uncontradicted, that the Law of Nations does not allow the use of poison in war, nor of poisoned weapons, nor of poisoned fountains or wells, nor of recourse to assassination; and some authors except the use of langridge, (mitraille); but this is still sometimes employed, though very rarely-I believe never by the English or French. (1) Thus has custom interfered to prescribe limits to the manner in which violence may be exercised towards an enemy. Such usages, at present, form an integral part of the European Law of Nations; and the Law of Nature now demands their observance, because their neglect by one belligerent would lead to their neglect by his antagonist; and there would thus be no permanent advantage to either party from an infraction of these rules, which would be attended with no other result than an addition of useless cruelty to the already burdened catalogue of the miseries of warfare. Dependent on the same principle-that no injury Exemption of unattended with results upon the issue of the war is certain classes. allowable,—is the prohibition to attack the persons of certain classes of the enemy, which is now acknowledged as part of the European Law of Nations. Formerly, when nation attacked nation, the whole inhabitants of the hostile state were regarded as liable to the rigours of warfare; and we have seen that Grotius declared such treatment to be according to the Jus Gentium; but, at the present day, not only old people, women, and children, are regarded as exempt from the violence of warfare, but also, in general, all those subjects of the hostile state who do not bear arms, or who take no active part in hostilities; and also even those who follow the enemy's camp, but take no part in hostilities-such as medical men, commis (1) Vattel, Droit des Gens, liv. III. ch. VIII. § 155, 156, 157. De Martens, Précis, liv. VIII. ch. IV. § 273. Klüber, Par. II. saries, sutlers, and all who can be strictly classed as noncombatants. (1) One other exemption from the effects of hostilities must be mentioned, in the case of fishing-boats, which, enjoying a freedom otherwise unknown in maritime warfare, have, in several wars, been allowed to pursue their trade unmolested. As early as 1521, while war was raging between Charles V. and Francis I, ambassadors from these two sovereigns met at Calais, then English, and it was agreed, that, whereas the herring-fishery was then about to commence, the subjects of both belligerents, engaged in this pursuit, should be safe and unmolested by the other party, and should have leave to fish as in time of peace. (2) A similar exemption for fishing boats occurred in the last war. In 1800, the British and French governments issued instructions, exempting from seizure the fishing-boats of each other's subjects: this order was subsequently rescinded by the British government, on its being believed that some of the French fishing-boats were equipped as gun-boats, and that some of the French fishermen, who had been prisoners in England, had broken their parole not to serve, and had gone to join the fleet at Brest. Some angry discussions took place on the subject, but subsequently our restriction was withdrawn, and the freedom of fishing was again allowed on both sides. (3) Besides this moderation with regard to the persons on whom violence may be employed, the Law of Nations is strict in its limitations of the persons by whom hostilities may be exercised. For although all the subjects of one (1) De Martens, ubi sup. § 272. Klüber, ubi sup. § 247, note c. (2) Dumont, Corps. Dip. IV. I. 352. (3) See the correspondence, and other papers on the subject, in De Martens, Recueil vi. 503 -515. belligerent are the enemies of all the subjects of the other belligerent, yet it is by no means allowed, as in the practice of barbarous states, that every individual member of a belligerent state may exercise all the rights of warfare. The commission of actual hostilities is only allowed, excepting in cases of self-defence, to those who are expressly authorized so to act by the sovereign power. This limitation is as old as the customs of the Romans, who enforced this principle by the most rigorous penalties. But the Roman system was pursued as a part of military discipline, rather than for the reason which now occasions such limitation, namely, a desire to confine the horrors of war within as small a compass as possible. At the present day, it is deemed indispensable that all persons should act under a commission, to entitle them to be treated as enemies, and not as pirates and marauders. This was formerly carried so far that, previous to the French Revolution, there were instances in which militia were hardly allowed the same treatment as troops of the line; but the system of levée en masse, which has since taken place in almost all continental states, has removed this inequality; and, at present, all troops, however organized, acting under a regular commission, have a right to demand the same treatment. But all unauthorized aggressions are punishable, except in self-defence; this freedom from attack, on the part of troops, being as it were the consequence of that immunity, on the part of enemies not soldiers, which has been just noticed. (1) Some observations have been made, in a previous chapter, (2) on the subject of maritime captures by uncommissioned captors, which is with us carried to the extent that, prizes so made, even when the action has commenced in selfdefence, do not belong to the captor, but to the sovereign, under the head of what are called Droits of Admiralty. (1) See Vattel, Droit des Gens, liv. III. ch. XV. De Martens, Précis, liv. VIII. ch. iv. $271. Klüber, Droit des Gens, Par. II. tit. 11. § 267. (2) Vide ch. II. Importance of the usages of European warfare. Thus have the usages of nations gradually imposed restraints upon the unlimited violence which marked ancient warfare. These usages have now become so well ascertained, that they were recognized even during that reckless disregard of precedent which characterized the early part of the French Revolution; and, in 1791, in the declaration of the National Assembly, drawn up by Condorcet, regarding their intentions as to foreign states, they expressly declared, that peaceable citizens were not to be regarded as enemies by the French armies. (1) All modern usages tend to confine the miseries of warfare within a narrower compass; limiting their destructive scope both in the persons subject to their influence, and in the manner in which violence may be exercised. Every one must rejoice at this improvement, and must perceive, that though it may be vain to expect that arms shall cease to be appealed to in the disputes of nations, yet that the cause of humanity will be materially advanced by the observance of such restraints; so that when wars do occur, the infliction of any misery shall be forbidden that is not absolutely indispensable to obtain the purpose of hostilities. (1) De Martens, Recueil V. 308. CHAPTER VIII. OF PRISONERS OF WAR. In the preceding chapter, we have traced the manner in which, as civilization has advanced, a milder and more humane treatment has gradually pervaded the usages of modern warfare, as regards personal violence; and the same improved understanding of what the Law of Nature commands, is observable in the more lenient treatment now usual with regard to Prisoners of War. But the amendment of these latter usages has been more gradual; principally, I think, because the customs of warfare, with regard to prisoners, have, till very lately, proceeded wholly from a wrong basis. It has been customary for many ages to regard captives, not as persons who, from no longer resisting, are no longer fit objects for violence, but as persons to whom the conqueror has granted life, and of whom he has, in return for that gift, the absolute disposal; so that he might employ them for any purpose, and regard them wholly as his property; treating them as persons who have no longer independent rights of their own. treatment among bar. It is unnecessary to do more than refer to the barbarous Their cruel cruelties with which prisoners of war are treated by savage nations; but it is with sorrow that we find Grecian barians. warfare stained with such atrocities as the slaughter, in cold blood, of prisoners of war, while other captives were subjected to become the slaves of their conquerors; and |