Chapter VI · (continued 2)

The following letter touches incidentally upon the description of the rights of an invader over certain kinds of State property in the occupied territory as being those of a "usufructuary."

INTERNATIONAL "USUFRUCT"

Sir,—The terminology of the law of nations has been enriched by a new phrase. We are all getting accustomed to "spheres of influence." We have been meditating for some time past upon the interpretation to be put upon "a lease of sovereign rights." But what is an international "usufruct"? The word has, of course, a perfectly ascertained sense in Roman law and its derivatives; but it has been hitherto employed, during, perhaps two thousand years, always as a term of private law—i.e. as descriptive of a right enjoyed by one private individual or corporation over the property of another. It is the "ius utendi fruendi, salva rerum substantia." The usufructuary of land not merely has the use of it, but may cut its forests and work its mines, so long as he does not destroy the character of the place as he received it. His interest terminates with his life, though it might also be granted to him for a shorter period. If the grantee be a corporation, in order to protect the outstanding right of the owner an artificial limit is imposed upon the tenure—e.g. in Roman law 100 years, by the French Code 30 years. For details it may suffice to refer to the Institutes of Justinian, II. 4; the Digest, VII. 1; the Code Civil, sects. 573-636; the new German Civil Code, sects. 1030-1089.

It remains to be seen how the conception of "usufruct" is to be imported into the relations of sovereign States, and, more especially, what are to be the relations of the usufructuary to States other than the State under which he holds. It is, of course, quite possible to adapt the terms [102]of Roman private law to international use. "Dominium," "Possessio," "Occupatio," have long been so adapted, but it has yet to be proved that "Usufructus" is equally malleable. I can recall no other use of the term in international discussions than the somewhat rhetorical statement that an invader should consider himself as merely the "usufructuary" of the resources of the country which he is invading; which is no more than to say that he should use them "en bon père de famille." It will be a very different matter to put a strict legal construction upon the grant of the "usufruct" of Port Arthur. By way of homage to the conception of such a grant, as presumably creating at the outside a life-interest, Russia seems to have taken it, in the first instance, only for twenty-five years. One may, however, be pardoned for sharing, with reference to this transaction, the scruples which were felt at Rome as to allowing the grant of a usufruct to a corporation—"periculum enim esse videbatur, ne perpetuus fieret."

I am, Sir, your obedient servant,

T. E. HOLLAND

Oxford, March 30 (1898).

P.S.—It would seem from M. Lehr's Éléments du droit civil Russe that "usufruct" is almost unknown to the law of Russia, though a restricted form of it figures in the code of the Baltic provinces.

It is certain that, apart from general conventions, international law imposes no liability on an invader to pay for requisitioned property or services, or to honour any receipts which he may have given for them.

The Hague Convention of 1899 made no change in this respect. Arts. 51 and 52 of the Règlement annexed to the Convention direct, it is true, that receipts should be given for contributions ("un reçu sera délivré aux contribuables") also for requisitions in kind, if not paid for ("elles seront constatées par des reçus"), but these receipts were to be merely evidence that money or goods have been taken, and it was left an open question, by whom, if at all, compensation was to be made or the losses thus established.

The Règlement of 1907 is more liberal than that of 1899 with reference [103]to requisitioned property (though not with reference to contributions). By the new Art. 52, "supplies furnished in kind shall be paid for, so far as possible, on the spot. If not, they shall be vouched for (constatées) by receipts, and payment of the sums due shall be made as soon as may be." The Hague Convention mentioned in the following letter is, of course, that of 1899.

REQUISITIONS IN WARFARE

Sir,—A few words of explanation may not be out of place with reference to a topic touched upon last night in the House of Commons—viz. the liability of the British Government to pay for stock requisitioned during the late war from private enemy owners. It should be clearly understood that no such liability is imposed by international law. The commander of invading forces may, for valid reasons of his own, pay cash for any property which he takes, and, if he does not do so, is nowadays expected to give receipts for it. These receipts are, however, not in the nature of evidence of a contract to pay for the goods. They are intended merely to constater the fact that the goods have been requisitioned, with a view to any indemnity which may eventually be granted to the sufferers by their own Government. What steps should be taken by a Government towards indemnifying enemies who have subsequently become its subjects, as is now happily the case in South Africa, is a question not of international law, but of grace and favour.

An article in the current number of the Review of Reviews, to which my attention has just been called, contains some extraordinary statements upon the topic under discussion. The uninformed public is assured that "we owe the Boers payment in full for all the devastation which we have inflicted upon their private property ... it is our plain legal obligation, from the point of view of international law, to pay it to the last farthing." Then The Hague Convention is invoked as permitting interference with private [104]property "only on condition that it is paid for in cash by the conqueror, and, if that is not possible at the moment, he must in every case give a receipt, which he must discharge at the conclusion of hostilities." There is no such provision as to honouring receipts in this much-misquoted convention.

Your obedient servant,

T. E. HOLLAND

Oxford, July 30 (1962).

SECTION 12

Enemy Property at Sea

PRIVATE PROPERTY AT SEA

Sir,—The letter which you print this morning from Mr. Charles Stewart can hardly be taken as a serious contribution to the discussion of a question which has occupied for many years the attention of politicians, international lawyers, shipowners, traders, and naval experts. Mr. Stewart actually thinks that Lord Sydenham's argument to the effect that "the fear of the severe economic strain which must result from the stoppage of a great commerce is a factor which makes for peace" may be fairly paraphrased as advice to "retain the practice because it is so barbarous that it will sicken the enemy of warfare." He goes on to say that this argument "would apply equally to the poisoning of wells and to the use of explosive bullets."

It may be worth while to contrast with the attitude of a writer who seems unable to distinguish between economic pressure and physical cruelty that taken up by a competent body, the large majority of the members of which belong to nations which, for various reasons, incline to the abolition of the usage in question. The Institut de Droit International, encouraged by the weight attached to its Manual[105] of the Law of War on Land by the first and second Peace Conferences, has been, for some time past, working upon a Manual of the Laws of War at Sea. At its Christiania meeting in 1912 the Institut, while maintaining the previously expressed opinion of a majority of its members in favour of a change in the law, recognised that such a change has not yet come to pass, and that, till it occurs, regulations for the exercise of capture are indispensable, and directed the committee charged with the topic to draft rules presupposing the right of capture, and other rules to be applied should the right be hereafter surrendered (Annuaire, t. xxv., p. 602).

The committee accordingly prepared a draft, framed in accordance with the existing practice, to the discussion of which the Institut devoted the whole of its recent session at Oxford, eventually giving its imprimatur to a Manual of the law of maritime warfare, as between the belligerents, in 116 articles. As opportunity serves, the committee will prepare a second draft, proceeding upon the hypothesis that the right of capturing private property at sea has been surrendered, which, in its turn, will be debated, word for word, by the Institut de Droit International.

I am, Sir, your obedient servant,

T. E. HOLLAND

Oxford, November 4 (1913).

SECTION 13

Martial Law

The first of the letters which follow has reference to the case of two Boer prisoners who, having taken the oath of neutrality on the British occupation of Pretoria, attempted to escape from the town. Both were armed, and one of them fired upon and wounded a sentinel who called upon them to stop. They were tried by court-martial, condemned to death, and shot on June 11, 1901. The Hague Convention quoted in the letter is that of 1899, but the same Art. 8 figures in the Convention of 1907.[106]

The second and third of these letters relate to a question of English public law, growing out of the exercise of martial law in British territory in time of war. One Marais, accused of having contravened the martial law regulations of May 1, 1901, was imprisoned in Cape Colony by military authority, and the Supreme Court at the Cape held that it had no authority to order his release. The Privy Council refused an application for leave to appeal against this decision, saying that "no doubt has ever existed that, when war actually prevails, the ordinary courts have no jurisdiction over the action of the military authorities"; adding that "the framers of the Petition of Right knew well what they meant when they made a condition of peace the ground of the illegality of unconstitutional procedure" (Ex parte D.F. Marais, [1902] A.C. 109). Thereupon arose a discussion as to the extent of the prohibition of the exercise of martial law contained in the Petition of Right; and Mr. Edward Jenks, in letters to The Times of December 27, 1901, and January 4, 1902, maintained that the prohibition in question was not confined to time of peace.

The last letter deals with the true character of a Proclamation of Martial Law, and was suggested by the refusal of the Privy Council, on April 2, 1906, to grant leave to appeal from sentences passed in Natal by court-martial, in respect of acts committed on February 8, 1906, whereby retrospective effect had, it was alleged, been given to a proclamation not issued till the day after the acts were committed, See Mcomini Mzinelwe and Wanda v. H.E. the Governor and the A.G. for the Colony of Natal, 22 Times Law Reports, 413.

THE EXECUTIONS AT PRETORIA

Sir,—No doubt is possible that by international law, as probably by every system of national law, all necessary means, including shooting, may be employed to prevent the escape of a prisoner of war. The question raised by the recent occurrence at Pretoria is, however, a different one—viz. What are the circumstances in connection with an attempt to escape which justify execution after trial by court-martial of the persons concerned in it? This question may well be dealt with a part from the facts, as to which we are as yet imperfectly informed, which have called for Mr. Winston Churchill's letter. With the arguments of that letter I in the main agree, but should not attach so much importance as Mr. Churchill appears to do to a chapter of [107]the British Manual of Military Law, which, though included in a Government publication, cannot be taken as official, since it is expressly stated "to have no official authority" and to "express only the opinions of the compiler, as drawn from the authorities cited."

I propose, without comment, to call attention to what may be found upon this subject in conventional International Law, in one or two representative national codes, and in the considered judgment of the leading contemporary international lawyers.

I. The Hague "Convention on the laws and customs of war on land" (ratified by twenty Powers) lays down:—

"ARTICLE 8.—Prisoners of war shall be subject to the laws, regulations, and orders in force in the army of the State into whose hands they have fallen. Any act of insubordination warrants the adoption as regards them of such measures of severity as may be necessary. Escaped prisoners, recaptured before they have succeeded in rejoining their army, or before quitting the territory occupied by the army that captured them, are liable to disciplinary punishment. Prisoners who after succeeding in escaping are again taken prisoners are not liable to any punishment for their previous flight."

The Hague Conference, in adopting this article, adopted also, as an "authentic interpretation" of it, a statement that the indulgence granted to escapes does not apply to such as are accompanied by "special circumstances," of which the instances given are "complot, rébellion, émeute."

"ARTICLE 12.—Any prisoner of war who is liberated on parole and recaptured bearing arms against the Government to which he had pledged his honour, or against the allies of that Government, forfeits his right to be treated as a prisoner of war, and can be put on his trial."

II. The United States Instructions:—

"ARTICLE 77.—A prisoner of war may be shot or otherwise killed in his flight; but neither death nor any other punishment shall be inflicted on him simply for his attempt.... If, however, a conspiracy is discovered, the purpose of which is a united or general escape, the conspirators may be rigorously punished even with death, &c."

"ARTICLE 78.—If prisoners of war, having given no pledge nor made any promise on their honour, forcibly or otherwise, escape, and [108]are captured again in battle, having rejoined their own army, they shall not be punished for their escape."

"ARTICLE 124.—Breaking the parole is punished with death when the person breaking the parole is captured again."

Cf. the French Code de Justice Militaire, Art. 204, and other Continental codes to the same effect.

III. The Manuel des Lois de la guerre sur terre of the Institute of International Law lays down:—

"ARTICLE 68.—Si le fugitif ressaisi ou capturé de nouveau avait donne sa parole de ne pas s'évader, il peut être privé des droits de prisonnier de guerre."

"ARTICLE 78.—Tout prisonnier libéré sur parole et repris portant les armes contre le gouvernement auquel il l'avait donnée, peut être privé des droits de prisonnier de guerre, à moins que, postérieurement à sa liberation, il n'ait été compris dans un cartel d'échange sans conditions."

I am, Sir, your obedient servant,

T. E. HOLLAND

Oxford, June 17 (1901).

THE PETITION OF RIGHT

Sir,—This is, I think, not a convenient time, nor perhaps are your columns the place, for an exhaustive discussion of the interpretation and application of the Petition of Right. It may, however, be just worth while to make the following remarks, for the comfort of any who may have been disquieted by the letter addressed to you by my friend Mr. Jenks:—

1. Although, as is common knowledge, the words "in time of peace," so familiar in the Mutiny Acts from the reign of Queen Anne onwards, do not occur in the Petition, they do occur, over and over again, in the arguments used in the House of Commons by "the framers of the Petition of Right," to employ the phraseology of the judgment recently delivered in the Privy Council by the Lord Chancellor.[109]

2. The prohibition contained in the Petition, so far from being "absolute and unqualified," is perfectly specific. It refers expressly to "Commissions of like nature" with certain Commissions lately issued:—

"By which certain persons have been assigned and appointed Commissioners, with power and authority to proceed within the land, according to the justice of martial law, against such soldiers or mariners, or other dissolute persons joining with them, as should commit any murder, robbery, felony, mutiny, or other outrage or misdemeanour whatsoever, and by such summary course and order as is agreeable to martial law, and is used in armies in time of war, &c."

The text of these Commissions, the revocation of which is demanded by the Petition, is still extant.

3. The Petition neither affirms nor denies the legality of martial law in time of war; although its advocates were agreed that at such a time martial law would be applicable to soldiers.

4. A war carried on at a distance from the English shore as was the war with France in 1628, did not produce such a state of things as was described by the advocates of the Petition as "a time of war." "We have now no army in the field, and it is no time of war," said Mason in the course of the debates. "If the Chancery and Courts of Westminster be shut up, it is time of war, but if the Courts be open, it is otherwise; yet, if war be in any part of the Kingdom, that the Sheriff cannot execute the King's writ, there is tempus belli," said Rolls.

I am, Sir, your obedient servant,

T. E. HOLLAND

Oxford, December 31 (1901).

THE PETITION OF RIGHT

Sir,—In a letter which you allowed me to address to you a few days ago, I dealt with two perfectly distinct topics.

In the first place I pointed out that the words occurring in a recent judgment of the Privy Council, which were cited [110]by Mr. Jenks as a clear example of an assumption "that the Petition of Right, in prohibiting the exercise of martial law, restricted its prohibition to time of peace," imply, as I read them, no assumption as to the meaning of that document, but merely contain an accurate statement of fact as to the line of argument followed by the supporters of the Petition in the House of Commons. Can Mr. Jenks really suppose that in making this remark I was "appealing from the 'text of the Petition' to the debates in Parliament"?

I then proceeded to deal very shortly with the Petition itself, showing that while it neither condemns nor approves of the application of martial law in time of war (see Lord Blackburn's observations in R. v. Eyre), the prohibition contained in its martial law clauses, so far from being "absolute and unqualified," relates exclusively to "commissions of like nature" with certain commissions which had been lately issued (at a time which admittedly, for the purposes of this discussion, was not "a time of war"), the text of which is still preserved, and the character of which is set forth in the Petition itself, as having authorised proceedings within the land, "according to the justice of martial law, against such soldiers or mariners," as also against "such other dissolute persons joining with them," &c. The description of these commissions, be it observed, is not merely introduced into the Petition by way of recital, but is incorporated by express reference into the enacting clause.

Thus much and no more I thought it desirable to say upon these two topics by way of dissent from a letter of Mr. Jenks upon the subject. In a second letter Mr. Jenks rides off into fresh country. I do not propose to follow him into the history of the conferences which took place in May, 1628, after the framing of the Petition of Right, except to remark that what passed at these conferences is irrelevant to the interpretation to be placed upon the Petition, and, if relevant, would be opposed to Mr. Jenks's contention. It is well known that the Lords pressed the Commons to [111]introduce various amendments into the Petition and to add to it the famous reservation of the "sovereign power" of the King. One of the proposed amendments referred, as Mr. Jenks says, to martial law, forbidding its application to "any but soldiers and mariners," or "in time of peace, or when your Majesty's Army is not on foot." The Commons' objection to this seems to have been that it was both unnecessary and obscurely expressed. "Their complaint is against commissions in time of peace." "It may be a time of peace, and yet his Majesty's Army may be on foot, and that martial law was not lawful here in England in time of peace, when the Chancery and other Courts do sit." "They feared that this addition might extend martial law to the trained bands, for the uncertainty thereof." The objections of the Commons were, however, directed not so much to the amendments in detail as to any tampering with the text of the Petition. "They would not alter any part of the Petition" (nor did they, except by expunging two words alleged to be needlessly offensive), still less would they consent to add to it the reservation as to the "sovereign power" of the King.

The story of these abortive conferences, however interesting historically, appears to me to have no bearing upon the legality of martial law, and I have no intention of returning to the subject.

I am, Sir, your obedient servant,

T. E. HOLLAND

Oxford, January 8 (1902).

MARTIAL LAW IN NATAL

Sir,—It seems that in the application made yesterday to the Judicial Committee of the Privy Council, on behalf of Natal natives under sentence of death, much stress was laid upon the argument that a proclamation of martial law cannot have a retrospective application. You will, perhaps, therefore allow me to remind your readers that, so far from [112]the date of the proclamation having any bearing upon the merits of this painful case, the issue of any proclamation of martial law, in a self-governing British colony, neither increases nor diminishes the powers of the military or other authorities to take such steps as they may think proper for the safety of the country. If those steps were properly taken they are covered by the common law; if they have exceeded the necessities of the case they can be covered only by an Act of Indemnity. The proclamation is issued merely, from abundant caution, as a useful warning to those whom it may concern.

This view, I venture to think, cannot now be seriously controverted; and I am glad to find, on turning to Mr. Clode's Military and Martial Law that the passage cited in support of Mr. Jellicoe's contention as to a proclamation having no retroactive application is merely to the effect that this is so, if certain statements, made many years ago in a debate upon the subject, are correct. As to their correctness, or otherwise, Mr. Clode expresses no opinion.

I am, Sir, your obedient servant,

T. E. HOLLAND

SECTION 14

The Naval Bombardment of Open Coast Towns

The four letters which first follow were suggested by the British Naval Manœuvres of 1888, during which operations were supposed to be carried on, by the squadron playing the part of a hostile fleet, which I ventured to assert to be in contravention of international law. Many letters were written by naval men in a contrary sense, and the report of a committee of admirals appointed to consider, among other questions, "the feasibility and expediency of cruisers making raids on an enemy's coasts and unprotected towns for the purpose of levying contributions," was to the effect that "there can be no doubt about the feasibility of such operations by a maritime enemy possessed of sufficient power; and as to the expediency, there can be as little doubt [113]but that any Power at war with Great Britain will adopt every possible means of weakening her enemy; and we know of no means more efficacious for making an enemy feel the pinch of war than by thus destroying his property and touching his pocket." (Parl. Paper, 1889 [c. 5632], pp. 4, 8.) The supposed hostile squadron had, it seems, received express instructions "to attack any port in Great Britain." (See more fully in the writer's Studies in International Law, 1898, p. 96.) The fifth letter was suggested by a Russian protest against alleged Japanese action in 1904.

The subsequent history of this controversy, some account of which will be found at the end of this section, has, it is submitted, established the correctness of the views maintained in it.

NAVAL ATROCITIES

Sir,—I trust we may soon learn on authority whether or no the enemies of this country are conducting naval hostilities in accordance with the rules of civilised warfare. I read with indignation that the Spider has destroyed Greenock; that she announced her intention of "blowing down" Ardrossan; that she has been "shelling the fine marine residences and watering-places in the Vale of Clyde." Can this be true, and was there really any ground for expecting that "a bombardment of the outside coast of the Isle of Wight" would take place last night?

Your obedient servant,

T. E. HOLLAND

Athenæum Club, August 7 (1888).

THE NAVAL MANŒUVRES

Sir,—In a letter which I addressed to you on the 7th inst. I ventured to point out the discrepancy between the proceedings of certain vessels belonging to Admiral Tryon's fleet and the rules of civilised warfare. Your correspondent on board Her Majesty's ship Ajax yesterday told us something of the opinion of the fleet as to the bombardment and ransoming of defenceless seaboard towns, going on to predict that, in a war in which England should be engaged, privateers would again be as plentiful as in the days of[114] Paul Jones, and assuring us that in such a war "not the slightest respect would be paid to old-fashioned treaties, protocols, or other diplomatic documents." Captain James appears, from his letter which you print to-day, to be of the same opinion as the fleet, with reference both to bombardments and to privateers; telling us also in plain language that "the talk about international law is all nonsense."

Two questions are thus raised which seem worthy of serious consideration. First, what are the rules of international law with reference to the bombardment of open towns from the sea (I leave out of consideration the better understood topic of privateering)? Secondly, are future wars likely to be conducted without regard to international law?

1. I need hardly say that I do not, as Captain James supposes, contend "that unfortified towns will never be bombarded or ransomed." International law has never prohibited, though it has attempted to restrict, the bombardment of such towns. Even in 1694 our Government defended the destruction of Dieppe, Havre, and Calais only as a measure of retaliation, and in subsequent naval wars operations of this kind have been more and more carefully limited, till in the Crimean war our cruisers were careful to abstain from doing further damage than was involved in the confiscation or destruction of stores of arms and provisions. The principles involved were carefully considered by the military delegates of all the States of Europe at the Brussels Conference of 1874, and their conclusions, which apply, I conceive, mutatis mutandis, to operations conducted by naval forces against places on land, are as follows:—

"ARTICLE 15.—Fortified places are alone liable to be besieged. Towns, agglomerations of houses, or villages which are open or undefended cannot be attacked or bombarded."

"ARTICLE 16.—But if a town, &c., be defended, the commander of [115]the attacking forces should, before commencing a bombardment, and except in the case of surprise, do all in his power to warn the authorities."

"ARTICLE 40.—As private property should be respected, the enemy will demand from parishes or the inhabitants only such payments and services as are connected with the necessities of war generally acknowledged, in proportion to the resources of the country."

"ARTICLE 41.—The enemy in levying contributions, whether as equivalents for taxes or for payments which should be made in kind, or as fines, will proceed, as far as possible, according to the rules of the distribution and assessment of the taxes in force in the occupied territory. Contributions can be imposed only on the order and on the responsibility of the general in chief."

"ARTICLE 42.—Requisitions shall be made only by the authority of the commandant of the locality occupied."

These conclusions are substantially followed in the chapter on the "Customs of War" contained in the Manual of Military Law issued for the use of officers by the British War Office.

The bombardment of an unfortified town would, I conceive, be lawful—(1) as a punishment for disloyal conduct; (2) in extreme cases, as retaliation for disloyal conduct elsewhere; (3) for the purpose of quelling armed resistance (not as a punishment for resistance when quelled); (4) in case of refusal of reasonable supplies requisitioned, or of a reasonable money contribution in lieu of supplies. It would, I conceive, be unlawful—(1) for the purpose of enforcing a fancy contribution or ransom, such as we were told was exacted from Liverpool; (2) by way of wanton injury to private property, such as was supposed to have been caused in the Clyde and at Folkestone, and a fortiori such as would have resulted from the anticipated shelling during the night-time of the south coast of the Isle of Wight.

2. Is it the case that international law is "all nonsense," and that "when we are at war with an enemy he will do his best to injure us: he will do so in what way he thinks proper, all treaties and all so-called international law [116]notwithstanding"? Are we, with Admiral Aube, to speak of "cette monstrueuse association de mots: les droits de la guerre"? If so, cadit quæstio, and a vast amount of labour has been wasted during the last three centuries. I can only say that such a view of the future is not in accordance with the teachings of the past. The body of accepted usage, supplemented by special conventions, which is known as international law, has, as a matter of fact, exercised, even in time of war, a re staining influence on national conduct. This assertion might be illustrated from the discussions which have arisen during recent wars with reference to the Geneva Conventions to the treatment of the wounded and the St. Petersburg declaration against the use of explosive bullets. The binding obligation of these instruments, which would doubtless be classed by your correspondent with the fleet among "old-fashioned treaties, protocols, and other diplomatic documents," has never been doubted, while each party has eagerly endeavoured to disprove alleged infractions of them.

The naval manœuvres have doubtless taught many lessons of practical seamanship. They will have done good service of another sort if they have brought to the attention of responsible statesmen such questions as those with which I have attempted to deal. It is essential that the country should know the precise extent of the risks to which our seaboard towns will be exposed in time of war, and it is desirable that our naval forces should be warned against any course of action, in their conduct of mimic warfare, which could be cited against us, in case we should ever have to complain of similar action on the part of a real enemy.

Your obedient servant,

T. E. HOLLAND

Oxford, August 18 (1888).

[117]

THE NAVAL MANŒUVRES

Sir,—In my first letter I called attention to certain operations of the Spider and her consorts which seemed to be inspired by no principle beyond that of doing unlimited mischief to the enemy's seaboard. In a second letter I endeavoured to distinguish between the mischief which would and that which would not be regarded as permissible in civilised warfare. The correspondence which has subsequently appeared in your columns has made sufficiently clear the opposition between the view which seems to find favour just now in naval circles and the principles of international law, as I have attempted to define them. The question between my critics and myself is, in effect, whether the mediæval or the modern view as to the treatment of private property is to prevail. According to the former, all such property is liable to be seized or destroyed, in default of a "Brandschatz," or ransom. According to the latter, it is inviolable, subject only to certain well-defined exceptions, among which reasonable requisitions of supplies would be recognised, while demands of money contributions, as such, would not be recognised.

The evidence in favour of the modern view being what I have stated it to be is, indeed, overwhelming; but I should like to call special attention to the Manuel de Droit International à l'Usage des Officiers de l'Armée de Terre, issued by the French Government, as going even further than the Brussels Conference in the restrictions which it imposes upon the levying of requisitions and contributions. The Duke of Wellington, who used to be thought an authority in these matters, wrote in 1844, with reference to a pamphlet in which the Prince de Joinville had advocated depredations on the English coasts:—

"What but the inordinate desire of popularity could have induced [118]a man in his station to write and publish an invitation and provocation to war, to be carried on in a manner such as has been disclaimed by the civilised portions of mankind?"

The naval historian, Mr. Younge, in commenting on the burning of Paita, in Chili, as far back as 1871, for non-compliance with a demand for a money contribution (ultimately reduced to a requisition of provisions for the ships), speaks of it as "worthy only of the most lawless pirate or buccaneer, ... as a singular proof of how completely the principles of civilised warfare were conceived to be confined to Europe."

Such exceptional acts as the burning of Paita, or the bombardment of Valparaiso, mentioned by Mr. Herries, will, of course, occur from time to time. My position is that they are so far stigmatised as barbarous by public opinion that their perpetration in civilised warfare may be regarded as improbable; in other words, that they are forbidden by international law.

It is a further question whether the rules of international law on this point are to be changed or disregarded in future. Do we expect, and are we desirous, that future wars shall be conducted in accordance with buccaneering precedent, or with what has hitherto been the general practice of the nineteenth century? Your naval correspondents incline to revert to buccaneering and thus to the introduction into naval coast operations of a rigour long unknown to the operations of military forces on land; but they do so with a difference. Lord Charles Beresford (writing early in the controversy) asserts the permissibility of ransoming and destroying, without any qualifying expressions; while Admiral de Horsey would apparently only ask "rich" towns for contributions, insisting also that a contribution must be "reasonable," and expressly repudiating any claim to do "wanton injury to property of poor communities, and still less to individuals." In the light of these concessions, I venture to claim Admiral de Horsey's [119]concurrence in my condemnation of most of the doings mentioned in my first letter, although on the whole he ranges himself on the side of the advocates of what I maintain to be a change in the existing law of war. Whether or no the existing law needs revision is a question for politicians and for military and naval experts. It is within my province only to express a hope that the contradiction between existing law and new military necessities (if, indeed, such contradiction exists) will not be solved by a repudiation of all law as "nonsense"; and, further, that, if a change of law is to be effected, it will be done with due deliberation and under a sense of responsibility. It should be remembered that operations conducted with the apparent approval of the highest naval authorities, and letters in The Times from distinguished admirals, are in truth the stuff that public opinion, and in particular that department of public opinion known as "international law," is made of.

The ignorance, by the by, which certain of my critics have displayed of the nature and claims of international law is not a little surprising. Some seem to identify it with treaties; others with "Vattel." Several, having become aware that it is not law of the kind which is enforced by a policeman or a County Court bailiff, have hastened, much exhilarated, to give the world the benefit of their discovery. Most of them are under the impression that it has been concocted by "bookworms," "jurists," "professors," or other "theorists," instead of, as is the fact, mainly by statesmen, diplomatists, prize courts, generals and admirals. This is, however, a wide field, into which I must not stray. I have even avoided the pleasant by-paths of disquisition on contraband, privateering, and the Declaration of Paris generally, into which some of your correspondents have courteously invited me. I fear we are as yet far from having disposed of the comparatively simple question as to the operations which may be [120]properly undertaken by a naval squadron against an undefended seaboard.

I am, your obedient servant,

T. E. HOLLAND

Llanfairfechan, August 27 (1888).

NAVAL BOMBARDMENTS OF UNFORTIFIED PLACES

Sir,—The protest reported to have been lodged by the Russian Government against the bombardment by the Japanese fleet of a quarantine station on the island of San-shan-tao, apart from questions of fact, as to which we have as yet no reliable information, recalls attention to a question of international law of no slight importance—viz. under what, if any, circumstances it is permissible for a naval force to bombard an "open" coast town.

In the first place, it may be hardly necessary to point out the irrelevancy of the reference, alleged to have been made in the Russian Note, to "Article 25 of The Hague Convention." The Convention and the Règlement annexed to it are, of course, exclusively applicable to "la guerre sur terre." Not only, however, would any mention of a naval bombardment have been out of place in that Règlement, but a proposal to bring such action within the scope of its 25th Article, which prohibits "the attack or bombardment of towns, villages, habitations, or buildings which are not defended," was expressly negatived by the Conference of The Hague. It became abundantly clear, during the discussion of this proposal, that the only chance of an agreement being arrived at was that any allusion to maritime warfare should be carefully avoided. It was further ultimately admitted, even by the advocates of the proposal, that the considerations applicable to bombardments by an army and by a naval force respectively are not identical. It was, for instance, urged that an army has means other than those which may alone be [121]available to a fleet for obtaining from an open town absolutely needful supplies. The Hague Conference, therefore, left the matter where it found it, recording, however, among its "pious wishes" (vœux) one to the effect "that the proposal to regulate the question of the bombardment of ports, towns, and villages by a naval force should be referred for examination to a future conference."

The topic is not a new one. You, Sir, allowed me to raise it in your columns with reference to the naval manœuvres of 1888, when a controversy ensued which disclosed the existence of a considerable amount of naval opinion in favour of practices which I ventured to think in contravention of international law. It was also thoroughly debated in 1896 at the Venice meeting of the Institut de Droit International upon a report drafted by myself, as chairman of a committee appointed a year previously. This report lays down that the restrictions placed by international law upon bombardments on land apply also to those effected from the sea, except that such operations are lawful for a naval force when undertaken with a view to (1) obtaining supplies of which it is in need; (2) destroying munitions of war or warships which may be in a port; (3) punishing, by way of reprisal, violations by the enemy of the laws of war. Bombardments for the purpose of exacting a ransom or of putting pressure upon the hostile Power by injury to peaceful individuals or their property were to be unlawful. The views of the committee were, in substance, adopted by the Institut, with the omission only of the paragraph allowing bombardment by way of reprisals.

I am, Sir, your obedient servant,

T. E. HOLLAND

Oxford, April 2 (1904).

The "Hague Conference" and "Hague Convention" to which reference was made in the last of these letters were, of course, those of 1899.

For the action taken by the Institut de Droit International in 1895 [122]and 1896, on the initiative of the present writer, see the Annuaire de l'Institut, t. xiv p. 295, t. xv. pp. 145-151, 309, 317; and his Studies in International Law, pp. 106-111. See also, at p. 104 of the same work, an opinion given by him to the Chevalier Tindal as to the liability of The Hague to be bombarded.

The later growth of opinion has been in accordance with the views maintained by the writer of these letters, and with the Rapport drafted by him for the Institut. The Hague Conference of 1899, though unable to discuss the subject, had registered a væu "that the proposal to regulate the question of the bombardment of ports, towns and villages by a naval force may be referred for examination to a future Conference." See Parl. Paper, Miscell. No. 1 (1889), pp. 139, 146, 162, 165, 258, 283. At the Conference of 1907 a Convention, No. ix., was accordingly signed and generally ratified, notably by Germany and Great Britain, Art. 1 of which prohibits "the bombardment by naval forces of ports towns, villages, houses, or buildings which are not defended," Germany, France, Great Britain and Japan dissenting from the second paragraph of this article, which explains that a place is not to be considered to be defended merely because it is protected by submarine contact-mines. Bombardment is, however, permitted, by Art. 2, of places which are, in fact, military or naval bases, and, by Arts. 3 and 4, of places which refuse to comply with reasonable requisitions for food needed by the fleet, though not for refusal of money contributions. The Acte Final of the Conference further registers a væu that "the Powers should, in all cases, apply, as far as possible, to war at sea the principles of the Convention concerning the laws and customs of war on land." (Parl. Paper, Miscell. No. 1 (1908), p. 30.) This Convention, No. iv. of 1907, in Art. 25 of the Règlement annexed to it, lays down that "the attack or bombardment, by whatsoever means, of towns, villages, habitations, or buildings which are not defended is prohibited."

The British Government had, in 1907, so far departed from the Admiralty views of 1888 as to instruct their delegates to the Conference of that year to the effect that "the Government consider that the objection, on humanitarian grounds, to the bombardment of unfortified towns is too strong to justify a resort to that measure, even though it may be permissible under the abstract doctrines of international law [?]. They wish it, however, to be clearly understood that any general prohibition of such practice must not be held to apply to such operations as the bombardment of towns or places used as bases or storehouses of naval or military equipment or supply, or ports containing fighting ships, and that the landing of troops, or anything partaking of the character of a military or naval operation, is also not covered."[123]

It is hardly necessary to chronicle the indignation aroused by the raids upon undefended coast towns carried out by German cruisers during the war of 1914, in violation of modern International Law and notwithstanding the German ratification of Convention No. ix. of 1907.

SECTION 15

Belligerent Reprisals

REPRISALS

Sir,—The controversy as to the legitimacy of the recent attack on Freiburg tends to stray into irrelevancies. If the attack was made upon barracks or troop trains no one would surely criticise what is of everyday occurrence, although not unlikely to cause incidentally death or injury to innocent persons. There seems, however, to be no reason for supposing that such military objects were in view, or that our aeroplanes were instructed to confine their activity, as far as possible, to the attainment of such objects. We must assume, for any useful discussion of the question raised, that the operation was deliberately intended to result in injury to the property and persons of civilian inhabitants, not, of course, by way of vengeance, but by way of reprisal—i.e. with the practical object of inducing the enemy to abstain in the future from his habitually practised illegal barbarities. Such reprisals, as is to-day so well explained by your correspondent "Jurist," are no violations of international law. Objections might, of course, be made to them as unlikely to produce their hoped-for effect, or as repugnant to our feelings of humanity or honour. They are not illegal.

I am, Sir, your obedient servant,

T. E. HOLLAND

Oxford, May 4 (1917).

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REPRISALS

Sir,—If my friend Sir Edward Clarke will glance again at my letter of Monday, he will, I think, cease to be surprised that it contains no answer to his censure from an ethical standpoint of our treatment of Freiburg. My object was merely to indicate the desirability of keeping the question whether acts of the kind are in violation of international law (which I answered in the negative) distinct from questions, which I catalogued, as to their practical inutility, with which some of your correspondents have occupied themselves, or their repugnancy to feelings of honour and humanity with which Sir Edward has dealt exclusively. Any discussion of political expediency or of high morals would have been beside my purpose.

It is curious that Sir Herbert Stephen should to-day speak of my letter of the 7th as a defence of the aerial bombardment of Freiburg. It neither attacked nor defended the bombardment, but, solely in the interests of clear thinking, indicated the desirability of keeping distinct the three points of view from which the topic may be regarded, viz.: (1) of international law; (2) of practical utility; (3) of morality and honour.

I am, Sir, your obedient servant,

T. E. HOLLAND

Oxford, May 9 (1917).

SECTION 16

Peace

UNDESIRABLE PEACE TALK

Sir,—There has been more than enough of premature discussion by groups of well-meaning amateurs, not unfrequently wirepulled by influences hostile to this country, [125]with reference to the terms of the treaty of peace by which the world-war now raging will be brought to a close.

Movements of the kind have culminated in the action of a body rejoicing in the somewhat cumbrous title of the "International Central Organisation for a Durable Peace," which is inviting members of about fifty societies, of very varying degrees of competence, to a cosmopolitan meeting, to be held at Berne in December next. Lest the unwary should be beguiled into having anything to do with the plausible offer made to them that they should, there and then, assist in compiling "a scientific dossier, containing material that will be of vast importance to the diplomats who may be chosen to participate in the peace congress itself," it may be worth while to call attention to the composition of the executive committee by which the invitations are issued, and to its "minimum programme."

Of the members of this committee (of thirteen), on which Great Britain is represented only by Mr. Lowes Dickenson (mistakenly described as a Cambridge Professor), and America only by Mrs. Andrews, of Boston, the best known are Professors Lammasch, of Vienna, and Schücking, of Marburg. The "minimum programme" demands, inter alia, "equal rights for all nations in the colonies, &c.," of the Powers; submission of all disputes to "pacific procedure," joint action by the Powers against any one of them resorting to military measures, rather than to such procedure; and that "the right of prize shall be abolished, and the freedom of the seas shall be guaranteed." The provenance of this "minimum programme" is sufficiently obvious. What is likely to be the character of such a "maximum programme" as will doubtless be aimed at by the proposed gathering?

I am, Sir, your obedient servant,

T. E. HOLLAND

Oxford, October 16 (1915).

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