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George. General Prevost, under the express direction of Lord Bathurst, ordered the close imprisonment of double the number of commissioned and non-commissioned United States officers. This was followed by a threat of unmitigated severity against American citizens and villages in case the system of retaliation was pursued. Mr. Madison retaliated by putting into confinement a similar number of British officers taken by the United States. General Prevost immediately retaliated by subjecting to the same discipline all his prisoners whatsoever. ... A better temper, • however, soon came over the British Government, by whom the system had been initiated. A party of United States officers who were prisoners of war in England were released on parole with instructions to state to the President that the 23 prisoners who had been charged with treason in England had not been tried but remained on the usual basis of prisoners of war. This led to the dismissal on parole of all officers on both sides. (Wharton: Digest of International Law.) During the Franco-Prussian War, 1870-1, the French captured 40 merchant ships and made their crews prisoners of war. Count Bismarck, who considered it contrary to International Law to retain these men as prisoners, demanded their liberation, and when the French refused it ordered by way of reprisals 40 French private individuals of local importance to be arrested and sent as prisoners of war to Bremen, where they were kept until the end of the war. (Count Bismarck, as it happened, was decidedly wrong, for France had, as the laws then stood, in no way committed an illegal act by retaining the German crews as prisoners of war.) The Germans in 1870-1 by way of reprisals for offenses committed by inhabitants in taking part in the attack on troops, convoys, messengers, etc., exacted fines or burnt down buildings. At Charmes the town casino was burnt down as punishment for inhabitants having fired on the escort of a convoy of prisoners of war (Von Widdern, IV., 2, p. 33). The village of Fontenay was burnt down and a fine of 10,000,000 francs levied on the Province of Lorraine on account of the railway bridge near the village having been destroyed with the alleged connivance of inhabitants (Idem, IV., 2, pp. 290-303). In his proclamations of 31st May, 16th June, and 19th June, 1900, Field Marshal Lord Roberts threatened reprisals for wanton damage to property, and damage to railway and telegraph lines by the burning of the houses and farms in the vicinity of the places where damage was done."
So Par The Manual of Military Law. To these examples may be added the Proclamation issued by General Von Kummer at Metz on October 30, 1870, which ran as follows: "If I encounter disobedience or resistance I shall act with all severity and according to the Laws of War. Whoever shall place in danger the German troops, or shall cause prejudice by perfidy, will be brought before a Council of War. Whoever shall act as a spy to the French troops or shall lodge or give them assistance, whoever shall show the road to the French troops voluntarily, whoever shall kill or wound the German troops or the persons belonging to their suite, whoever shall destroy the canals, railways or telegraph wires, whoever shall burn munitions and provisions of war, and lastly, whoever shall take up arms against the German troops, will be punshed by death. It is also declared that (1) all houses in which or from out of which, any one commits acts of hostilities towards the German troops will be used as barracks; (2) not more than ten persons shall be allowed to assemble in the streets or public houses; (3) the inhabitants must deliver up all arms by 4 o'clock on Monday, October 31, at the Palais Rue de la Princesse; (4) all windows are to be lighted up during the night in case of alarm.'' The foregoing proclamation may be said to deal with war treason, but as it has a certain affinity with Lord Roberts' proclamations of 1900, which are classed by the War Office as reprisals, it is quoted as evidence that the theory of reprisals and the theory of war crimes overlap. In any case, however, it is clear that the threat of reprisals is more likely to be successful than the reprisals themselves, that in most cases reprisals where carried out are liable to be denounced as methods of barbarism, and are, therefore, likely to divert sympathy to the sufferers. For this reason, if for no other, great care and forethought should be given to all the aspects of the case, before a threat of reprisals is formulated. For if the threat is delivered it becomes almost impossible to avoid its execution, with all the discreditable consequences.
The Whole question of reprisals is considered by the writer as most difficult. There can be no more glaring example of barbarism than the sack of Magdeburg by Tilly's troops in the Thirty Years' War; but Gustavus Adolphus persistently refused to sanction reprisals, and history holds that he was right. Possibly the rules proposed by Professor Holland might form a useful basis for future guidance. They are as follows:
"Reprisals must be exercised only subject to the following restrictions: (1) The offense in question'must have been carefully inquired into. (2) Redress for the wrong or punishment of the real offenders must be unattainable. (3) The reprisals must be authorized, unless under very special circumstances, by the Commander-in-chief. (4) They must not be disproportionate to the offense, and must in no case be of a barbarous character." These rules in effect summarize the proposals put forward by the Russian Government at the Brussels Conference of 1874, Proposals which, unfortunately, were not adopted. As, however, the aim of reprisals is not vengeance, but prevention, Sir Graham Bower adds to the foregoing the following rule: "(5) A threat or warning must precede all reprisals, and the reprisals should only be carried out if the threat or warning is disregarded." As the aim of all war is a lasting peace, so a reluctance to engage in reprisals, except under compulsion, is likely to promote that aim and to preserve the honor of the nation in the eyes of impartial or neutral or humane persons.
A History Of Continental Criminal Law. By Carl Ludwig Von Bar, late Professor of Law in the University of Gottlngen, and others. Translated by Thomas S. Bell, of the Los Angeles Bar, and others. With an Editorial Preface by John H. Wiomore, Professor of Law in Northwestern University, and Introductions by William Renwick Riddell, Judge of the High Court of Justice for Ontario, and by Edwin R. Keedy, Professor of Law in the University of Pennsylvania. Little, Brown & Co., Boston. 1916.
We have here another weighty and interesting volume In the Continental Legal History Series published under the auspices of the Association of American Law Schools under the supervision of an Editorial Committee headed by Judge John H. Wigmore, who contributes a scholarly preface to the present work.
Like other volumes in the present series, this one is built up around a central treatise, namely the late Professor von Bar's "Geschichte des Deutschen Strafrechts und der Strafrechtstheorien." Much additional matter has been added, however, from the works by von Hamel, Stemann, Pfenninger, von Stein, Glasson, and Garraud, while a small amount of original or new material in the text and notes has been contributed by Dr. Ladislas von Thot, a learned Hungarian jurist. The result as a whole is exceedingly creditable to American legal editorial scholarship as this volume, while falling short of an ideal history of Criminal law, furnishes lawyers and students of legal history with a comprehensive and scholarly survey of the origin and development of criminal law in continental European states up to the present time. If read in conjunction with the volumes on Continental Criminal Procedure (Vol. V) .and on the History of Italian Law, largely a criminal law survey, by Calisse (Vol. VIII), one cannot fail to get an excellent knowledge of the history of European criminal law and of its procedure. It is safe to say, therefore, that these volumes are a distinct contribution to legal historical literature In English and, on account of their composite character, careful editing, and up to date annotations, are almost more valuable than the original treatises in various foreign languages.
Members of the bar in America and England should take advantage of the opportunities afforded them by this series and by the Modern Criminal Science Series to acquaint themselves with the history, principles, sociology, and general background of modern law.
Criminality And Economic Conditions. By William Adrian Bonger, of Amsterdam, Netherlands. Translated by Henry P. Horton. of Ithica, N. Y. With an Editorial Preface by Edward Lindsey, of the Warren, PaBar, and with an Introduction by Frank H. Norcross, Justice of the Supreme Court of Nevada, Vice-President of the American Institute of Criminal Law and Criminology. Little, Brown & Co., Boston. 1916.
The Committee of the American Institute of Criminal Law and Criminology could hardly have chosen a more interesting, stimulating, and informative work for translation in the Modern Criminal Science Series than this by the brilliant and industrious young Dutch scholar. Dr. Bonger has earned a reputation among sociologists of today as a careful student of social problems. His publications are numerous and are marked by a spirit of research and a use of statistical information which back up his strongly socialistic theories and interpretations.
The present work is divided into two parts of different type and origin. Part 1 is entitled "A Critical Exposition of the Literature dealing with the Relation between Criminality and Economic Conditions." Copious extracts from writers dealing with crime and criminal science from various viewpoints are given and appended to these are critical comments by Dr. Bonger. Thus part 1 is virtually a source book of modern criminology and one gets quite a comprehensive viewpoint by reading these eight interesting chapters. The literature of criminal science in Europe, England, and America is covered in a general way, no less than fifty-eight writers being drawn upon for Illustrative extracts. The emphasis is, of course, on the economic side of crime, but the extracts cover a broad range and deal with statisticians, environmentalists, bio-socialists, spiritualists, and writers of the Italian school such as Lombroso, Garofalo, and Ferri.
Much more important than the first part is Part II, which takes up and discusses fully the present economic system in relation to criminality. The strongly Marxian views of Dr. Bonger appear constantly throughout this part of the volume and the remedies along lines of economic readjustment which he suggests and favors will appear doctrinaire and impractical to most Americans. Nevertheless his analysis and description of various classes of crime in relation to economic conditions and environment is so searching, his statistics and pieces justicatif so convincing, and his reasoning so clear and cogent that the book makes a deep impression. He is a sturdy enemy and critic of capitalism, militarism, and alcoholism while showing strong leanings toward socialism of enlightened character. Particularly interesting are Dr. Bonger's chapters on the relation of the sexes and of the family and on economic and sexual crimes. Many of the other chapters are brief and summary merely setting the author's viewpoint. Dr. Bonger places himself in strong oppositoin to the writers who regard crime as largely a disease due to heredity and he makes an effort to show that crime and degeneracy are largely the result of social and economic environment and are not necessarily heritable. His main conclusion is "that economic conditions occupy a much more important place in the etiology of crime than most authors have given them." Prom this he goes on to attack in detail the present system and decides "that where crime is the consequence of economic and social conditions we can combat it by changing those conditions." The last pages of the book present an optimistic and glowing, but by no means convincing, picture of how crime would be eliminated by a fundamental reorganization of government, society, and industry along lines of Marxian socialism, the author concluding that "in such a society there can be no question of crime properly so called." This is a rather sweeping assertion.