Assassination
Sir,—It was reported a few days ago that the Natal Government had offered a reward for Bambaata, dead or alive. I have waited for a statement that no offer of the kind had been made, or that it had been made by some over-zealous official, whose act had been disavowed. No such statement has appeared. On the contrary, we read that "the price placed upon the rebel's head has excited native cupidity." It may therefore be desirable to point out that what is alleged to have been done is opposed to the customs of warfare, whether against foreign enemies or rebels.
By Art. 28 (b) of The Hague Regulations, "it is especially prohibited to kill or wound treacherously individuals belonging to the hostile nation or army": words which, one cannot doubt, would include not only assassination of individuals, but also, by implication, any offer for an individual "dead or alive." The Regulations are, of course, technically binding only between signatories of the convention to which they are appended; but Art. 28 (b) is merely an express enactment of a well-established rule of the law of nations. A recent instance of its application occurred, before the date of The Hague Convention, during [094]operations in the neighbourhood of Suakin. An offer by the British Admiral of a reward for Osman Digna, dead or alive, was, if I mistake not, promptly cancelled and disavowed by the home Government.
The Choice of Means of Injuring
Sir,—The Somaliland debate was sufficient evidence that The Hague Convention "respecting the laws and customs of war on land" is far more talked about than read. Colonel Cobbe had, it appears, complained of the defective stopping power, as against the foes whom he was encountering, of the Lee-Metford bullet. It is the old story that wounds inflicted by this bullet cannot be relied on to check the onrush of a hardy and fanatical savage, though they may ultimately result in his death. Whereupon arises, on the one hand, the demand for a more effective projectile, and, on the other hand, the cry that the proposed substitute is condemned by "the universal consent of Christendom"; or, in particular, "by the Convention of The Hague," which, as was correctly stated by Mr. Lee, prohibits only the use of arms which cause superfluous injury.
You print to-day two letters enforcing the view of the inefficiency against savages of the ordinary service bullet. Perhaps you will find space for a few words upon the question whether the employment for this purpose of a severer form of projectile, such as the Dum Dum bullet, would be a contravention of the "laws of war."
The law of the subject, as embodied in general international [095]national agreements, is to be found in four paragraphs; to which, be it observed, nothing is added by the unwritten, or customary, law of nations. Of these paragraphs, which I shall set out textually, three affirm general principles, while the fourth contains a specific prohibition. The general provisions are as follows:—
"The progress of civilisation should have the effect of alleviating as much as possible the calamities of war. The only legitimate object which States should set before themselves during war is to weaken the military forces of the enemy. For this purpose it is sufficient to disable the greatest possible number of men. This object would be exceeded by the employment of arms which would uselessly aggravate the sufferings of disabled men or render their death inevitable. The employment of such arms would, therefore, be contrary to the laws of humanity." (St. Petersburg Declaration, 1868. Preamble.)
"The right of belligerents to adopt means of injuring the enemy is not unlimited." (Hague Règlement, Art. 22.)
"Besides the prohibitions provided by special conventions [the Declaration of St. Petersburg alone answers to this description] it is in particular prohibited (e) to employ arms, projectiles, or material of a nature to cause superfluous injury." (Ib. Art. 23.)
The only special prohibition is that contained in the Declaration of St. Petersburg, by which the contracting parties—
"Engage mutually to renounce, in case of war among themselves, the employment by their military or naval forces of any projectile of a weight below 400 grammes which is either explosive or charged with fulminating or inflammable substances."
No one, so far as I am aware, has any wish to employ a bullet weighing less than 14 oz. which is either explosive or charged as above. So far, therefore, as the generally accepted laws of warfare are concerned, the only question as to the employment of Dum Dum or other expanding bullets is whether they "uselessly aggravate the sufferings of disabled men, or render their death inevitable"; in other words, whether they are "of a nature to cause superfluous injury." It is, however, probable that people who glibly talk of such bullets being "prohibited by The Hague Convention" [096]are hazily reminiscent, not of the Règlement appended to that convention, but of a certain "Declaration," signed by the delegates of many of the Powers represented at The Hague in 1899, to the effect that—
"The contracting Powers renounce the use of bullets which expand or flatten easily in the human body, such as bullets with a hard casing, which does not entirely cover the core, or is pierced with incisions."
To this declaration neither Great Britain nor the United States are parties, and it is waste-paper, except for Powers on whose behalf it has not only been signed, but has also been subsequently ratified.
The Declaration last mentioned (No. 3 of the first Peace Conference) is now something more than waste paper, having been generally ratified. Great Britain, on August 17, 1907, at the fourth plenary sitting of the Second Peace Conference, announced her adhesion to it, as also to the, also generally ratified, Declaration No. 2 of 1899, which forbids the employment of projectiles constructed solely for the diffusion suffocating or harmful gases.
The provisions of Arts. 22 and 23 (e) of the Règlement annexed to The Hague Convention of 1899 "concerning the Laws and Customs of War on Land," as quoted in the letter, have been textually reproduced in Arts. 22 and 23 (e) of the Règlement annexed to the Hague Convention, No. iv. of 1907, on the same subject, ratified by Great Britain on November 27, 1909.
The written agreements as to the choice of weapons may be taken therefore to start from the general principles laid down in the preamble to the Declaration of St. Petersburg (though held by some Powers to err in the direction of liberality), and in Arts. 22 and 23 (e) of The Hague Règlements. The specially prohibited means of destruction are, by the Declaration of St. Petersburg, explosive bullets; by The Hague Règlements, Art. 23 (a) poison or poisoned arms; by The Hague Declarations of 1898, Nos. 2 and 3, "projectiles the sole object of which is the diffusion of asphyxiating or harmful gases," and "bullets which expand or flatten easily in the human body, such as bullets with a hard casing, which does not entirely cover the core, or is pierced with incisions." As to Declaration No. 1, cf. supra, p. 22. It must be remarked that the Declarations of St. Petersburg and of The[097] Hague, unlike The Hague Règlements, apply to war at sea, as well as on land.
Cf. supra, p. 22, and see the author's The Laws of War on Land (written and unwritten), 1908, pp. 40-43.
Sir,—The weightily signed medical protest which you publish this morning will be widely welcomed. The German employment of poisonous gases for military purposes, which the Allies were obliged, reluctantly, though necessarily, to reciprocate, was, of course, prohibited by international Acts to which Germany is a party. Not only does the Declaration of 1899 specifically render unlawful "the use of projectiles the sole object of which is the diffusion of asphyxiating or harmful gases," but the Hague Conventions of 1899 and 1907 both forbid, in general terms, the employment of "(a) poison or poisoned arms," "(c) arms, projectiles, or material of a nature to cause superfluous suffering." The United States, like the rest of the world, are a party to the two Conventions, and would doubtless, after the experiences of recent years, no longer hesitate, as hitherto, to adhere to the Declaration of 1899; in accordance with Admiral Mahan's view at that date, to the effect that "the effect of gas shells has yet to be ascertained," and, in particular, "whether they would be more, or less, merciful than missiles now available."
The prohibition ought, no doubt, to be renewed and, if possible, strengthened; but this is surely not, as your correspondents suggest, work for the Peace Congress. The rules for naval warfare set out in the Declaration of Paris of 1856 form no part of the Treaty of Paris of that year.
I venture to make a similar remark with reference to any discussion by the Peace Congress of "the freedom of the seas," a topic unfortunately included by President Wilson among his "14 points." The peace delegates will be concerned with questions of regroupings of territory, penalties, [098]and reparation. The rehabilitation and revision of international law is a different business, and should be reserved for a subsequent conference.
The Geneva Convention
As far back as the year 1870, the Society for the Prevention of Cruelty to Animals exerted itself to induce both sides in the great war then commencing to make some special provision for relieving, or terminating, the sufferings of horses wounded in battle.
In 1899 it made the same suggestion to the British War Office, but the reply of the Secretary of State was to the effect that "he is informed that soldiers always shoot badly wounded horses after, or during, a battle, whenever they are given time to do so, i.e. whenever the operation does not involve risk to human life. He fears that no more than this can be done unless and until some international convention extends to those who care for wounded animals the same protection for which the Geneva Convention provides in the case of men; and he would suggest that you should turn your efforts in that direction."
Thereupon, Mr. Lawrence Pike, on November 23, addressed to The Times the letter which called forth the letter which follows.
Sir,—Everyone must sympathise with the anxiety felt by Mr. L.W. Pike to diminish the sufferings of horses upon the field of battle. How far any systematic alleviation of such sufferings may be compatible with the exigencies of warfare must be left to the decision of military experts. In the meantime it may be as well to assure Mr. Pike that the Geneva Convention of 1864 has nothing to do with the question, relating, as it does, exclusively to the relief of human suffering. This is equally the case with the second Geneva Convention, which Mr. Pike is right in supposing never to have been ratified. He is also right in supposing [099]that "the terms of the convention are capable of amendment from time to time," but wrong in supposing that they can be amended "by the setting up of precedents." The convention can be amended only by a new convention.
It is not the case that Art. 7 of the convention, which merely confides to commanders-in-chief, under the instructions of their respective Governments, "les détails d'exécution de la présente convention," gives them any authority to extend its scope beyond what is expressly stated to be its object—viz. "l'amélioration du sort des militaires blessés dans les armées en campagne." While, however, the Geneva Convention, does not contemplate the relief of animal suffering, it certainly cannot be "set up as a bar" to the provision of such relief. Commanders who may see their way to neutralising persons engaged in the succour or slaughter of wounded horses would be quite within their powers in entering into temporary agreements for that purpose.
I may add that the "Convention concerning the laws and customs of war on land," prepared by the recent conference at The Hague, and signed on behalf of most Governments, including our own, though not yet ratified, contains a chapter "Des malades et des blessés," which merely states that the obligations of belligerents on this point are governed by the Convention of Geneva of 1864, with such modifications as may be made in it. Among the aspirations (vœux) recorded in the "Acte final" of the conference, is one to the effect that steps may be taken for the assembling of a special conference, having for its object the revision of the Geneva Convention. Should such a conference be assembled Mr. Pike will have an opportunity of addressing it upon the painfully interesting subject which he has brought forward in your columns.
The "second Geneva Convention," above mentioned, was the "Projet d'Articles additionnels," signed on October 20, 1868, but never ratified.
Art. 21 of the Règlement annexed to The Hague Convention of 1899 as to the "Laws and Customs of War on Land," stating that "the obligations of belligerents, with reference to the care of the sick and wounded, are governed by the Convention of Geneva of August 22, 1864, subject to alterations which may be made in it," is now represented by Art. 21 of The Hague Règlement of 1907, which mentions "the Convention of Geneva," without mention of any date, or of possible alterations. The Convention intended in this later Règlement is, of course, that of 1906, for the numerous Powers which have already ratified it, since for them it has superseded that of 1864. The British ratification, of April 16, 1907, was subject to a reservation, the necessity for which was intended to be removed by 1 & 2 Geo. 5, c. 20, as to which, see supra, p. 37. The later is somewhat wider in scope than the earlier Convention, its recital referring to "the sick," as well as to the wounded, and its first article naming not only "les militaires," but also "les autres personnes officiellement attachées aux armées."
With a view to the expected meeting of the Conference by which the Convention was signed in 1906, Mr. Pike and his friends again, in 1903, pressed upon the British Government their desire that the new Convention should extend protection to persons engaged in relieving the sufferings of wounded horses. The British delegates to the Conference, however, who had already been appointed, and were holding meetings in preparation for it, were not prepared to advise the insertion of provisions for this purpose in the revised Convention of Geneva.
"The principles of the Geneva Convention" of 1864 were applied to naval warfare by The Hague Convention No. iii. of 1899, and those of the Geneva Convention of 1906 by The Hague Convention No. x. of 1907 respectively. Both were ratified by Great Britain. Cf. supra, Chapters ii. and iv.
Enemy Property in Occupied Territory
By Art. 55 of The Hague Règlement of 1899, which reproduces Art. 7 of the Brussels Projet, and is repeated as Art. 55 of the Règlement of 1907: "The occupying State shall regard itself as being only administrator and usufructuary of the public buildings, immoveable property, forests and agricultural undertakings belonging to the hostile State [101]and situated in the hostile country. It must protect the substance of these properties and administer them according to the rules of usufruct."
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."
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."
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.
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.
Enemy 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.
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.
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."
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.
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.
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.
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.
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?
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:—