justice and this "great moral lesson," as it was called, had been read? By the very Powers who had, at different times, abetted France in these her unjust wars. Among other articles carried from Paris, under the pretence of restoring them to their rightful owners, were the celebrated Corinthian horses which had been brought from Venice; but how strange an act of justice was this to give them back their statues, but not to restore to them those far more valuable possessions, their territory and their republic, which were, at the same time, wrested from the Venetians! But the reason of this was obvious: the city and the territory of Venice had been transferred to Austria by the treaty of Campo Formio, but the horses had remained the trophy of France; and Austria, whilst she was thus hypocritically reading this moral lesson to nations, not only quietly retained the rich and unjust spoils she had got, but restored these splendid works of art, not to the Venice which had been despoiled of them, the ancient, independent, republican Venice; but to Austrian Venice to that country which, in defiance of all the principles she pretended to be acting on, she still retained as part of her own dominions (d). general penalties. "No general penalty, pecuniary or otherwise, may be inflicted Collective or on the population on account of the acts of individuals for which it cannot be considered as collectively responsible" (e). This Article impliedly sanctions the infliction of pecuniary penalties, or fines, and other penalties on a community for acts and omissions for which it is clearly answerable. These acts and omissions refer not only to breaches of war law, but also to infringements of the occupying commander's proclamations or martial law regulations, as well as to failure to supply legitimate contributions and requisitions. Moreover, where reprisals are permissible collective penalties may be imposed. Occupying commanders have usually held a town or village jointly responsible for damage done to railways, bridges, telegraphs, &c., in the neighbourhood. To saddle a community with responsibility of this kind is unjustifiable, if the damage was committed by unknown individuals without the cognizance of the community, and when the community was unable to prevent the commission of the act. It is the occupant's business to maintain the public order, and, above all, to secure the observance of his martial law (d) Life of Romilly, edited by his sons, vol. ii. p. 404. (e) H. R. Art. 50. Hostages. regulations. It is unlawful to hold innocent persons responsible for the misconduct of others beyond their control. To say that it is a frequent practice is simply to say that an elementary principle of reason and justice is honoured in the breach rather than in the observance. This brings us to the question of hostages, on which there is by no means unanimous agreement. In earlier times hostages were given by one party or by both parties as a guarantee that a convention or a promise would be observed. The practice of seizing hostages has also been adopted by occupying commanders, as a guarantee that the fellow-citizens of the arrested persons would refrain from doing certain things prohibited and would carry out certain things ordered to be done. In 1870-1 the Germans habitually seized hostages, including mayors, councillors, priests, university professors, and other leading citizens, who were to be put to death in case of disobedience on the part of their townsmen. No doubt such measures of intimidation and repression contributed much to the ultimate victory of the invaders. These proceedings were repeated, in a peremptory and systematic manner, by the Germans whenever they entered into occupation of Belgian and French towns and villages during the war of 1914-1915. Many hostages were shot, many were held in oppressive and humiliating confinement, many were carried off to Germany (f). They were treated far worse than prisoners of war. The Hague Rules do not include innocent citizens among the persons liable to be captured as prisoners of war. The Hague Regulations, it is true, have no specific provision with regard to hostages; but their seizure and the presumption of vicarious responsibility as well as the principle of terrorism and application of psychological pressure are contrary to the fundamental conceptions of humanity, conscience, fairness, and justice that are frequently appealed to in the international conventions of the Hague. The practice is akin to that of brigandage and blackmail, and is repugnant to all honourable International law does not sanction the abnegation of honour even in the severest warfare. In the Franco-German war, and in the Anglo-Boer war, too (g), the Germans and the British seized hostages and placed them on military trains as a safeguard against wrecking or damage to bridges, &c. This practice is almost as indefensible as using inhabitants as a shield to the firing men. (f) Cf. Phillipson, Int. Law and the Great War, pp. 238 seq. (9) Cf. White Paper, Proclamations issued by F. M. Lord Roberts in South Africa (Cd. 426), 1900, p. 11. line (h). Besides, it is to be remembered that trains may lawfully be wrecked and bridges damaged by qualified combatants-even if they proceed singly-who manage to cross the lines; so that in such a case the arrested hostages would be made to suffer for the legitimate acts of a belligerent. (h) Several cases of this practice occurred in the Great War; see Phillipson, op. cit. pp. 195, 253, 254. CHAPTER III. LAWFUL WAR. Non-commissioned captors. RIGHTS OF WAR AS BETWEEN ENEMIES-MARITIME WARFARE. THE naval forces of maritime States consist of two classes of vessels: firstly, fighting vessels ('vaisseaux de combat '), including battleships, cruisers, torpedo boats, destroyers, and submarines; and secondly, auxiliary vessels ('vaisseaux auxiliaires'), including colliers, transports, repairing ships, supply ships, despatch boats, &c. At the Hague Conference, 1907, Lord Reay, one of the representatives of Great Britain, proposed such a classification for the acceptance of the other delegates, and suggested that the second class, viz., auxiliary vessels, should be accorded the same belligerent status as regular fighting ships. The obvious objection, however, was made that the proposal was incompatible with the principles of unneutral service. Though this distinction has not received the recognition of written international law, it none the less exists as a fact. It must probably be considered as a remnant of the barbarous practices of those ages when maritime war and piracy were synonymous, that captures made by private armed vessels without a commission, not merely in self-defence, but even by attacking the enemy, were considered lawful, not indeed for the purpose of vesting the enemy's property thus seized in the captors, but to prevent their conduct from being regarded as piratical, either by their own Government or by the other belligerent State (a). Property thus seized was condemned to the Government as prize of war, or, as these captures were technically called, 'droits of admiralty.' The same principle is now applied to the captures made by armed vessels commissioned against one Power, when war breaks out with another; the captures made from that other are condemned, not to the captors, but to the Government (b). (a) See Sir L. Jenkins' Charge to the Grand Jury at the Admiralty Sessions in Southwark, 18th Feb. 1680. Marsden, Adm. Cases, p. 256. (b) Brown, Civ. and Adm. Law, vol. ii. p. 526, Appendix. The Abigail (1801), 4 C. Rob. 72; The Georgiana, 1 The practice of cruising with private armed vessels commis- Privateers. sioned by the State by means of letters of marque, was formerly sanctioned by the laws of every maritime nation, as a legitimate means of destroying the commerce of an enemy. The practice, however, was justly arraigned as liable to gross abuses, as tending to encourage a spirit of lawless depredation, and as being in glaring contradiction to the more mitigated modes of warfare practised by land. Powerful efforts were made by humane and enlightened individuals to suppress it, as inconsistent with the liberal spirit of the age. The treaty negotiated by Franklin, between the United States and Prussia, in 1785, by which it was stipulated that, in case of war, neither Power should commission privateers to depredate upon the commerce of the other, furnished an example worthy of applause and imitation. But this stipulation was not revived on the renewal of the treaty, in 1799; and it was feared that, so long as maritime captures of private property were tolerated, this particular mode of injuring the enemy's commerce would continue to be practised, especially where it afforded the means of countervailing the superiority of the public marine of an enemy (c). The practice of privateering was resorted to during the Abolition of Napoleonic wars. But as the system was liable to gross abuses privateering. and licentious conduct, and involved serious disadvantages in the case of neutral commerce, public opinion gradually turned against it. In 1854, at the commencement of the Crimean war, the allies, Great Britain and France, decided to discontinue the issuing of letters of marque to private owners, and to use in their naval operations against the enemy only public armed vessels. On the conclusion of the war, the Declaration of Paris (signed by the plenipotentiaries of Great Britain, France, Austria, Prussia, Russia, Turkey, and Sardinia) laid down, inter alia, that “privateering is and remains abolished" (Article 1). Nearly all maritime States afterwards expressed their adhesion to the Declaration. The United States was a notable exception; she refused to sign it, unless the right to capture private property other than contraband were abrogated. Nor did Spain and Mexico accept the Article against privateering. During the American Civil War of 1861, Congress authorized the President to issue letters of marque, but he did not avail himself of this power. The Confederates offered their letters of marque to foreigners, but the restrictive legislation (c) Vattel, liv. iii. ch. 15, § 229. Franklin, Works, vol. ii. pp. 447, 530. Edinburgh Review, vol. iii. pp. 13— 15. North American Review, vol. ii. |