regulate English action: "English Courts must enforce the rights given by international law as well as those given by the law of the land so far as they fall within their jurisdiction in respect of parties or places; subject to the rules that the king cannot direct or modify private right by treaty, and that the Courts cannot question acts of State." (Cf. Westlake in L. Q. R. January, 1906.) The last proviso of this rule no doubt is necessary to cover the existing practice of the Courts, but a more equitable condition would be that an act of State should not be construed to conflict with international obligations. When an offence has been committed by the sovereign against the law of nations, "act of State" is as bad a plea for him as is "public policy" for a subject when he has broken the strict law of the land. The words which Baron Parke used in a famous case about public policy, and which Lord Halsbury quoted in Driefontein Mines Co. v. Janson,1 apply "mutatis mutandis" to the plea of act of State. "To allow public policy to be a ground of judicial decision would lead to the greatest uncertainty and confusion. It is the province of the judge to expound the law only, the written from the statutes, the unwritten or common law from the decisions of our predecessors and of our existing Courts, and of text-writers of acknowledged authority; and upon principles to be clearly deduced from them by sound reason and just inference."

The backwardness of England in accepting the progressive ideas of the law of nations is doubtless due in part to the very merits of the English legal system. We adhere so loyally to the remarkable body of our case-law, that we are chary of admitting the authority of external jurisprudence. We trust in custom broadening out from precedent to precedent, and to some extent we fall into a certain insularity and offer resistance alike to the principles of natural reason and to the consensus of nations. Wherever international usage is applied through municipal law, the English Courts are excessively conservative and lag behind Continental tribunals. What renders the practice of our Courts so striking is that it contrasts strongly

1 (1902) A. C. 496; cf. Egerton v. Lord Brownlow, 4 H. L. C. 123.

with the progressive views of the military authorities; and not only of the military authorities, but of extraordinary judicial bodies like Royal Commissions. The rules of war on land have now the bindingness of a solemn treaty upon civilised nations; the rules of war on sea will probably soon have the same sanction. The rules of conquest can have no greater bindingness than the regular courts of the land can give to them. But seeing that they have to be applied when the violence of war is over and the rule of law has been reasserted, there is the more reason that they should be honestly accepted and judicially supported. The Rule of law, which characterises the English Constitution, should extend to the relations of the sovereign power with its conquered subjects. It is the paradox of England's present attitude to international law that where it is judicial it is most backward.

CHAPTER III.

WAR AND PRIVATE PROPERTY ON LAND.

DURING the nineteenth century the theory was continually growing stronger which makes war primarily a relation between States, and therefore leaves the rights of private property intact, except so far as they are disturbed by the necessities of war. This theory found its expression in the laws which were drawn up by the representatives of the Powers at the Hague in 1899, and ratified by their Governments.

Comparing the strife of nations to the litigation of individuals, it may be said that, while of old a nation exacted its damages and costs from the enemy subject as well as from the enemy State, he now claims them only from the latter. But at the same time he may interfere with the goods of the noncombatant subject, when military exigencies demand it.

The principle of modern usage, according to Hall, is that property can be appropriated of which immediate use can be made for warlike operations by the belligerent seizing it, or which, if it reached his enemy, would strengthen the latter either directly or indirectly; but that property not so capable of immediate or direct use, or so capable of strengthening the enemy, is insusceptible of appropriation.1 Bluntschli puts the same idea more concisely when he says: "Le vainqueur doit respecter la propriété privée, et il ne peut y porter atteinte que lorsque les opérations militaires l'exigent."

We shall see that the practice even of the latest times gives such a wide interpretation of military operations and "immediate use" that the spirit of the principle of exemption is partly violated; nevertheless, it represents an ideal towards which the usage of nations has steadily developed from the Napoleonic

1 Cf. Hall's International Law, p. 420.

wars, and which has received legal validity in the Hague Code of the Laws of War.

From the middle of the nineteenth century attempts were made to form a code of the laws of war, so that usages should no longer be changeable at the caprice of the belligerent. The Conventions of St. Petersburg and Geneva, and the unratified articles of the Brussels Conference of 1874, represented steps in this direction; and finally the Hague Conference of 1899, premising that "the assembled representatives of the States were animated by a desire to save, even in war, the interests of humanity and the ever increasing requirements of civilization," drew up a code for war on land which, ratified as it is by all the Powers, must be a standard for future conduct, though its only sanction is the honour of nations.

The Institute of International Law in their proposed code of 1880, which was the groundwork of the Hague Code, laid down as its principle that the only legitimate end that a State may have in war is to weaken the military strength of the enemy; and Professor Holland, in his expansion of the Code for the use of British forces, interprets the principle thus: "The object of war is to bring about a complete submission of the enemy with the least possible damage to property."

Nevertheless land war has still very serious effects upon the private property of enemies and of neutrals which is situated permanently in the territory of the enemy. On land the property of neutrals is not treated differently from that of enemies, nor has the neutral any more legal right to compensation for damage done incidentally, for it is not the disposition of the owner but the location of the property which is decisive. Even when the property of domiciled neutrals is taken possession of or destroyed for strategic reasons by either belligerent, compensation need not be paid to the owners for the loss they have sustained. But the property of neutrals temporarily in the country when seized in such circumstances is entitled to compensation. The injuries, however, caused by the events of war, battles, sieges, and bombardments-these are considered as due to necessity and force majeure, and akin to the losses caused by acts of God, storms, earthquakes, etc.; and neither belligerent

considers himself liable to compensate the private owners affected. As an act of grace a State may, after peace, consent to compensate its subjects for their losses; by raising taxes or loans to enable it to do this, it disperses equably over the whole nation the loss which had originally ruined the few.

66

Pillage is now formally prohibited even when a town is taken by storm; but the laws of war still permit an invading army, on the ground of military necessity, to devastate whole tracts of country, burn dwellings, and clear a district of supplies.2 The famous campaign of General Sherman in 1865 through Georgia is a notable instance of such devastation. A belligerent may employ this extreme measure also when his enemy has ceased regular military operations and obstinately continues a guerilla warfare, as was the case with the bands of the South African Republic after the English proclamation of annexation in September, 1900. Their irregular warfare was met by what has been called the process of attrition." The devastation of large tracts of country and the systematic destruction of habitations were employed as the only effective means of bringing about the submission of the desperate remnants of what had been the enemy's army. The Hague Laws of War contain no provision for emergencies of this kind. In their preamble it is stated that the provisions are destined to serve as general rules of conduct for belligerents in relation to each other and to the population. "It has not, however, been possible to agree on provisions embracing all circumstances which may occur in practice." Belligerents, therefore, have sometimes to return to the older methods of warfare; with this difference, that their destructive operations must never be wanton or spiteful but must have a clear military justification. Military necessity, however, may have a very wide connotation. According to Lieber, it allows of all destruction of property and obstruction of ways and channels of traffic, travel or communication, and of all withholding of sustenance or means of life from the enemy, or appropriation of whatever an enemy country affords, necessary for the sustenance and safety of an army.

1 Cf. Hague Laws of War, 28, 47.

2 Cf. Holland, Laws of War on Land, p. 4.