of war to take up arms again in the same campaign, in direct violation of their parole. Such an act on the part of a belligerent Government is utterly futile as a protection to soldiers who may thus be made to violate their parole, and is an evidence of ignorance or semi-barbarism of the Government making such a declaration. We have an example in the war between the United States and the republic of Mexico. The Mexican authorities not only attempted by proclamation to induce such of their soldiers as had been released by the Americans on parole to regard that obligation as null and void, but in some cases their unexchanged prisoners were actually forced to re-enter the ranks and fight. Many others, under the promise of plunder, were induced to organise themselves into guerrilla bands under robber chiefs, who were furnished with military commissions from the Government. Such attempts to violate the ordinary rules of war not only justify, but require prompt and severe punishment. Accordingly, General Scott announced his intention to hang everyone who should be retaken after thus violating his parole of honour. In making further releases on parole, he required, in addition to the ordinary military pledge, the sanctity of a religious oath, administered by the Mexican clergy.1

§ 19. Cases have sometimes occurred where a general has taken so large a number of prisoners that he cannot keep them with safety, or cannot supply them with food, and is satisfied that, if released on their parole, they would not respect it. If he has not the means of keeping his prisoners, and can safely put them on parole, he is, of course, bound to release them. But the question arises, if he cannot safely do this, and has no means to subsist them, what is he to do? Must he release them, to the imminent danger of his own security, or to his certain destruction, or, will the law of selfdefence justify him in putting them to death? If his own safety is incompatible with that of an enemy,—even of an enemy who has submitted,-will his duty to his own State justify him in destroying that enemy?

§ 20. The extreme case here supposed can seldom, if ever,

1 Grotius, De Jur. Bel. ac Pac., lib. iii. cap. xxiii. §§ 6-10; Riquelme, Derecho Pub. Int., lib. i. tit. i. cap xii.; Cong. Doc., 30 Cong., i Sess. H. R. Ex. Doc. No. 56, p. 245.

happen, for a general can almost always find some means of disposing of, or securing, his prisoners of war, short of deliberately putting them to death. Vattel is evidently of the opinion, that cases may occur where such a course would be justifiable. But,' he says, 'to justify us in coolly and deliberately putting to death a great number of prisoners, the following conditions are indispensable: Ist, That no promise has been made to spare their lives; and 2nd, That we be perfectly assured that our own safety demands such a sacrifice. If it is at all consistent with prudence, either to trust to their parole, or to disregard their perfidy, a generous enemy will rather listen to the voice of humanity than to that of timid circumspection. Charles XII., being encumbered with his prisoners after the battle of Narva, only disarmed them, and set them at liberty; but his enemy, still impressed with the apprehensions which his warlike and formidable opponents had excited in his mind, sent into Siberia all the prisoners he took at Pultowa. The Swedish hero confided too much in his own generosity: the sagacious monarch of Russia united, perhaps, too great a degree of severity with his prudence. When Admiral Anson took the rich Acapulco galleon, near Manilla, he found that the prisoners outnumbered his whole ship's company; he was, therefore, under the necessity of confining them in the hold, where they suffered cruel distress. But, had he exposed himself to the risk of being carried away a prisoner, with his prize and his own ship together, would the humanity of his conduct have justified the imprudence of it? Henry V., King of England, after his victory in the battle of Agincourt, was reduced, or thought himself reduced, to the cruel necessity of sacrificing the prisoners to his own safety.' 'Nothing,' continues Vattel, 'short of the greatest necessity, can justify so terrible an execution; and the general, whose situation requires it, is greatly to be pitied.' Probably, the opinion of Vattel was justified by the practices of the age in which he wrote, and of those which preceded it, but in the present day, the conduct of any general who should deliberately put his prisoners to death would be declared infamous, and no possible excuse would remove the stain from his character.1

1

Vattel, Droit des Gens, liv. iii. ch. viii. § 151; Manning, Law of

§ 21. It was an ancient maxim of war, that a weak garrison forfeit all claim to mercy on the part of the conqueror, when, with more courage than prudence, they obstinately persevere in defending an ill-fortified place against a large army, and when, refusing to accept of reasonable conditions offered to them, they undertake to arrest the progress of a power which they are unable to resist. Pursuant to this maxim, Cæsar answered the Aduatici that he would spare their town, if they surrendered before the battering-ram touched their walls. But, though sometimes practised in modern warfare, it is generally condemned as contrary to humanity and inconsistent with the principles which, among civilised and Christian nations, form the basis of the laws of war. Nor was it altogether admitted by the ancients, for, when Phyton was ordered to be executed by Dionysius the tyrant, for having obstinately defended the town of Rhegium, he protested against it as an unjust punishment, and called upon heaven to avenge his death. Diodorus Siculus regarded such a punishment as unjust; and Alexander the Great ordered some Milesians to be spared on account of their courage and fidelity. It is sometimes said, that where a garrison makes an obstinate defence of a weak place against an overwhelming force, it only causes useless effusion of human blood, and that, therefore, the authors of such a sacrifice should be severely punished.' But who can say beforehand Nations, p. 165. Rutherforth, Institutes, book ii. chap. ix. § 17; Phillimore, On Int. Law, vol. iii. § 95; Burke, Works, vol. iv. p. 127.

Lord Mansfield has laid it down that no cruelties are permitted by the law of nations that are not necessary to secure a conquest (Cornu v. Blackburne, 2 Doug. 644). Sir W. Scott has adjudged that a belligerent is bound to confine himself to those modes which the common practice of mankind has employed, and to relinquish those which the same practice has not brought within the ordinary exercise of war, however sanctioned by its principles and purposes (Fladoyen, 1 Rob. 134). 'Wars,' said Lord Bacon, are no massacres and confusions, but they are the highest trials of right, when princes and States shall put themselves upon the justice of God, for deciding their controversies as it shall please Him to put on either side.'

In 1760 General Landolm, on appearing before Breslau to besiege that place, informed the governor (inter alia) that in case of obstinacy he could expect no reasonable terms; that the place was a mercantile town, not a fortress; and that he could not defend it without contravening the laws of war. The governor, Count Tavenzien, respected these laws, but did not the less defend the place. He replied that, being surrounded with work and wet ditches, it was to be considered a place of strength, and not merely a mercantile town; that the king had ordered him to defend it to the last extremity, and that he was not frightened at

that such a defence may not save the State by delaying the operations of the enemy? There are numerous instances, in ancient as well as modern times, where courage has supplied the defects of fortifications, and where places generally regarded as untenable have been defended by a brave and determined garrison till the enemy consumed his strength in the operation of the siege, and wasted the most favourable season for conducting the campaign. In case a place is closely besieged it is customary for the besieging general to offer to the garrison honourable terms of capitulation; and if they refuse these terms, and the place is carried by force, they may be compelled to surrender at discretion, and the captor may treat such prisoners with all the severity of the law of war. But that law, says Vattel, can never extend so far as to give a right to take away the life of an enemy who lays down his arms, unless he has been guilty of some crime against the conqueror. Where, however, the resistance is not only evidently fruitless and without any reasonable object, but springs from obstinacy instead of firmness of valour, the officer so resisting is guilty of one of the greatest of crimes -the useless sacrifice of human life; and not only does he deserve to be treated with extreme severity by the captor, but also his own Government should see that he be justly dealt with for so serious an offence. But the resistance in such a case must be obviously useless, and known to be such when it is made. If there is any probability of success he is justifiable in holding out to the last extremity.'

§ 22. We do not, at the present day, often hear, when a town is carried by assault, that the garrison is put to the sword in cold blood, on the plea that they have no right to quarter. Such things are no longer approved or countenanced by civilised nations. But we sometimes hear of a captured town being sacked, and the houses of the inhabitants being plundered, on the plea that it was impossible for the general to restrain his soldiery in the confusion and excitement of storming the place; and, under that safer

the general's threats to destroy the town, for he was not entrusted with the care of the houses but of the fortifications. The town was most bravely defended, and Landolm eventually was forced to withdraw.

1 Vattel, Droit des Gens, liv. iii. ch. viii. § 143; Bynkershoek, Quaest. Jur. Pub., lib. i. cap. iii.; Grotius, De Jur. Bel. ac Pac., lib. iii. cap. iv. §13; cap. xi. § 16.

name of plunder, it has sometimes been attempted to veil 'all crimes which man, in his worst excesses, can commit; horrors so atrocious that their very atrocity preserves them from our full execration, because it makes it impossible to describe them.' 1 It is true that soldiers sometimes commit excesses which their officers cannot prevent; but, in general, a commanding officer is responsible for the acts of those under his orders. Unless he can control his soldiers he is unfit to command them. The most atrocious crimes in war, however, are usually committed by militia, and volunteers, suddenly raised from the population of large cities, and sent into the field before the general has time or opportunity to reduce them to order and discipline. In such cases the responsibility of their crimes rests upon the State which employs them, rather than upon the general who is, perhaps, unwillingly, obliged to use them.2

§ 23. The truth of these remarks is illustrated by the war of the Spanish Peninsula. None of the generals in that war pretended, for a moment, that the garrisons and inhabitants of places taken by assault were not entitled to quarter, or that any rule of modern warfare justified the sacking of captured

1 Sir Arthur Wellesley, writing to Lord Castlereagh in 1809, remarks that it is impossible to describe the irregularities and outrages committed by the British troops. He considers that there ought to be in the army a regular provost establishment. All the foreign armies have such an establishment. The French gendarmerie nationale are to the amount of forty or fifty with each corps. The Spaniards have their police militia to a still larger amount. 'While we,' says he, 'who require such an aid more, I am sorry to say, than any other nation of Europe, have nothing of the kind.' Nor to this day have any steps been taken by the British Government towards carrying out the above suggestion, with the exception of the appointment of a few men to assist the provost-marshal in barrack police duty, with a view to maintain order and regularity within the lines of a regiment.

Every corps may employ two or three steady soldiers to act as regimental police under the superintendence of the provost-sergeant, whom they are to assist in the performance of his police duties. In a closed barrack three men are considered sufficient for this duty. The number is never to exceed six. It is part of the duty of the provost-sergeant, in addition to performing the police duties of the barracks, or of that part of the garrison in or near which the provost-prison is situated, to visit canteens in the neighbourhood, to interfere to prevent drunkenness or riot, to use his authority to suppress all irregularity, and to clear the barracks of any loose or disorderly characters. (Queen's Regulations for the Army, sect. 6, ss. 35 and 100.)

2 Kent, Com. on Am. Law, vol. i. pp. 92, 93; Pinheiro Ferreira, Notes sur Martens, tome ii. note 77; Riquelme, Derecho Pub. Int., lib. i. tit. i. cap. xii.