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THE RIGHT TO BOMBARD.—Little as Americans commonly interest themselves in military matters, the events of the great war now in progress in Europe have served to draw general attention to many things with which few but soldiers and students of international law have hitherto concerned themselves. So it is that the laws of war—certain features of them, in particular—are under daily discussion in the newspapers, in the magazines, and in private conversation, while not many months ago there were comparatively few who knew that such laws existed, and fewer still who had any conception of their nature or scope. When the opinions and notions thus offered are so numerous, It would be too much to expect that all, or even a great part, should be based upon any appreciable amount of study or information. And yet, of all branches of law, municipal or international, there are perhaps none so simple, none of which a layman may so readily acquire a fair degree of knowledge. Not but that situations may and do arise in which the best-informed must hesitate to say whether such and such actions are legal—this must happen in every department of the law, however simple its nature and however thoroughly covered by statute and judicial decision. But considering the number of persons, the variety of interests, the extent of territory, affected by the laws of war, the number of doubtful cases that arises is surprisingly small. Then, too, these laws have been so thoroughly codified by the Hague and Geneva conventions, and the code has been so widely published, that on most points anyone who chooses may readily satisfy himself as to the real state of the law, without the necessity of seeking expert opinion.
It is true, however, that the brevity and conciseness of this code, while affording convenience of reference, makes it impossible to do more than state a number of general principles, leaving their application to special cases to be determined by logical inference or by knowledge of the recognized custom of war. Taking as text the provisions of the Hague conferences upon one matter—the bombardment of undefended places—' let us see what the accepted law is.
Article 25 of the Hague Convention respecting the laws and customs of war on land, adoptd in 1907, reads: "The attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited." As article 25 is merely declaratory of previously recognized law, the rule therein stated is binding upon all states, whether they have ratified the convention or not. Practically all, however, have adhered either to this agreement or to the similar one adopted at the first Hague conference, in 1899. It should be noted that there are exceptions to this rule in the case of naval bombardment, which is regulated by another convention.
The object of the prohibition is clear enough. While situations may be imagined In which a real military purpose would be served by the bombardment of an undefended place, such action would usually result only in distress and Injury to noncombatants, without in the least affecting the outcome of a campaign or war. It is therefore possible to lay down a general rule exempting undefended towns at all times from bombardment by land forces. This would be impossible were any appreciable military advantage to be derived from the habitual use of such means. War is not a game, to be played by arbitrary rules designed to insure a close and exciting match. Suffering is inseparable from it. So long as any form of attack is powerfully effective to bring nearer victory and peace, so long will it be used by every belligerent. But when experience has shown that the suffering caused by some measure hitherto used in war is useless, that the success of the war can rarely be hastened thereby, then all nations, for their own sakes and for the sake of humanity, are ready to restrict by so much their liberty of action.
Now, let us look a little more closely at the language of the article in question. The phrase "by whatever means" did not appear in the rule as originally adopted in 1899. That the prohibition was general can hardly be doubted, but out of abundance of caution the words just quoted were inserted in the article of 1907, in order to make it clear that no exception was allowed in the case of aircraft. it application to them is nowhere questioned.
An undefended place, then, is exempt from bombardment. What is an "undefended" place? Many persons evidently take the word to be synonymous with "unfortified." A moment's thought will suffice to reveal the absurdity of such a notion. No one has ever dreamed of allowing the troops of a belligerent to escape from gunfire by the simple expedient of taking sanctuary in an unfortified town. it is clear that a place may be rendered liable to bombardment not only by the existence of permanent or field fortifications surrounding it, but also by the presence of troops. That anything else might conceivably bring a place within the category of defended places seems improbable, but as to the things already mentioned there can be no question. The "Rules of Land Warfare," published for the United States Army in April, 1914, names as certainty included in the class of defended places, (a) a fort or fortified place, (b) a town surrounded by detached forts, (c) a place that is occupied by a military force or through which such force is passing. So also in the British "Manual of Military Law," published in February, 1914, is the statement: "The defended locality need not be fortified, and it may be deemed defended if a military force is in occupation of or marching through it." Both of the works cited, by the way, are of interest in all matters pertaining to the laws of war, published as they were on the very eve of the general European war.
If a town is defended, it can claim no immunity, not even a partial one. The right to bombard at all turns upon the question whether or not the place is defended; if that question is answered in the affirmative, then fire may be directed upon every part of it save only those buildings which are universally recognized as exempt, such as hospitals, churches, and art galleries. Whether fire shall be confined to the neighborhood where troops are known to be is a matter to be determined by the judgment of the attacking commander, as a question of expediency and not of law. Unless he is grossly incompetent he will not waste ammunition in ways from which no military advantage may be hoped for, but the shells that fall among hostile troops are by no means the only ones that may help to decide a war. On this point the British manual says: "No legal duty exists for the attacking force to limit bombardment to the fortifications or defended border only. On the contrary, destruction of private and public buildings by bombardment has always been, and still is, considered lawful, as it is one of the means to impress upon the local authorities the advisability of surrender." And again: "A town which is defended by detached forts, though they are at a distance from it, is liable to bombardment, for the town and forts form an indivisible whole."
What has been said up to this point applies solely to bombardment by land forces. There have always been, and still are, certain differences in the laws, both customary and conventional, governing naval bombardment, partly because of essential differences in conditions which can never be done away with, and partly because in many respects the advance of civilization has been slower to ameliorate the savagery of war on sea than on land. The idea that land forces might bombard an undefended town was long ago utterly abandoned, but until the Hague conference of 1907 there were some who claimed that from the fire of warships no place was exempt. A notable defender of this doctrine was Admiral Aube, who in 1882 wrote that fleets should "turn their power of attack and destruction against all the cities of the coast, fortified or not, peaceful or warlike, burn them, ruin them, and at the very least subject tbem without mercy to ransom." It does not appear that the French government ever sanctioned these views. Still more recently, however, British naval meneuvers have been conducted In which undefended towns were systematically bombarded or put to ransom, the naval view being that such action was legitimate.
This matter was settled by the ninth convention of the second Hague conference, the rule governing bombardment on land being extended, but with certain exceptions, to naval attack. In general, therefore, an undefended place may not be bombarded by warships. Here again it must be borne in mind that undefended and unfortified are words of very different meaning. That the presence of troops is the true criterion is indicated by the express provision that "a place cannot be bombarded solely because automatic submarine contact mines are anchored off the harbor." Unquestionably the mines constitute a most effective defense, but it is. a defense which the bombardment of the town cannot affect in the least degree. If the mines are controlled from casemates on shore, the town's immunity is of course forfeited, for it is then defended not only by mines but also by military personnel.
It has been said that the general rule is now the same on land and sea. But while troops on land may under no conditions bombard a truly undefended place, it is still permissible under certain circumstances for naval forces to do so. One of these cases is perhaps not a true exception to the rule, for it does not authorize fire to be Intentionally directed upon the town itself. This case arises when in an undefended town are ship yards, arsenals, factories for war material, and other works of like character. A land force could destroy these by other means than gunfire; it might well be that a warship or a squadron could not do so. In such a case, the naval commander may destroy them with artillery, but other buildings must be spared so far as possible. This is not in reality, then, a bombardment of the town, though incidental damage may, and probably will, be inflicted.
There remains one genuine exception. If the local authorities, after formal demand made upon them, fail to deliver provisions or supplies required for the immediate necessities of a naval force, bombardment of the town is allowed even though it be undefended in every sense of the word. This does not authorize the holding of a town to ransom, under penalty of bombardment, whether the ransom is demanded in the form of money or supplies; it merely affords a means by which a naval commander can compel the delivery of food, fuel, etc., needed for the immediate consumption of the force under his control.
Enough, probably, has been said to show that it will rarely be difficult to determine whether the bombardment of any particular place is legal or otherwise, provided the facts of the case are known. There are but few doubtful points of law. Nevertheless, cases admitting of a reasonable difference of opinion may still occasionally arise. For example, when coast batteries guard the approaches to a port otherwise immune from bombardment, may fire be directed on the city? If a purely naval attack is in progress, the question is not likely to arise, for the fleet will rarely be able to get within range of the town until after the forts are reduced, when of course the place would become an undefended one. A land force, however, might well get within range of the city while the coast works still held out. The matter must be regarded as still unsettled. In any given case the decision would no doubt depend upon the distance between the coast batteries and the town, but just where the dividing line should be put it is hard to say. The extreme cases are reasonably clear. It is hardly conceivable, for example, that Washington should be regarded as liable to bombardment merely because there are permanently emplaced batteries fifteen miles down the Potomac, to cover the approach by water. Washington might of course be bombarded under present conditions, but it would be because of the troops quartered at Washington Barracks, within the city, and the marines stationed near the navy yard, and not on account of the river forts. As the distance between forts and city is lessened, however, the question becomes a very nice one.
But such disputed points are beyond the scope of the present paper. I have endeavored here only to set out the clear and unquestioned rules of the laws of war, so far as they concern the right to bombard. They do not leave a belligerent free to inflict any injury at pleasure, though we now and then hear assertions very similar to this from those who, realizing that war is always cruelty, assume that therefore cruelty is war. Nor are those any closer to the truth who stigmatize as illegal every bombardment—at least by the belligerent with whom they are not in sympathy—which brings wounds or death to innocent noncombatants.2
2 Thomas Marshall Spaulding, Washington, D. C.
The Promise Of A Physician And Its Breach.—The Supreme Court of Mississippi rules that it is no excuse for non-performance of a contract by a physician to attend one in expected confinement, that to have done so would be to make him "leave a patient who is in a precarious condition to attend one that he had previously contracted to attend." Said the Court:
"The ground upon which it is claimed a peremptory instruction should have been granted to appellant is that it is not incumbent upon 'a doctor to leave a patient who is in a precarious condition to attend one that he had previously contracted to attend.' This proposition, differently expressed, amounts simply to this: If a person assumes obligations to different parties, the performance of which may become incompatible with each other, both parties being entitled in equal right, is it an excuse for a default to one party that both obligations could not be performed, and that the person bound chose to perform his obligation to the other? In Heirn v. McCaughan, 32 Miss. 17, 66 Am. Dec. 588, this question was answered in the negative. Appellant's contract in this respect was without qualification, and the rule is that 'as a man consents to bind himself so shall he be bound.' "i»
The Heart As Demonstrative EviDENCE.-^-In a recent Maine case, in an action on an accident insurance policy, the company offered the heart of the insured as evidence as to whether there was a rupture of the heart before death or a cut after death. The Supreme Court rules that its exclusion was not an abuse of the trial court's discretion, in view of the question whether the rupture or cut was then in the same condition as it was at the first autopsy, and the further question whether nonexperts could judge, a year and a half after insured's death, whether the wound was caused by a rupture before death or by a cut after death.
"The defendant contends that as the prime question at the trial was whether there was a rupture of the heart before death, or a cut upon the heart after death, the heart itself would be the best evidence of the truth. It would be good evidence it must be conceded, if the heart remained in the same condition as it was at death, and would be properly admissible, if the jurors, who were nonexperts, were competent to judge of a question, the answer to which must depend to a considerable degree upon expert knowledge. ,
Whether demonstrative evidence of this character should be admitted depends, within well-defined limits, upon the discretion of the presiding justice. And, unless the discretion is abused, exceptions do not lie. Ordinarily a preliminary question is whether the thing offered is in substantially the same condition it was at the time in question. The determination of this fact is for the justice, and to his finding exceptions do not lie. This is so well settled that the citation of authorities is unnecessary. In this case the justice in excluding the heart gave no reason. We must therefore inquire whether there was any good reason. We think there was. It is complained that he excluded the heart without examining it himself. But he had listened to reams of testimony about It. It is evident that there was a bona fide dispute as to whether the heart was in
io Hood v. Moffett, 69 So. 664. 33° VOL. L. 29 *