ment.

*

Very superior to the opinions of these writers, is the Of Vattel. exposition by Vattel of the principle that should regulate violence in war. The rights of a nation upon an enemy, in a just war, are wholly, he says, "to be deduced from one single principle, from the object of a just war: for, when the end is lawful, he who has a right to pursue that end, has, of course, a right to employ all the means which are necessary for its attainThe lawfulness of the end does not give us a real right to anything farther than barely the means necessary for the attainment of that end. Whatever we do beyond that, is reprobated by the Law of Nature, is faulty, and condemnable at the tribunal of conscience. Hence it is, that the right to such or such acts of hostility varies according to circumstances. What is just and perfectly innocent in war, in one particular situation, is not always so on other occasions. Right goes hand in hand with necessity and the exigency of the case, but never exceeds them." (1)

in which

justifiable.

This appears a correct exposition of the principles True principle that regulate the degree of violence justifiable towards of the degree an enemy. War is an evil, recourse to which can only violence is be justified by the necessity of the case, and for the avoidance of greater evils; and no further evil can possibly be right, than is absolutely necessary to obtain the end of war. It is obvious that to cause unnecessary suffering is as much a crime during war as during peace. Neither the absence of human jurisdiction, nor the precedents of former outrage, at all affect the wrongfulness of useless violence in war: if the former were an excuse, it would make legal conviction the measure of right; and the latter would, unfortunately, supply a reason for the commission of almost every

(1) Droit des Gens, liv. III. ch. VIII. § 136, 137.

Regulations established by

the customary law.

enormity. If the great purposes of justice between nations cannot be preserved from violation without hostilities, recourse to war is justified, and such a degree of slaughter and violence as is inseparable from that condition, and indispensable to attain the end of war, is innocent in the injured, though it attaches a grievous responsibility to the aggressor who occasions such destruction and suffering. To such an extent violence is justifiable; but every commission beyond this is a crime, and as such is forbidden by the Law of Nations. For the Law of Nature, as derived from human reason, and corroborated by inferences from divine revelation, allows no suffering to be inflicted but for the attainment of some just purpose-and only justifies such an extent of infliction as the circumstances of the case render imperative and indispensable.

The acts of violence allowable in warfare being thus determined by their necessity for the object of the war, it would seem to be indifferent, according to the Law of Nature, in what manner that violence is exercised; so that it would be as allowable to obtain the ends of justice by destroying an enemy by poison, as by killing him in open battle. But the customs of warfare have interfered to regulate the manner in which violence should be exercised; and many of these usages have become acknowledged parts of the Law of Nations, and cannot now be infringed without violating that law. Thus Grotius says, that though the Law of Nature does not forbid the use of poison in war, yet that the Law of Nations prohibits this mode of destruction. (1) Bynkershoek, as we have just seen, allows any sort of violence to be employed, and does not enter upon the consideration of whether this general rule is modified by the usages of nations. Vattel, on the other hand,

(1) De Jure, lib. III. c. IV. § 16.

will not even admit that poison may be used according to the Law of Nature. But, without entering upon this point, it may now be stated, as decided and uncontradicted, that the Law of Nations does not allow the use of poison in war, nor of poisoned weapons, nor of poisoned fountains or wells, nor of recourse to assassination; and some authors except the use of langridge (mitraille); but this is still sometimes employed, though very rarely-I believe never by the English or French. (1) Thus has custom interfered to prescribe limits to the manner in which violence may be exercised towards an enemy. Such usages, at present, form an integral part of the European Law of Nations; and the Law of Nature now demands their observance, because their neglect by one belligerent would lead to their neglect by his antagonist; and there would thus be no permanent advantage to either party from an infraction of these rules, which would be attended with no other result than an addition of useless cruelty to the already burdened catalogue of the miseries of warfare. †

(1) Vattel, Droit des Gens, liv. III. ch. VIII. § 155, 156, 157. De Martens, Précis, liv. VIII. ch. IV.

§ 273. Klüber, Par. II. tit. II. § 244.

[* The modern mitrailleuse does not scatter mitraille in the sense of fagged iron and the like, but only increases the number of ordinary balls discharged at a single shot.]

[ The most important effort of late years to restrict the use of barbarous methods of warfare was made in 1868 at St. Petersburgh by a declaratory convention entered into, on the proposition of Russia, by the States of Great Britain, Austria and Hungary, Bavaria, Belgium, Denmark, France, Greece, Italy, the Netherlands, Persia, Portugal, Prussia and the North German Confederation, Russia, Sweden and Norway, Switzerland, Turkey and Würtemburg. The instrument recited that "the only legitimate object which States should endeavour "to accomplish during war is to weaken the military forces of the enemy; that for this purpose it is sufficient to disable the greatest "possible number of men; that this object would be exceeded by the " employment of arms which uselessly aggravate the sufferings of dis

Exemption of certain classes.

Dependent on the same principle-that no injury unattended with results upon the issue of the war is allowable, is the prohibition to attack the persons of certain classes of the enemy, which is now acknowledged as part of the European Law of Nations. Formerly, when nation attacked nation, the whole inhabitants of the hostile State were regarded as liable to the rigours of warfare; and we have seen that Grotius declared such treatment to be according to the Jus Gentium; but, at the present day, not only old people, women, and children, are regarded as exempt from the violence of warfare, but also, in general, all those subjects of the hostile State who do not bear arms, or who take no active part in hostilities; and also even those who

66

"abled men or render their death inevitable; that the employment of "such arms would, therefore, be contrary to the laws of humanity." The contracting parties thereupon "engage to renounce, in case of war among themselves, the employment by their military or naval troops "of any projectile of a weight below 400 grammes, which is either explosive or charged with fulminating or inflammable substances." (See the document at length in Phillimore, vol. III. 3rd edition, Part IX. chap. VII.) The Conference of 1874 at Brussels adopted the terms of this Declaration in this language. "Art. 12. The laws of war "do not allow to a belligerent an unlimited power as to the choice of means of injuring the enemy. Art. 13. According to this principle are strictly forbidden the use of arms, projectiles, or substances, which may cause unnecessary suffering, as well as the use of projectiles 66 prohibited by the Declaration of St. Petersburgh in 1868."

66

66

The employment of troops accustomed to savage methods of warfare has been objected to though not formally condemned. M. RolinJacquemyns in his observations, published in the Revue de Droit International, 1870, on the bearings of the French and German war on the Law of Nations, calls attention to the transgression of this principle by the French in the employment of "Turkos." He says that the "French Government, in employing men who make no scruple to mutilate "the wounded and to dispatch them on the field of battle, doubly "failed in its international duties, both in respect of the Arab tribes "from which it borrowed barbarism instead of imparting to them "its own civilization, and in respect of the European nations whom "it menaced with this illegal instrument." See also Heffter, § 125.ED.]

follow the enemy's camp, but take no part in hostilities -such as medical men, commissaries, sutlers, and all who can be strictly classed as non-combatants. (1) *

(1) De Martens, ubi sup. § 272. Klüber, ubi sup. § 247, note c.

66

[ The effective neutralization of all persons and things concerned in the care of the wounded is now secured by the Convention signed at Geneva, August 22nd, 1864, by the plenipotentiaries of Switzerland, Baden, Belgium, Denmark, France, Hesse, Italy, the Netherlands, Portugal, Prussia, Spain and Würtemburg, and to which the British Government subsequently acceded. By Art. I. of this Convention, "ambulances and military hospitals were to be acknowledged to be "neuter, and, as such, to be protected and respected by belligerents "so long as any sick or wounded might be therein." By Art. II. persons employed in hospitals and ambulances, comprising the staff "for superintendence, medical service, administration, transport of "wounded, as well as chaplains, should participate in the benefit of "neutrality whilst so employed." By Art. VII. a distinctive flag and arm-badge was to be adopted and to bear a red cross on a white ground. The following extracts from the text finally adopted by the Brussels Conference of 1874, on the subject of the regulation of sieges and bombardments may be taken as a tolerably exact expression of the dominant European opinion in reference to this subject. Art. XV. "Fortified places are alone liable to be besieged. Towns, agglomera"tions of houses or villages, which are open and undefended, cannot be "attacked or bombarded." Art. XVI. “But if a town or fortress, agglom❝eration of houses, or village be defended, the commander of the attacking "forces should, before commencing a bombardment, and except in the case "of surprise, do all in his power to warn the authorities." Art. XVII. "In the like case all necessary steps should be taken to spare as far as "possible buildings devoted to religion, arts, sciences and charities, hospitals, and places where sick and wounded are collected, on con"dition that they are not used at the same time for military purposes. "It is the duty of the besieged to indicate these buildings by special "visible signs to be notified beforehand by the besieged." Art. XVIII. "A town taken by storm should not be given up to the victorious troops to plunder." The question of the treatment of spies was brought before the Conference, and it is said that "they were by no "means without protection and advocates." The 19th Article of the " modified text❞ adopted by the Conference is, "No one shall be con"sidered as a spy but those who, acting secretly or under false pretences, "collect, or try to collect, information in districts occupied by the enemy "with the intention of communicating it to the opposing force." By Art. XXII. "Military men who have penetrated within the zone of

66