Fishing-boats frequently exempted.

Of those by

One other exemption from the effects of hostilities must be mentioned, in the case of fishing-boats, which, enjoying a freedom otherwise unknown in maritime warfare, have, in several wars, been allowed to pursue their trade unmolested. As early as 1521, while war was raging between Charles V. and Francis I., ambassadors from these two sovereigns met at Calais, then English, and it was agreed, that, whereas the herring-fishery was then about to commence, the subjects of both belligerents, engaged in this pursuit, should be safe and unmolested by the other party, and should have leave to fish as in time of peace. (1) A similar exemption for fishing-boats occurred in the last war. In 1800, the British and French governments issued instructions, exempting from seizure the fishingboats of each other's subjects: this order was subsequently rescinded by the British government, on its being believed that some of the French fishing-boats were equipped as gun-boats, and that some of the French fishermen, who had been prisoners in England, had broken their parole not to serve, and had gone to join the Fleet at Brest. Some angry discussions took place on the subject, but subsequently our restriction was withdrawn, and the freedom of fishing was again allowed on both sides. (2)

Besides this moderation with regard to the persons whom violence on whom violence may be employed, the Law of Nations is strict in its limitations of the persons by

may be

exercised.

(1) Dumont, Corps Dip. IV. I. 352.

(2) See the correspondence, and

other papers on this subject, in De Martens, Recueil, VI. 503-515.

"operations of the enemy's army, with the intention of collecting "information, if it has been possible to recognise their military "characters" - similarly "individuals sent in balloons to carry de"spatches and generally to keep up communications between the dif"ferent parts of an army of a territory "-are excepted from the class of spies.-ED.]

whom hostilities may be exercised. For although all the subjects of one belligerent are the enemies of all the subjects of the other belligerent, yet it is by no means allowed, as in the practice of barbarous States, that every individual member of a belligerent State may exercise all the rights of warfare. The commission of actual hostilities is only allowed, excepting in cases of self-defence, to those who are expressly authorized so to act by the sovereign power. This limitation is as old as the customs of the Romans, who enforced this principle by the most rigorous penalties. But the Roman system was pursued as a part of military discipline, rather than for the reason which now occasions such limitation, namely, a desire to confine the horrors of war within as small a compass as possible. At the present day, it is deemed indispensable that all persons should act under a commission, to entitle them to be treated as enemies, and not as pirates and marauders. This was formerly carried so far that, previous to the French Revolution, there were instances in which militia were hardly allowed the same treatment as troops of the line; but the system of levée en masse, which has since taken place in almost all continental States, has removed this inequality; and, at present, all troops, however organized, acting under a regular commission, have a right to demand the same treatment.*

[* The principles which should regulate the distribution of a belligerent population into those who do, and those who do not, take an active part in the war, have been much discussed of late years, in respect both of the claims of the peaceful part of the population to rise en masse in order to resist an invader and of the belligerent rights of hastily collected troops of the nature of franc-tireurs, militia, volunteers or guerilla bands. The subject was much and warmly discussed at the Brussels Conference, and there is no doubt that the general question presents itself in a very different aspect to those States which possess great standing armies and have designs on the independence of their neighbours, and to the smaller and weaker States which must rely mainly, for their defence, on the efforts of the peaceful part of the popu

Importance of the usages of European warfare.

But all unauthorized aggressions are punishable, except in self-defence; this freedom from attack, on the part of troops, being as it were the consequence of that immunity, on the part of enemies not soldiers, which has been just noticed. (1) Some observations have been made, in a previous chapter, (2) on the subject of maritime captures by uncommissioned captors, which is with us carried to the extent that prizes so made, even when the action has commenced in self-defence, do not belong to the captor, but to the sovereign, under the head of what are called Droits of Admiralty.*

Thus have the usages of nations gradually imposed restraints upon the unlimited violence which marked ancient warfare. These usages have now become so well ascertained that they were recognised even during that reckless disregard of precedent which characterised the early part of the French Revolution; and, in 1791, in the declaration of the National Assembly, drawn up by Condorcet, regarding their intentions as to foreign

(1) See Vattel, Droit des Gens, liv. III. ch. XV. De Martens, Précis, liv. VIII. ch. IV. § 271.

Klüber, Droit des Gens, Par. II. tit. II. § 267.

(2) Vide ch. II.

lation, organized as best may be for the occasion. The restrictions to which suddenly assembled bodies of troops must be subject have not been clearly ascertained by law as yet; and the modifications which are being generally introduced into the constitution of modern armies bring with them ever fresh problems. (See Halleck, ch. XVI.) The general conclusions to which opinion seems to be gravitating may be expressed in the propositions (1) that, in order to ensure treatment by the enemy according to the laws of war, irregular troops must wear some mark discernible at a distance; (2) that they must be commanded by officers bearing a commission from their government, and that they must themselves observe the laws of war. The justice or expediency of treating a population in arms against an invader, according to the rigorous method applied to the case of single non-combatants taking part in the war, is still matter of debate, and no strictly legal rule exists on the subject. (See United States' Instructions.)]

[* See previous note, p. 170.]

States, they expressly declared that peaceable citizens were not to be regarded as enemies by the French armies. (1) All modern usages tend to confine the miseries of warfare within a narrower compass; limiting their destructive scope both in the persons subject to their influence, and in the manner in which violence may be exercised. Every one must rejoice at this improvement, and must perceive, that though it may be vain to expect that arms shall cease to be appealed to in the disputes of nations, yet that the cause of humanity will be materially advanced by the observance of such restraints; so that when wars do occur, the infliction of any misery shall be forbidden that is not absolutely indispensable to obtain the purpose of hostilities. *

(1) De Martens, Recueil, V. 308.

[*The recent continental wars, on an almost unprecedented scale of magnitude, have brought into prominence a number of problems for which no legal solution accepted by the common judgment of all States is as yet found. Attempts at solution, of a more or less satisfactory sort, have, indeed, been made, as in the "Instructions" to the United States' armies, and in the discussions of the Brussels Conference. Such problems are those concerning the limits of rights of retaliation for breach of the laws of war; the meaning and limits of what is called "military necessity;" the obligation of obeying military, or so-called "martial" law, in an occupied territory; the right of imposing compulsory military service on an enemy's citizens; the right of resorting to the use of stratagems, treachery and deceitful intelligence; and the exemptions enjoyed by sentinels, outposts, and even certain classes of spies. (See Halleck, chap. XVI.)]

M.

P

Leniency introduced by civilization

with regard to prisoners of

war.

Their cruel treatment among barbarians.

CHAPTER VIII.

OF PRISONERS OF WAR.

IN the preceding chapter, we have traced the manner in which, as civilization has advanced, a milder and more humane treatment has gradually pervaded the usages of modern warfare, as regards personal violence; and the same improved understanding of what the Law of Nature commands, is observable in the more lenient treatment now usual with regard to prisoners of war. But the amendment of these latter usages has been more gradual; principally, I think, because the customs of warfare, with regard to prisoners, have, till very lately, proceeded wholly upon a wrong basis. It has been customary for many ages to regard captives, not as persons who, because they no longer resisted, are no longer fit objects for violence, but as persons to whom the conqueror has granted life, and of whom he has, in return for that gift, the absolute disposal; so that he might employ them for any purpose, and regard them wholly as his property; treating them as persons who have no longer independent rights of their own.

It is unnecessary to do more than refer to the barbarous cruelties with which prisoners of war are treated by savage nations; but it is with sorrow that we find Grecian warfare stained with such atrocities as the slaughter, in cold blood, of prisoners of war, while other captives were subjected to become the slaves of their conquerors; and in Roman warfare the executioner often terminated in prison the lives of those who had been paraded in the conqueror's triumph. The barbarians who overthrew the empire treated their prisoners,