that other dies before his liberty has been attained, it is said that the survivor is bound to return to his prison! No civilised nation would now impose such conditions.1

contracts

§ 26. Contracts of ransom, like all other agreements Suits on arising jure belli, and lawfully entered into between belligerents, of ransom suspend the character of enemy, so far as respects the parties to the contract. There can, therefore, be no just reason why the captor should not bring suit directly on the ransom bill. And such appears to be the practice in the maritime courts of the European continent. The English courts, however, have decided that the subject of an enemy is not permitted to sue in the British courts of justice, in his own proper person, for the payment of a ransom, on the technical objection of the want of a persona standi in judicio, but that the payment could be forced by an action brought by the imprisoned hostage in the courts of his own country for the recovery of his freedom. This technical objection is not based on principle, nor supported by reason, and the decision has not the sanction of general usage. 'The effect of this contract,' says Wheaton, 'like that of every other which may be lawfully entered into between belligerents, is to suspend the character of enemy, so far as respects the parties to the ransom bill; and, consequently, the technical objection of the want of a persona standi in judicio cannot, on principle, prevent a suit being brought by the captor directly on the ransom bill.' Lord Mansfield considered this contract as worthy to be sustained by sound morality and good policy, and as governed by the law of nations and the eternal rules of justice. Licenses to trade, which properly belong to commercia belli, will be discussed in a separate chapter.2

§ 27. As flags of truce are sometimes sent from the enemy Flags of to forces in position, or on the march, or in action, nominally

1 Vattel, Droit des Gens, liv. iii. ch. xvii. §§ 278-286; Kent, Com. on Am. Law, vol. i. p. 107.

Hostages were taken, during the Franco-German War, 1870, in districts theoretically, but not practically, occupied. The mayor of Neufchâtel and his adjunct, for instance, were made hostages for having allowed the arrest of some provision dealers engaged in supplying the German army. As a rule, where a fine was imposed on a town, and not paid, these two chief officials were kept in custody or under surveillance, until the money was forthcoming.

2 Wheaton, Elem. Int. Law, pt. iv. ch. ii. § 28; Anthon v. Fisher, Doug. R., 649, note; the 'Hoop,' 1 Rob. R., 169; Corun v. Blackburn, 1 Doug. R., 641; Ricard v. Bettenham, 3 Burr. R., 1734.

truce

for making some convention, as for a suspension of arms, but really with the design of gaining information, it is proper that restrictions should be placed upon such use. Thus, if sent to an army in position, the bearer of such flag should never be allowed to pass the outer line of sentinels, nor even to approach within the range of their guns, without permission. If warned away, and he should not instantly depart, he may be fired on. Similar precautions may be taken by an army on the march. After the battle of Montebello, 1859, the French refused to receive flags of truce from the Austrian lines; but this was essential in order to conceal some manœuvres. If the flag proceeds from the enemy's lines during a battle, the ranks which it leaves must halt and cease their fire. When the bearer displays his flag, he will be signalled by the opposing force, either to advance, or to retire; if the former, the forces he approaches will cease firing; if the latter, he must instantly retire; for, if he should not, he may be fired upon.1

Conference of

THE CONFERENCE OF BRUSSELS, 1874.

Rules of military warfare were proposed at the Brussels Conference, 1874, which was attended by delegates from Germany, Austria, Belgium, Brussels, Denmark, France, Great Britain, Greece, Italy, the Netherlands, Portugal, Russia, Spain, Switzerland, Sweden, and Turkey; but they have not yet been, and probably never will be, adopted by any nation. The United States was not represented.

1874

A brief review of some of the most striking differences of opinion may be of interest.

The first section of the first chapter occasioned an argument as to the meaning of 'occupation,' in the first article of the Project, which provided that I. The occupation by the enemy of a part of the territory of a State with which he is at war suspends, ipso facto, the authority of the legal power of the latter, and substitutes in its place the military authority of the occupying State.' The German view was, that occupation is not altogether of the same character as a blockade, which is effective only when it is practically carried out. It does not always manifest itself by visible signs. If occupation is said to exist only where the military power is visible, insurrections are provoked, and the inhabitants suffer in consequence. A town left without troops must still be considered occupied, and any rising would be severely punished. Generally speaking,

1 Scott, Military Dic., p. 304.

In 1870 the Bishop of Strasburg, under a flag of truce, endeavoured to obtain permission from General Werder for the women and children to leave that town, but he was stopped at the outposts and informed that his application would be in vain. Eventually, on the arrival of the delegates from Switzerland, 1,400 old men, women, and children were allowed to leave for that country. (Edwards, Germans in France.)

the occupying power is established as soon as the population is disarmed, or even when the country is traversed by flying columns. The Russian view was that the discussion turned upon the word 'territory.' This was a general expression which must be interpreted liberally (interpréter largement); a province could not be occupied at every point: that was impossible. The view of Sweden and Norway was that greater power must not be accorded to the invader than he actually possesses. Occupation is strictly analogous to blockade, and can only be exercised where it is effective. The occupier must always be in sufficient strength to repress an outbreak. He proves his occupation by this act. An army establishes its occupation when its positions and lines of communications are secured by other corps. If a territory frees itself from the exercise of this authority, it ceases to be occupied. Occupation cannot be presumptive. Modified articles were subsequently adopted, in which an effort was made to reconcile the conflicting views by the use of carefullybalanced expressions. In the opinion of the British Government, the inhabitants of an invaded territory would find in such colourless phrases very inadequate protection from the liberal interpretation of the necessities and possibilities of warfare by a victorious enemy; while the existence of rules, the meaning of which is not distinct and indisputable, could not fail, should they ever be actually promulgated, to give rise to angry controversies which would intensify rather than mitigate the horrors of war.

The second chapter, relating to combatants and non-combatants, showed an equal difference of opinion, eventually smoothed over in a similar manner. The Swiss delegate, in his observations on the article requiring the use of a distinctive badge recognisable at a distance, remarked that a country might rise en masse, as Switzerland had formerly done, to defend itself, without organisation and under no command. The patriotic feeling which led to such a rising could not be kept down ; and although these patriots, if defeated, might not be treated as peaceful citizens, it would not be admitted in advance that they were not belligerents. During the discussion, the Netherlands delegate remarked that if the plan laid down by the German delegate was to be sanctioned by the adoption of those articles which related to belligerents, as drawn up in the Project, it would either have the effect of diminishing the defensive power of the Netherlands, or would render universal and obligatory service necessary, a system to which public opinion in the Netherlands was still opposed. He therefore reserved more than ever the opinion of his Government. The Belgian delegate also made a declaration of reservation. Upon the consideration of section 2, chapter i., 'of the rights of belligerents with reference to private individuals,' and of the military power with respect to private individuals,' the rights of national defence were again warmly urged by the Netherlands, Belgian, and Swiss delegates. According to the view of the Netherlands, no country could possibly admit that, if a population of a de facto occupied district should rise in arms against the established authority of the invader, they should be subjected to the laws of war in force in the occupying army. He admitted that, in time of war, the occupier might occasionally be forced to treat with severity a population which might rise, and that, from its weakness, the population might be forced to submit; but he repudiated the idea of any Government contemplating the delivering over in advance to the justice of the enemy those men who, from patriotic motives, and at their own risk, might expose themselves to all the dangers consequent upon a rising. The delegate from Belgium added that if citizens were to be sacrificed for having attempted to defend their country at the peril of their lives, they need not find inscribed on the post at the foot of which they were about to be shot the

article of a treaty signed by their own Government, which had in advance condemned them to death.

The Swiss delegate, who had previously pointed out that Articles 45 and 9 (respecting conditions to be fulfilled by armed forces) were the cardinal points of the whole Project, declared that two questions, diametrically opposed to each other, were before the Committee: the maxims and interests, on the one hand, of great armies in an enemy's country, which imperatively demand security for their communications and for their rayon of occupation; and, on the other hand, the principles of war and the interests of the invaded, which cannot admit that a population should be handed over as criminals to justice, for having taken up arms against the enemy. A reconciliation of these conflicting interests was, in his opinion, impossible in the case of a levée en masse in an occupied country. In the face of the opposite opinions expressed on the articles under discussion, only a provisional modification of them was accepted by the meeting, omitting those upon which the greatest disagreement had been shown. The Conference was unable to arrive even at a provisional modification of chapter ii., 'of requisitions and contributions,' and, after a variety of views had been expressed, of the most opposite character, the course was adopted of accepting a certain reading in the Project and entering the dissentient opinions in the Protocol.

The articles in section 4, 'on reprisals,' did not attain to this stage. The general feeling seemed to be that occasions on which reprisals of a severe character had been executed were of far too recent a date to allow the practice to be discussed calmly, and the articles were withdrawn ; but in passing over these articles in silence the delegates really evaded one of the principal difficulties inherent in any scheme for the preparation of the rules of war to be observed by belligerents-namely, the question how those rules are to be enforced.

Rules of international law in which the interests of neutrals and belligerents are concerned can be enforced in the last resort by recourse to war. In the case, however, of countries already engaged in hostilities, there will be no means, except by reprisals, for either belligerent to enforce upon the other the observance of any set rules. It is true that, on the outbreak of war, it would be almost certain that one or other belligerent would appeal to neutral nations against some real or supposed infraction of these rules by his opponent. It can, however, scarcely be seriously contemplated that neutral countries should intervene to enforce their observance; and, unless their interference were attended by the exercise of compulsion, in which case the circle of hostilities would soon be indefinitely enlarged, it cannot be supposed that the contending nations would respect it.

The remaining articles of the Project, in the words of Baron Jomini, 'ont été l'objet de rédactions transactionnelles, destinées à concilier toutes les nuances d'opinion.' They relate to the 'means of injuring the enemy,' 'sieges and bombardments,' spies,' 'prisoners of war,' 'bearers of flags of truce,' 'capitulations,'' sick and wounded,' 'armistices,' 'belligerents interned, and wounded treated in neutral territory. Of these the articles on sick and wounded, originally seven in number, have been reduced to one, relegating the whole matter to the operation of the Geneva Convention. The articles relating to capitulations and armistices are also merely formal. Those concerning spies and flags of truce only profess to record existing military practice, as do the articles respecting sieges and bombardments. The twelve articles with regard to prisoners of war appear to be important only in so far as they show the manner in which the original objects of the Project, and the humane intentions of the Emperor of Russia, have become obscured in the attempt to devise general rules

of warfare. The articles themselves may possibly serve some useful purpose in recording the view taken by the delegates at Brussels of some details of the usual treatment of prisoners of war. From the spirit of compromise adopted in framing the articles, as mentioned by Baron Jomini, it is more than probable that a close scrutiny would show that many of the articles admit, or invite, differences of interpretation. It is hardly necessary to point out how serious would be the consequences should this be found to be the case in respect to the articles on belligerents interned and of wounded treated in neutral territory.

THE PROPOSED RULES.

PROJECT OF AN INTERNATIONAL DECLARATION CONCERNING THE LAW AND CUSTOMS OF WAR.

Of Military Authority over the Hostile State.

ART. 1.-A territory is considered as occupied when it is placed actually under the authority of the hostile army. The occupation only extends to those territories where this authority is established and can be exercised.

ART. 2. The authority of the legal power being suspended, and having actually passed into the hands of the occupier, he shall take every step in his power to re-establish and secure, as far as possible, public safety and social order.

ART. 3.-With this object he will maintain the laws which were in force in the country in time of peace, and will only modify, suspend, or replace them by others if necessity obliges him to do so.

ART. 4. The functionaries and officials of every class who at the instance of the occupier consent to continue to perform their duties shall be under his protection. They shall not be dismissed or be liable to summary punishment (punis disciplinairement') unless they fail in fulfilling the obligations they have undertaken, and shall be handed over to justice only if they violate those obligations by unfaithfulness.

ART. 5.-The army of occupation shall only levy such taxes, dues, duties, and tolls as are already established for the benefit of the State, or their equivalent, if it be impossible to collect them, and this shall be done as far as possible in the form of, and according to, existing practice. It shall devote them to defraying the expenses of the administration of the country to the same extent as was obligatory on the legal government.

ART. 6.-The army occupying a territory shall take possession only of the specie, the funds, and marketable securities, &c. (valeurs exigibles), which are the property of the State in its own right, the depôts of arms, means of transport, magazines and supplies, and, in general, all the personal property of the State which is of a nature to aid in carrying on the war. Railway plant, land telegraphs, steam and other vessels not included in cases regulated by maritime law, as well as depôts of arms, and generally every kind of munitions of war, although belonging to companies or private individuals, are to be considered equally as means of a nature to aid in carrying on a war, which_cannot be left by the army of occupation at the disposal of the enemy. Railway plant, land telegraphs, as well as the steam and other vessels above mentioned, shall be restored, and indemnities be regulated on the conclusion of peace.

ART. 7.-The occupying State shall only consider itself in the light of an administrator and usufructuary of the public buildings, real property, forests, and agricultural works belonging to the hostile State, and situated in the occupied territory. It is bound to protect these properties ('fonds