the hostile parties have mutual Rights and Obligations, notwithstanding the efforts they are making for each other's damage or destruction. The Rights of War, among the ancients, extended to the Right of enslaving or putting to death all who were taken prisoners in battle, and even all the inhabitants of a conquered country. Yet the same Laws of War condemned those conquerors who refused Sepulture to the dead bodies of their enemies; the same Laws required a reverence for the Heralds who acted as international envoys, and an exact fidelity in observing Truces and Treaties. Moralists have been blamed for saying that to enslave vanquished, and to kill captive enemies, is not contrary to the Natural Rights of War. Yet we see how natural such practices are, for they occur in all nations at the early periods of their jural career. The proper condemnation of these practices is, not that they are contrary to the Natural Rights of War, but that they are the Rights of War in a rude and savage condition of nations, and are condemned by International Law, when it has made any considerable progress in humanity.

1060 In ancient Greece and Rome, every citizen was considered as a soldier; but in modern times, the combatant is distinguished from the non-combatant part of the nation, and there are different classes of Rights of War applicable to these different classes of persons.

1061 The Rights of War, as they affect Combatants, are purified from much that was savage and cruel in their earlier form, by taking into account the general conception of War; that it is the use of the public Force of the State in order to enforce its asserted Right. The public Force, Armies and Navies with their munitions, act so as to damage, defeat, and destroy the Armies and Navies of the enemy. Armies are defeated by destroying their organization; and hence, as soon as a man, or a body of men, by surrendering, has ceased to belong to the organization of the army, he is no longer an object of active hostility. He is a prisoner. The same is the case, when a ship, in a fleet, strikes her colours. In the siege and capture of a fortress, the amount of severity exercised upon the defenders of the place, depends upon the obstinacy of the struggle between them and the assailants. If the defense have been very obstinate, and the place is taken by storm, the practices of War, up to the most modern times, partake of the savage and cruel habits of the rudest nations. But though, on such occasions, unresisting men and helpless women may suffer death or violence in hot blood, the voice of all civilized nations

condemns, as violaters of the Rights of War, the soldiers who commit such deeds in cold blood. Sometimes severities are inflicted upon a captured garrison, professedly on account of a resistance too long protracted. In such cases, the severity may be considered as a punishment which the Laws of War entitle the victor to inflict, in return for damage and delay which the defenders have needlessly occasioned him, since their ultimate success was hopeless. The Romans spared the garrison of a place, if it surrendered before the battering-ram struck the walls. To put to the sword the garrison of a captured place, in order to strike terror into other places, and paralyse their resistance, is a course which has an aspect of savage cruelty; yet it is asserted to be conformable to the Laws of War; and has even been defended, as humane, because it tends to bring the war to an end. In like manner, the putting prisoners to death in the way of retaliation, or of punishment from violated faith, has a most cruel aspect; yet if this be not done, how is the cruelty, when commenced on one side, to be punished or stopped? and how can there be any value in the giving of Hostages for the performance of a treaty? That War has necessarily inhuman features, such as these, shows us how much the cause of humanity requires that the operation of War should be superseded in all possible cases.

1062 The Laws of War which limit the modes of action of the combatants, flow from the conception of War,-that it is the Action of one State against another State, to enforce justice by its public force. The force used is to be public; hence assassins, poisoners, secret incendiaries, are prohibited. Damage done by such means, cannot be avowed by a State; and hence, cannot be a part of the conduct by which the State publicly seeks justice. Also, such damage cannot be used so as to make a State alter its conduct, and therefore cannot be used so as to obtain justice. But this view does not prohibit operations which are clandestine for a time, as an ambush, or a mine; for these are works of an army, and have the same results as other acts of warfare.

1063 Stratagems are frequently employed in warfare; and it may appear difficult to reconcile some of these with Good Faith; as when a general allows his enemy to get hold of letters, or informants, purposely contrived to deceive. But it is to be recollected, that the Rules of Good Faith apply only to those modes of communication with regard to which there is a Mutual Understanding. Soldiers are bound in Good Faith to respect a truce, a flag of truce, a demand of parley, or any other recognized mode

of communication between combatants: for these proceedings are conformable to known Laws of War, and tend to the termination of hostilities. But when a general judges of his enemy's intentions by his motions,-the information of neutral persons, intercepted letters, and the like,-he rests, not upon a mutual understanding, but upon his own sagacity and vigilance, in detecting the truth from the appearance. At the same time, the Laws of War allow him to visit, with the utmost severity, any person who intentionally misleads him by false intelligence.

1064 It appears, at first, an inconsistency in the Laws of War that though they do not forbid a general to use Spies, or to tempt the enemy's soldiers to desert, they visit with immediate death any one found engaged in such attempts. But it is to be recollected that in War, the infliction of death is not a punishment, but a means to an end. A general must, from a regard to his own safety and success, make the task of spies and seducers as difficult and dangerous as possible.

1065 By the progress of the Laws of War, from their ancient to their modern forms, much has been done to make Warfare more humane, or, as it is termed, more civilized. In the middle ages, the practice was introduced of sparing the lives of conquered foes, and giving them their liberty, on the payment of ransom. In more recent times, when soldiers yield, they ask for quarter, and are made prisoners of war. Such prisoners are often exchanged between the two hostile parties by a cartel or agreement. And even before a prisoner of war is liberated or exchanged, he often has his liberty allowed him, on giving his parole, or word of honour, that he will not serve as a soldier till the War is ended.

1066 In War, as we have said, the destruction of men is used as means to an end; but every step, in the Laws of War, by which bloodshed and violence are, in their extent, limited to their end, the attainment of just terms of peace, is a gain to humanity. Hence it is to be desired that the Laws of War should condemn that wanton and aimless inhumanity which, as has been mentioned, is often perpetrated in hot blood on the storming of a fortress. It is therefore very satisfactory to find an eminent military writer expressing an opinion, that the plunder of a town after an assault ought to be made criminal by the Articles of War.

1067 In the treatment of Non-combatants especially, the modern Laws of War are more humane than those of ancient times. When an enemy invades the territory of a hostile State, it Napier, History of the War in the Peninsula, Vol. VI. p. 215.

NN

strikes at the State, not at individuals. Its object may be to take permanent possession of the territory on the part of its own State; but at any rate, its operations suppress and exclude the authority of the hostile State; and thus do violence to it, as a State. Hence, the invading army, so far as it succeeds, supersedes the higher functions of the State in the invaded country. It respects private property; but it assumes the right of taxation, and exercises it, as in a case of exigency, by levying a heavy Contribution. If the inhabitants pay this contribution, by the Laws of War they are not to be further molested; and are to be protected in the exercise of agriculture, trade, and art. In such cases, the usual Tribunals are, to some extent, superseded by Military Law; because, as we have said, the invading Army assumes the functions of the invaded state.

1068 In War, though Private Property is respected on land, it is not spared at Sea. Merchant-vessels, and their freight, belonging to citizens of hostile States, become the prize of their Captors. There is an evident reason for this difference of the Laws of War, on Land and on Sea; for a merchant's vessel at Sea is not under the protection of the State, in the same manner as his warehouse on land. To make prize of a merchant-ship, is an obvious way of showing that its own State is unable to protect it at sea; and thus, is a mode of attacking the State. It has sometimes been proposed that, in time of war, Private Property should be respected at sea, as well as on land; but there are great difficulties in carrying such a Rule into effect*. Conventions have, however, sometimes been made between nations to this effect.

1069 On the other hand, States often grant to private persons, who are willing to fit out a ship at their own expense, Letters of Marque, authorizing them to carry on warlike operations against the enemy. Such persons are called Privateers. Such authority is sometimes given under the name of Reprisals, as a means of obtaining redress for private wrongs. Such practices make a kind of partisan warfare at sea.

1070 In many other cases, as well as in that of merchants, the fortune of non-combatants is inextricably mixed up with that of the combatants; thus, when a town is besieged, the inhabitants necessarily suffer by the attempts which the besiegers make to

Manning, Law of Nations, B. III. c. iv. In the course of the present year (1854) additional mitigations of the Laws of War, as regards Naval Captures and Fri

vateers, have been announced by England, France and America. I have given some account of these in the Supplement, Chapter v.

overpower the garrison. And sometimes the greatest weight of the misery thus produced may fall upon the peaceable inhabitants; as for instance, when a town is reduced to yield by famine. The horrour excited by such cases, has led to the suggestion, that it should be one of the Laws of War that all non-combatants should be allowed to go out of a blockaded town; and that the general who should refuse to let them pass should be regarded in the same light as one who should murder his prisoners, or should be in the habit of butchering women and children".

1071 In order that countries which are the seat of War may enjoy the advantage of the Laws of civilized warfare, it is necessary that they themselves should attend strictly to the distinction of Combatants and Non-combatants. If the inhabitants of an invaded country carry on what is called a guerilla or partisan warfare against the invaders; the inhabitants, individually, destroying them and their means of action, in any way that they can; such a country cannot be treated according to the more humane Laws of War; for the inhabitants themselves destroy the foundation of such Laws, the distinction of Combatants and Non-combatants. And this restriction need not interfere with the patriotic zeal which the inhabitants feel, to repel the invaders. For they may enlist in the organized army of their own country; and supply the Government with resourses for its defense to the utmost of their power.

1072 It may be asked, whether, on these principles, the Laws of War allow the bombardment of an undefended town, or the laying waste a province with fire and sword. Such proceedings are condemned as odious by international jurists+; who, however, do not venture to pronounce them to be violations of the Rights of War. It is evident that, like destroying ships at sea, such acts show that the suffering State cannot defend its subjects. But they belong to a savage and cruel form of war, which all humane and civilized men must desire to see utterly abrogated.

As War has its Laws, it has also its Formalities, which are requisite as a justification of warlike acts. It ought to be preceded by a Demand of Redress, and begun by a Declaration of War. This formality the Romans called Clarigatio. When war has been declared, Neutrals have not a Right to carry Munitions of War to belligerents: such commodities then become Contraband of War. And when a place has been declared in a state of BlockArnold, Lectures on History, Lect. IV. p. 220. + Vattel, Book III. § 169.