which he has committed in his private capacity, his position is altogether different. He is no longer under the shelter of his belligerent rights. If, for example, after accepting quarter, he should kill his captor, the capturing State may justly put him to death; but in that case it deals with him, not as a prisoner, but as a murderer. His punishment is personal, not vicarious, and does not require the theory of "reprisals" to justify it. Even in the "extreme cases of the violations of the laws of war, to which the Russian project proposed to confine reprisals, it appears to me that the only jural course of action is for the State thus injured to urge neutrals to withdraw their recognition of belligerency, and to intervene on its behalf.1 Such an appeal, if substantiated by facts, would, as it seems to me, put an end to the only justifiable plea for non-intervention on the part of all States to which intervention was not a physical impossibility, or was forbidden by their inability to ascertain the truth of the allegations, or which of the combatants was most in the wrong. Even where no intervention occurred, the withdrawal of the rights of belligerency from one of the combatants, by depriving the war of its public character, would of course place him at the mercy of the municipal laws of the other. Reprisals, as mere deterrents, would still be forbidden; but prisoners might then be punished as rebels. Their treatment might possibly be pretty much the same in the one case as in the other, but they would at any rate have the benefit of knowing beforehand that they were not under the protection of the law of nations.

1 Correspondence relating to Conference at Brussels. No. I., 1874, p. 17; and No. II., 1875, p. 6. See Appendix No. II.

(B) Things.

All material objects necessary for the performance of the duties appertaining to the classes of persons above-mentioned: Churches, learned and scientific institutions, with the lands, property, endowments, and other emoluments belonging to them; ships engaged in scientific discovery, works of art, historical monuments, legislative chambers, courts of justice, hospitals, ambulances, and medical stores. This protection does not, of course, cover any property which belongs to the State in its political capacity exclusively—such, for example, as the public treasury or Crown lands, and palaces or jewels. These, as jura publica, fall fairly within the scope of jural war. The State holds them qua State; and its citizens are interested in them only qua citizens. They cling to the political life of the State, and must share its fortunes, and the fortunes of its citizens, not the fortunes of humanity or of private persons. On this ground, Balmoral and Osborne, as the Queen's private property, would be in a different position from Windsor and Holyrood.

In carrying on legitimate military operations, it is often physically impossible to distinguish between objects, whether animate or inanimate, which belong to one or the other of these classes. In this case their seizure or destruction cannot be regarded as a violation of the laws of war. The burning of the library at Strasbourg, and even the injury done to the cathedral, by the Germans, probably admitted of this defence; and the same may be said of any injury which was unintentionally done to the priests or the librarians. But had the library or the cathedral been shelled with

a view to hastening the surrender of the place, the act, even if it had contributed to the desired result, would clearly have exceeded the rights of belligerency. The careful re

moval and appropriation of books, MSS., and works of art, provided they be retained uninjured, and made equally accessible for learned and artistic purposes, and for general culture and enjoyment, raises a nicer question. It might be difficult to contend that the interests of humanity or of civilisation were interfered with when Napoleon collected the Italian and Spanish pictures in the Louvre, or when a commission was appointed to select and carry off from Constantine such Arabic MSS. as were of value for learned purposes. Even had Napoleon sold the pictures to a neutral State-trade between neutrals and belligerents being permitted-the belligerent title which he granted would have been confirmed by a treaty of peace which ignored the transaction.

Nor would the case have been altered though the purchaser had been an opposing belligerent, even the one from whom the works were taken; because the rule that belligerents shall not trade with each other is not an international rule, but only a rule which each belligerent makes for his own. supposed advantage. The pictures in the Louvre would have sold for as much as would almost have provisioned Paris; and had the necessities of war demanded the sacrifice, I can see no international principle which would have forbidden it. They might have been sold to England, and had no provision been made for their restoration in the treaty of peace, Italy would have had no claim to them; or they might have been sold to Italy herself, and she could have reclaimed the money

she had paid for them only as part of the war-indemnity to which she was entitled. The pretium affectionis which she attached to them would have gone to increase the indemnity, but would not have nullified the transaction. It was the

final triumph of the Allies, whilst the pictures were still in Napoleon's possession, which alone ensured their restoration to their original owners. The Allies, it is true, might have made their restoration a condition of peace with France; and in that case France must either have repurchased them, or accepted the consequences of a continuance of the war. 4. Of cruelty.

The principle of economy which forbids all wanton destruction, even of public lives and property, by belligerents, applies not only to the prolongation of futile resistance, but to the use of projectiles or other weapons of such a kind as to destroy life by rendering recovery from the wounds which they inflict either impossible, or needlessly tardy and painful. The effort of the jural belligerent must be confined to putting his opponent hors de combat; and he is entitled to kill him, or to ruin and starve him, only when this cannot be otherwise accomplished. The poisoning of wells in an enemy's country, or the sinking of ships or torpedoes in a roadstead frequented by neutral shipping, is anti-jural, not only as a violation of the jura universalia of which we have hitherto spoken, but of the jura privata to which our attention will be immediately directed.

Apart from the consideration of neutral interests, and the prevention of needless cruelty, no principle appears to have guided the attempts which have been made to distinguish between lawful and unlawful weapons; and it is with great

truth that Bluntschli has said, "On autorise, on défend, sans

"1

savoir précisément pourquoi." The enumerations contained in the books, and the proposals of the International Military Commission at St Petersburg in 1868, to prohibit the use of all explosive projectiles weighing less than 400 grammes, are really of no value. They certainly would not be respected in anything approaching to an embittered war. But the science of destruction is probably only in its infancy; and if war is to continue, the subject of regulating the use of the terrible weapons which it may place in the hands of combatants, is one which may force itself on their attention. that can be done in the meantime is to confine warfare, as far as possible, to States in their public capacity, and to induce them to abandon, by common agreement, the ruinous race of preparation in which they are at present engaged,—a race rendered specially costly by the rapidity with which discovery follows discovery, and invention supersedes invention.

All

CHAPTER XIII.

JURA PRIVATA ARE EXEMPTED FROM THE RIGHTS WHICH

BELLIGERENCY CONFERS.

The distinction between the rights and duties of individuals in relation to the States of which they are citizens, and in relation to each other, is sharply and accurately

1 Droit Codifié, § 560, p. 294. Field, 2d ed., p. 495.