to observe that Corporations may also, under certain circumstances, exercise these Rights. Thus, wars have been carried on out of Europe by Companies or Societies, but these wars have been waged under the direct or implied authority of the sovereign. The right of waging them is a consequence of the power granted by the State to those *companies over particular territories.(s) It has so happened that this [*140] power has been only granted with respect to possessions out of Europe, but there does not appear to be any absolute necessity that it should be so limited.

The East India Companies, as has been already observed,(t) present the most remarkable illustration of the enjoyment of this authority by corporate bodies. But though they have made war and peace in their own name, it is clear that they have done so as delegates of their sovereign; and it may be observed, that the sovereign regulates the distribution of the Booty captured in time of war by the East India troops. (u) XCIV. With respect to the instruments by which the work of destruction and devastation may be carried on, but little can be said by the International Jurist, and that little must be chiefly of a negative char

acter.

The means of carrying on war are either (1) secret or (2) open.

With respect to secret means, those of poison, of assassination, of treachery, are proscribed by Christian and civilized Heathen nations. It was a noble reply of the Roman Senate, even in the days of its corruption, to the offer of a barbarous ally to destroy their enemy by poison: "Si patrandæ neci veneum mitteretur-non fraude neque occultè, sed palam et armatum, populum Romanum suos ulcisci."(x)

Memorable also is the language of our own Lord Bacon upon the same subject :—“ It were," he says, "just and honourable for princes, being in wars together, that however they prosecute their quarrels and debates by arms and acts of hostility; yea, though the wars be such as they pretend, the utter ruin and overthrow of the forces and states one of [*141] *another, yet they so limit their passions as they preserve two things sacred and inviolable,—that is, the life and good name each of other.

"For the wars are no massacres and confusions; but they are the highest trials of right, when princes and States, that acknowledge no superior upon earth, shall put themselves upon the justice of God for the deciding of their controversies by such success as it shall please Him to give on either side. And as in the process of particular pleas between private men, all things ought to be ordered by the rules of civil laws, so in the proceedings of the war nothing ought to be done against the Law of Nations or the Law of Honour; which laws have ever pronounced these two sorts of men, the one conspirators against the persons of princes, the other libellers against their good fame, to be such enemies of common society as are not to be cherished,-no, not by enemies.

(t) Vol. i. s. 122.

(s) Martens, 1. viii. c. iii. s. 2. (u) Case of the Army of the Deccan, 2 Knapp's Privy Council Rep. 103. The question related to booty captured in the Pindaree and Mahratta War, 1817-18. Vide post as to this case and booty generally.

(x) Tacit. Annal., 1. ii. c. lxxxviii.

"For in the examples of times which were less corrupted, we find that when, in the greatest heats and extremities of wars, there have been made offers of murderous and traitorous attempts against the person of a prince to the enemy, they have been not only rejected, but also revealed; and in like manner, when dishonourable mention shall have been made of a prince before an enemy prince by some that have thought therein to please his humour, he has shown himself, contrariwise, utterly distasted therewith, and been ready to contest for the honour of an enemy."(y)

Nevertheless, stratagems by land and sea are not held to violate the laws of War. Thus, the ambush, the disguise of uniform, the false flag are allowable, though it is held that before a naval action be begun the true flag should be hoisted.

With respect to open means, the employment of savages(z) *and [*142] cannibals, the well-known subject of Chatham's vehement censure, the use of poisoned weapons, the wanton devastation of territory, the slaughter and ill-usage of the unarmed and unoffending men, much more of women and children, are universally reprobated. (a)

Yet the use of every instrument of open destruction (though the nonuse of particular kinds of shot has sometimes been the subject of treaties,) the cutting off the resources of the enemy, by stopping the supplies of water, or by devastating the adjacent territory, are certainly legitimate means of harrassing the foe.

XCV. Something must be said with respect to the belligerent's right over the person of (1) the enemy and (2) of the prisoner. (b)

In the middle ages, when the most gross and cruel treatment of prisoners prevailed, the Western(c) and the Eastern Churches contributed, as we have seen, all the mitigation in their power to the exercise of their hostilities; and the Third Council of Lateran (A. D. 1179) forbad Christians to make or to purchase slaves,-a principle which the Eastern Church also enforced about eighty years afterwards (A. D. 1260.)

*1. As to the enemy before he is a prisoner. (d) Soldiers are [*143] not of the unoffending and unarmed class referred to in the last paragraph,—to wound and to kill, to be wounded and to be killed, is a large part of their terrible though necessary vocation in this imperfect

(y) Lord Bacon, Certain Observations upon a Libel published this present year, 1592, vol. v. p. 384. (Ed. B. Montagu.)

(2) "But who is the man that has dared to authorise and associate to our arms the tomahawk and scalping-knife of the savage? To call into civil alliance the wild and inhuman savage of the woods; to delegate to the merciless Indian the defence of disputed rights; and to wage the horrors of his barbarous War against our brethen? These enormities cry aloud for redress and punishment, and, unless done away with, will leave an indelible stain on the national honour." -Speech of Lord Chatham, in Adolphus's Hist. of England, vol. ii. p. 485.

(a) In the War now waged by England, France, and Turkey, against Russia (1854) in the Crimea, the English General refused to abstain from firing upon a particular quarter of Sebastopol, said to be inhabited by women and children, but offered them a free passage beyond the lines of the army. Vattel, 1. iii. c. viii. passim.

(b) Martens, 1. viii. c. iii.
(c) De Sagittar., l. x. c. i.

69, 86.

De Treugâ et Pace, 1. x. c. ii. Pütter, Beitr., pp.

(d) Vattel, 1. iii. c. viii. passim.

and unquiet world. But when, whether by surrender or by capture, they are manifestly without the will or the power to resist, their injury or destruction is brutal, sinful, and indefensible.(e) The conqueror is obliged, by the laws of just War, to spare those who lay down their arms, who ask for quarter, or who lie wounded and helpless,—to put such to death is to commit murder. And those who commit it ought to die by the hand of the hangman, and not of the soldier. It is said that exceptions to this generally admitted rule are furnished by cases in which the preservation of the life of the enemy is inconsistent with your own safety, in which the cruelty of the enemy justifies and necessitates retaliation, in which the crime of the enemy before he becomes defenceless, warrants you in taking his life.

2. As to the enemy after he is a prisoner. Is Henry V. to be condemned, when, after the battle of Agincourt was over, being suddenly attacked by a body of armed peasants, he ordered his numerous prisoners to be put to death, lest the scanty remains of his victorious army should be annihilated? Was Anson justifiable, when, after the capture of the Acapulco galleon, finding that his crew was outnumbered by his prisoners, he consigned the latter to the horrors and dreadful suffering of incarceration in the hold?

These are instances "at which morality is perplexed, reason is staggered, and from which affrighted nature recoils."(ƒ) At least, it may be said, that the clearest evidence of the absolute necessity of selfpreservation is required to palliate them. The *prisoner who

has yielded under conditions, cannot be injured so long as he [*144] fulfils his part of the condition. The prisoner who has made no such condition may be subject to all necessary restraint, proportioned, of course, to his readiness to submit or his intention to escape.

But surely the brave, the wise, and the humane will join in preferring the conduct of Charles XII., when, after the battle of Narva, he disarmed and set at liberty the prisoners who encumbered him, to that conduct of his adversary, who after the battle of Pultowa, sent the prisoners, whose prowess he had experienced and dreaded, into the wilds of Siberia.

The selling(g) prisoners as slaves, is, as Vattel observes, a disgrace to humanity, happily banished from Christendom. (h) Prisoners are ex

(e) "Weder in dem einem noch anderen Falle kann nach Rechtsregeln dem Gefangen noch das Leben gefangen werden; denn jede erlaubte Gewalt endigt wenn der Gegner widerstandloss geworden ist, und berechtiget bloss zu weiteren Sicherungsmitteln."-Heffters, s. 127. Heffters, s. 127. Vide ante, p. 73.

(f) Burke's Works, vol. iv. p. 127.

(g) "of being taken by the insolent foe,

And sold to slavery, and my redemption thence.”—Oth., act 1, sc. 3. Vide ante, vol. i. c. xvii. pp. 317-18, SLAVERY AND THE SLAVE TRADE, and ib. the opinion of Grotius and Bynkershoek.

(h) "Le droit de guerre, disent les jurisconsultes Romains, permet de tuer les prisonniers; en les rendant esclaves, on leur fait grâce de la vie. Nous répondons, avec Brusseau, que 'la guerre n'est point une relation d'homme à homme, mais une relation d'Etat à Etat, dans laquelle les particuliers ne sont ennemis qu'accidentellement, non point comme hommes, ni même comme citoyens, mais comme soldats. La fin de la guerre étant la destruction de l'Etat ennemi, on a droit d'en tuer les défenseurs tant qu'ils ont les armes à la main; mais sitôt qu'ils les posent JULY, 1857.-10

changed in War, are dismissed on their parole, under promise not to carry arms for a certain time, or during the continuance of the War. A commander may make engagements with the enemy to this effect, but such engagements must have their limits; he cannot undertake that his troops shall never bear arms again against the enemy, though he may engage that they shall not do so during the existing War, because the enemy may so long detain them in captivity.(i)

The ransom of prisoners is a practice now much discountenanced, but which cannot be said to be unlawful. If prisoners *are not released during the War, their freedom should always form one of the conditions of the peace which terminates it.

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XCVI. The following classes of persons have no claim to the treatment of prisoners of War:(k)—

1. Bands of marauders, acting without the authority of the sovereign or the order of the military commander,-a class which of course does not include volunteer corps, which have been permitted to attach themselves to the army, and which act under the command of the general of the army.

2. Deserters captured among the enemy's troops.

3. Spies, even if they belong to the regular army.

The most melancholy and affecting instance in modern times of the severity with which this class of persons is treated, is afforded by the well-known history of Major André, of which some further mention will be made hereafter.

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*CHAPTER VIII.

INTERCOURSE BETWEEN ENEMIES DURING WAR.

XCVII. THAT enemies, during the fiercest raging of War, must keep their word and fulfil their plighted faith, is an undeniable maxim of all civilized States; without the religious observance of these obligations, proposals of peace could never be entered upon, and the horrors of War would be perpetual. (a) This word may be pledged, and this faith plighted by implication as well as by express promise. Every belligerent acts upon the presumption that the usages of civilized War will be observed.

Hence, Flags of Truce, Cartels for the exchange of prisoners, Passes, Safe Conducts, are holden sacred by all States.(b)

They are among the "belli commercia," (c) which whoever violates deserves to be treated as a pirate.

et se rendent, cessant d'être ennemis, ils redeviennent simplement hommes, et l'on n'a plus de droit sur leur vie.'"-Rousseau, Contrat Social, 1. i. p. 4.

(i) Vattel, ubi supr.

(k) Heffters, s. 126.

(a) "Inter hostes quæ conveniunt fide aut expressâ aut tacitâ constant."-Grot., 1. iii. c. xx. s. 1, et vide passim, cc. xxi.-xxiv.

(b) Vattel, 1. iii. c. xvii.

(c) Virg. Æn., 1. x. 532.

XCVIII. Some of these usages appear to deserve a fuller consideration. A Safe Conduct, (d) or Passport, is a privilege which ensures safety to those who hold it while passing or repassing from one place to another, or while occupied in the performance of some act specified in, and permitted by the *instrument. Such an instrument must emanate [*147] from the supreme authority upon the spot, that is from the officer in command, to whom the sovereign has for these and other purposes delegated his power, either by express commission or as the natural consequences of other powers.

XCIX. The safe conduct for the person cannot be transferred from one man to another; the abuses which might flow from such a permission are manifest. But the safe conduct for goods admits of their being removed by some person other than their owner, unless there be some specific objection against the person employed.

The extent of the safe conduct must of course be limited by the extent of the command of the grantor; it would not necessarily be limited by territorial boundary, but would, unless otherwise limited, follow the grantee wherever the forces or troops of the grantor are.

C. The grantor of the safe conduct tacitly pledges himself both to protect the grantee and to punish any person subject to his command who may violate it. A safe conduct, strictly construed, does not include more than one person and his reasonable baggage, unless the terms of the instrument expressly admit more.

CI. If a safe conduct be granted for a limited time, its virtue expires with the expiration of this time; but if the grantee has been prevented by sickness, or some cause over which he has no control, from returning within the time, the spirit of the promise of security conveyed in the instrument protects him. The case, as Vattel remarks, (e) is different from that of an enemy coming into a country during a truce: to him no particular promise has been made; he has, at his own peril, taken advantage of a general liberty allowed by the suspension of hostilities; all that has been promised to him is forbearance from hostilities during a certain period; it may be a matter of importance to his enemy that at the expiration *of that period, the War should in all respects freely take its course.

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The safe conduct is granted by the public authorities, therefore the grantor in fact never dies; it does not expire with the death of the particular officer who happened to subscribe it. (f) If the safe conduct contains any such limitation as for such time as we shall think fit, it is of course revocable at the discretion of the grantor; (g) but even without such limitation it can hardly be said to be, under all circumstances, irrevocable; circumstances subsequent to the granting of it may render its revocation imperative, but it must be so revoked that the grantee be allowed time and liberty to depart in safety, though a very urgent and

(d) Jus commeandi extra inducias (Grot., 1. iii. c. xxi. s. 14.) Sauvegarde. Salva guardia. Schutz-oder Salvegardenvertrag. Literæ liberi commeatûs. Passeport, Sauf conduit.

(e) L. iii. c. xvii. p. 274. (f) Grot., 1. iii. c. xxi. s. 20. (g) Ib., s. 22. Vattel, 1. iii. c. xvii. p. 275.