Page images

who fills the high office of Lord Chief Justice of England in the nineteenth century, took part personally in the twelfth century in the business of a great International Arbitration. It is thus not without a precedent that Lord Russell of Killowen has deprecated the constitution of permanent tribunals to arbitrate between the nations of the civilised world, for if we are disposed to study a page in the book of the most sagacious of the Kings of England, we shall find that he considered that the business of an International Arbitration might require on the part of the arbitrating State the constitution ad hoc of a tribunal which should comprise its highest judicial functionaries, so as to ensure the competency of the tribunal to deal judicially with the questions brought before it, whether those questions should be questions of law or questions of fact, for although on the occasion of the Spanish Arbitration there was no responsive allegation propounded in contradiction to the case set up by either party in his Act on Petition, both Benedict, of Peterborough, and Roger, of Hoveden, take care to state that the envoys of each King had in their suite a stalwart champion prepared to do battle for his King in case of any fact being brought into dispute between the parties, and of the King of England directing the dispute to be settled by a duel, and Roger of Hoveden mentions the additional fact that the champions brought with them their armour and their horses.

On the other hand, the same King did not think it necessary that a High Court of Judicature should be called upon in every case to arbitrate between nations which might be disposed to settle a dispute about territory by a friendly reference, rather than to have recourse to the arbitrament of the sword. For the same Chroniclers have recorded in the same year the terms of a peace (of Ivry) between King Henry the Second of England and Lewis the Seventh of France, under which the two monarchs agreed to take the Cross together and go on a Crusade to jerusalem, and meanwhile to refer their disputes about Auvergne and other territories to Arbitration, and they forthwith proceeded to nominate the arbiters on behalf of the two monarchs, namely, three Bishops and three Barons on the side of Lewis, and three Bishops and three Barons on the side of King Henry. Sic [mrva licet componere nmgnis.

The lesson which we learn from the above facts in Henry the Second’s reign is that there is no necessity for nations to bind themselves to designate, ti priori, permanent tribunals of Arbitration without any knowledge of the subjects upon which the tribunals may be called upon‘ to arbitrate, so long as their respective Governments are prepared, and by State-Law are empowered, to refer the subject-matter of any important International dispute to the arbitrament of their highest judicial functionaries. The space at my disposal on this occasion will not allow me to discuss this topic at any greater length.

[merged small][graphic]


THE following interesting opinions of the late Count von Moltke, Field Marshal General, and of the late Dr. Bluntschli, Privy Councillor and Professor of Law, on the Laws of War, had for cause the publication of the “ Manual of the Laws of War by Land ” by the Institiit de Droit International in 1880. A copy of this work having been sent to Count von Moltke, he wrote as follows :—

“BERLIN, December nth, 1880.

“ You have been so good as to forward to me the Manual published by the Institilt da Drait International, and you hope for

my approval of it. In the first place, I fully appreciate the philanthropic effort to soften the evils which result from war. Perpetual peace is a dream, and it is not even a beautiful dream. War is an element in the order of the world ordained by God. In it the noblest virtues of mankind are developed; courage and abnegation of self, faithfulness to duty, and the spirit of sacrifice; the soldier gives his life. Without war the world would stagnate, and lose itself in materialism. “I agree entirely with the proposition contained in the introduction that a gradual softening of manner ought to be reflected also in the mode of making war. But I go further, and think the softening of manners can alone bring about this result, which cannot be attained by a codification of the law of war. Every law presupposes an authority to superintend and direct its execution, and international conventions are supported by no such authority. What neutral States would ever take up arms for the sole reason that two Powers being at war the ‘laws of war' had been violated by one or both of the belligerents For offences of that sort there is no earthly judge. Success can come only from the religious, moral education of individuals, and from the feeling of honour and sense of justice of commanders who enforce the law and conform to it, so far as the exceptional circumstances of war permit. This being so, it is necessary to recognise also that increased humanity in the mode of making war has in reality followed upon the gradual softening of manners. Only compare the horrors of the Thirty Years' War with the struggles of modern times. A great step has been made in our own day by the establishment of compulsory military service, which introduces the educated classes into armies. The brutal and violent element is, of course, still there, but it is no longer alone, as once it was. Again, Governments have two powerful means of preventing the worst kind of excesses—strict discipline maintained in time of peace, so that the soldier has become habituated to it, and care on the part of the department which provides for the subsistence of troops in the field. If that care fails, discipline can only be imperfectly maintained. It is

impossible for the soldier who endures sufferings, hardships, fatigues, who meets danger to take only ‘ in proportion to the resources of the country.’ He must take whatever is needful for his existence. We cannot ask him for what is superhuman.

“The greatest kindness in war is to bring it to a speedy conclusion. It should be allowable with that view to employ all methods save those which are absolutely objectionable. I can ‘by no means profess agreement with the Declaration of St. Petersburg when it asserts that ‘the weakening of the military forces of the enemy ’ is the only lawful procedure in War. N0, you must attack all the resources of the enemy‘s Governrnent—its finances, its railways, its stores, and even its prestige. Thus energetically, and yet with a moderation previously unknown, was the late war against France conducted. The issue of the campaign was decided in two monthsfand the fighting did not become embittered till a revolutionary Government, unfortunately for the country, prolonged the war for four more months.

“I am glad to see that the “Manual,” in clear and precise articles, pays more attention to the necessities of war than has been paid by previous attempts. But for Governments to recognise-these rules will not be enough to insure that they shall be observed. It has long been a universally recognised custom of warfare that a flag of truce must not be fired on, and yet we have seen that rule violated on several occasions during the late war. Never will an article learnt by rote persuade soldiers to see a regular enemy (Sections 2-4) in the unorganised population which takes up arms ‘spontaneously’ and puts them in danger of their life at every moment of day and night. Certain requirements of the Manual might be impossible of realisationfor instance the identification of the slain after a great battle. Other requirements would be open to criticism did not the intercalation of such words as ‘if circumstances permit,’ ‘if possible,’ ‘if it can be done,’ ‘if necessary,’ give them an elasticity, but for which the bonds they impose must be broken by inexorable reality. I am of opinion that in war, where everything must be individual, the only Articles which will prove

efficacious are those which are addressed specifically to commanders. Such are the rules of the Manual relating to the wounded, the sick, the surgeons, and medical appliances. The general recognition of the principles, and of those also which relate to prisoners, would mark a distinct step of progress toward the goal pursued with so honourable a persistency by the Institiit de Droit International. “COUNT VON Morxrxe."

To this letter Dr. Bluntschli replied :—

' " Christmas, 1880.

“ I am very grateful for your Excelleucy's detailed and kind statement of opinion as to the Manual of the Laws of War. This statement invites serious reflections. I see in it a testimony of the highest value, of historical importance; and I shall communicate it forthwith to the members of the Institilt de Droit International.

“ For the present I do not think that I can better prove my gratitude to your Excellency than by sketching the reasons which have guided our members, and so indicating the nature of the different views which prevail upon the subject. It is needless to say that the same facts present themselves in a different light and give a different impression as they are looked at from the military or the legal point of view. The difference is diminished, but not removed, when an illustrious general from his elevated position takes also into consideration the great moral and political duties of States, and when, on the other hand, the representatives of the science of international law set themselves to bring legal principles into relation with military necessities. For the man of arms the interest of the safety and success of the army will always take precedence of that of the inoffensive population, while the jurist, convinced that law is the safeguard of all, and especially of the weak against the strong, will ever feel it a duty to secure for private individuals in districts occupied by an enemy the indispensable protection of law. There may be members of the Institut who

« PreviousContinue »