III.-Of Civil Wars, Wars with Savages, Piracy and the Slave Trade. $136.

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.

1 The German word brandschatz, literally denoting an estimate of the burning or an equivalent to the burning of a dwelling or town, and applicable to the operations of both military and naval war, contains in itself the history of whole ages of barbarity.

By internal war we intend movements more serious and lasting than sedition, waged by portions of the Internal wars. 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 localised may be called a rebellion, insurrection, or revolt. A civil war again does not 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 intrests and rights of foreign states-a point to be considered in the sequel. (§ 166 b.) 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 (§ 70, § 138), the advancing military power of the government may set them free and use or protect them; 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 civilised 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 Wars with savlaw is here likewise inapplicable. But here one of ages. the 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 civilised 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. Here let it be added that the civilised and half-civilised nations of the world, which have not owned our Dealings with law of nations, deserve a peculiar consideration. The object in their case ought to be not only to act our 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, under this law, compared with that during which Christian states have been making and breaking it.

§ 137.

civilised nations who do not own

With piracy, however, the law of nations has to do, as it is a crime not against any particular state, but against Pirates and their all states and the established order of the world. treatment. 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 organisation for the purposes of plunder, 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. reason for ranking these latter among pirates is, that the animus furandi is shown by acting under two repugnant authorities. It

The

1

has been held by some that a vessel which takes commissions even from two allies, is guilty of piracy, but others, as Wheaton (‘El.' 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. Offences 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 offence.

As pirates acquire no title to what they take, on recapture it reverts to the proprietor without application to the rule of postliminy. (Compare § 143.)

The punishment of piracy depends on the municipal law of the state where the offence is tried: the established penalty 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 them. No one now will question this, especially as in the course of time these states-those of them which still exist-have in a measure laid aside their piratical habits.2 (Note 12.)

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

2 For piracy in general, compare especially Bynkersh. Quæst. J. P. i. 17, entitled De Piratica, et an Barbari in Africa sint Piratæ. Compare also Kent, lect. ix. and Wildman, ii. 150. The principal passages of the Roman lawyers respecting restoration of things taken by pirates without postliminy, are one from Ulpian (Dig. 49, Tit. 15, 24), 'qui a latronibus captus est, servus latronum non est; nec postliminium illi necessarium est,' and one from Paulus (u. s. 19, § 2), ́ a piratis aut latronibus capti liberi permanent.'

6