_Cf._ the French _Code de Justice Militaire_, Art. 204, and other Continental codes to the same effect.
III. The _Manuel des Lois de la guerre sur terre_ of the Inst.i.tute of International Law lays down:--
"ARTICLE 68.--Si le fugitif ressaisi[B] ou capture de nouveau avait donne sa parole de ne pas s"evader, il peut etre prive des droits de prisonnier de guerre."
"ARTICLE 78.--Tout prisonnier libere sur parole et repris portant les armes contre le gouvernement auquel il l"avait donnee, peut etre prive des droits de prisonnier de guerre, a moins que, posterieurement a sa liberation, il n"ait ete compris dans un cartel d"echange sans conditions."
I am, Sir, your obedient servant, T. E. HOLLAND.
Oxford, June 17 (1901).
THE PEt.i.tION OF RIGHT
Sir,--This is, I think, not a convenient time, nor perhaps are your columns the place, for an exhaustive discussion of the interpretation and application of the Pet.i.tion of Right. It may, however, be just worth while to make the following remarks, for the comfort of any who may have been disquieted by the letter addressed to you by my friend Mr. Jenks:--
1. Although, as is common knowledge, the words "in time of peace," so familiar in the Mutiny Acts from the reign of Queen Anne onwards, do not occur in the Pet.i.tion, they do occur, over and over again, in the arguments used in the House of Commons by "the framers of the Pet.i.tion of Right," to employ the phraseology of the judgment recently delivered in the Privy Council by the Lord Chancellor.
2. The prohibition contained in the Pet.i.tion, so far from being "absolute and unqualified," is perfectly specific. It refers expressly to "Commissions of like nature" with certain Commissions lately issued:--
"By which certain persons have been a.s.signed and appointed Commissioners, with power and authority to proceed within the land, according to the justice of martial law, against such soldiers or mariners, or other dissolute persons joining with them, as should commit any murder, robbery, felony, mutiny, or other outrage or misdemeanour whatsoever, and by such summary course and order as is agreeable to martial law, and is used in armies in time of war, &c."
The text of these Commissions, the revocation of which is demanded by the Pet.i.tion, is still extant.
3. The Pet.i.tion neither affirms nor denies the legality of martial law in time of war; although its advocates were agreed that at such a time martial law would be applicable to soldiers.
4. A war carried on at a distance from the English sh.o.r.e as was the war with France in 1628, did not produce such a state of things as was described by the advocates of the Pet.i.tion as "a time of war." "We have now no army in the field, and it is no time of war," said Mason in the course of the debates. "If the Chancery and Courts of Westminster be shut up, it is time of war, but if the Courts be open, it is otherwise; yet, if war be in any part of the Kingdom, that the Sheriff cannot execute the King"s writ, there is _tempus belli_," said Rolls.
I am, Sir, your obedient servant, T. E. HOLLAND.
Oxford, December 31 (1901).
THE PEt.i.tION OF RIGHT
Sir,--In a letter which you allowed me to address to you a few days ago, I dealt with two perfectly distinct topics.
In the first place I pointed out that the words occurring in a recent judgment of the Privy Council, which were cited by Mr. Jenks as a clear example of an a.s.sumption "that the Pet.i.tion of Right, in prohibiting the exercise of martial law, restricted its prohibition to time of peace,"
imply, as I read them, no a.s.sumption as to the meaning of that doc.u.ment, but merely contain an accurate statement of fact as to the line of argument followed by the supporters of the Pet.i.tion in the House of Commons. Can Mr. Jenks really suppose that in making this remark I was "appealing from the "text of the Pet.i.tion" to the debates in Parliament"?
I then proceeded to deal very shortly with the Pet.i.tion itself, showing that while it neither condemns nor approves of the application of martial law in time of war (see Lord Blackburn"s observations in R. _v._ Eyre), the prohibition contained in its martial law clauses, so far from being "absolute and unqualified," relates exclusively to "commissions of like nature" with certain commissions which had been lately issued (at a time which admittedly, for the purposes of this discussion, was not "a time of war"), the text of which is still preserved, and the character of which is set forth in the Pet.i.tion itself, as having authorised proceedings within the land, "according to the justice of martial law, against such soldiers or mariners," as also against "such other dissolute persons joining with them," &c. The description of these commissions, be it observed, is not merely introduced into the Pet.i.tion by way of recital, but is incorporated by express reference into the enacting clause.
Thus much and no more I thought it desirable to say upon these two topics by way of dissent from a letter of Mr. Jenks upon the subject. In a second letter Mr. Jenks rides off into fresh country. I do not propose to follow him into the history of the conferences which took place in May, 1628, after the framing of the Pet.i.tion of Right, except to remark that what pa.s.sed at these conferences is irrelevant to the interpretation to be placed upon the Pet.i.tion, and, if relevant, would be opposed to Mr. Jenks"s contention. It is well known that the Lords pressed the Commons to introduce various amendments into the Pet.i.tion and to add to it the famous reservation of the "sovereign power" of the King. One of the proposed amendments referred, as Mr. Jenks says, to martial law, forbidding its application to "any but soldiers and mariners," or "in time of peace, or when your Majesty"s Army is not on foot." The Commons" objection to this seems to have been that it was both unnecessary and obscurely expressed. "Their complaint is against commissions in time of peace." "It may be a time of peace, and yet his Majesty"s Army may be on foot, and that martial law was not lawful here in England in time of peace, when the Chancery and other Courts do sit."
"They feared that this addition might extend martial law to the trained bands, for the uncertainty thereof." The objections of the Commons were, however, directed not so much to the amendments in detail as to any tampering with the text of the Pet.i.tion. "They would not alter any part of the Pet.i.tion" (nor did they, except by expunging two words alleged to be needlessly offensive), still less would they consent to add to it the reservation as to the "sovereign power" of the King.
The story of these abortive conferences, however interesting historically, appears to me to have no bearing upon the legality of martial law, and I have no intention of returning to the subject.
I am, Sir, your obedient servant, T. E. HOLLAND.
Oxford, January 8 (1902).
MARTIAL LAW IN NATAL
Sir,--It seems that in the application made yesterday to the Judicial Committee of the Privy Council, on behalf of Natal natives under sentence of death, much stress was laid upon the argument that a proclamation of martial law cannot have a retrospective application. You will, perhaps, therefore allow me to remind your readers that, so far from the date of the proclamation having any bearing upon the merits of this painful case, the issue of any proclamation of martial law, in a self-governing British colony, neither increases nor diminishes the powers of the military or other authorities to take such steps as they may think proper for the safety of the country. If those steps were properly taken they are covered by the common law; if they have exceeded the necessities of the case they can be covered only by an Act of Indemnity. The proclamation is issued merely, from abundant caution, as a useful warning to those whom it may concern.
This view, I venture to think, cannot now be seriously controverted; and I am glad to find, on turning to Mr. Clode"s _Military and Martial Law_ that the pa.s.sage cited in support of Mr. Jellicoe"s contention as to a proclamation having no retroactive application is merely to the effect that this is so, if certain statements, made many years ago in a debate upon the subject, are correct. As to their correctness, or otherwise, Mr. Clode expresses no opinion.
I am, Sir, your obedient servant, T. E. HOLLAND.
SECTION 14
_The Naval Bombardment of Open Coast Towns_
The four letters which first follow were suggested by the British Naval Manoeuvres of 1888, during which operations were supposed to be carried on, by the squadron playing the part of a hostile fleet, which I ventured to a.s.sert to be in contravention of international law. Many letters were written by naval men in a contrary sense, and the report of a committee of admirals appointed to consider, among other questions, "the feasibility and expediency of cruisers making raids on an enemy"s coasts and unprotected towns for the purpose of levying contributions," was to the effect that "there can be no doubt about the feasibility of such operations by a maritime enemy possessed of sufficient power; and as to the expediency, there can be as little doubt but that any Power at war with Great Britain will adopt every possible means of weakening her enemy; and we know of no means more efficacious for making an enemy feel the pinch of war than by thus destroying his property and touching his pocket." (_Parl. Paper_, 1889 [c. 5632], pp. 4, 8.) The supposed hostile squadron had, it seems, received express instructions "to attack any port in Great Britain."
(See more fully in the writer"s _Studies in International Law_, 1898, p. 96.) The fifth letter was suggested by a Russian protest against alleged j.a.panese action in 1904.
The subsequent history of this controversy, some account of which will be found at the end of this section, has, it is submitted, established the correctness of the views maintained in it.
NAVAL ATROCITIES
Sir,--I trust we may soon learn on authority whether or no the enemies of this country are conducting naval hostilities in accordance with the rules of civilised warfare. I read with indignation that the _Spider_ has destroyed Greenock; that she announced her intention of "blowing down" Ardrossan; that she has been "sh.e.l.ling the fine marine residences and watering-places in the Vale of Clyde." Can this be true, and was there really any ground for expecting that "a bombardment of the outside coast of the Isle of Wight" would take place last night?
Your obedient servant, T. E. HOLLAND.
Athenaeum Club, August 7 (1888).
THE NAVAL MANOEUVRES
Sir,--In a letter which I addressed to you on the 7th inst. I ventured to point out the discrepancy between the proceedings of certain vessels belonging to Admiral Tryon"s fleet and the rules of civilised warfare.
Your correspondent on board Her Majesty"s ship _Ajax_ yesterday told us something of the opinion of the fleet as to the bombardment and ransoming of defenceless seaboard towns, going on to predict that, in a war in which England should be engaged, privateers would again be as plentiful as in the days of Paul Jones, and a.s.suring us that in such a war "not the slightest respect would be paid to old-fashioned treaties, protocols, or other diplomatic doc.u.ments." Captain James appears, from his letter which you print to-day, to be of the same opinion as the fleet, with reference both to bombardments and to privateers; telling us also in plain language that "the talk about international law is all nonsense."
Two questions are thus raised which seem worthy of serious consideration. First, what are the rules of international law with reference to the bombardment of open towns from the sea (I leave out of consideration the better understood topic of privateering)? Secondly, are future wars likely to be conducted without regard to international law?
1. I need hardly say that I do not, as Captain James supposes, contend "that unfortified towns will never be bombarded or ransomed."
International law has never prohibited, though it has attempted to restrict, the bombardment of such towns. Even in 1694 our Government defended the destruction of Dieppe, Havre, and Calais only as a measure of retaliation, and in subsequent naval wars operations of this kind have been more and more carefully limited, till in the Crimean war our cruisers were careful to abstain from doing further damage than was involved in the confiscation or destruction of stores of arms and provisions. The principles involved were carefully considered by the military delegates of all the States of Europe at the Brussels Conference of 1874, and their conclusions, which apply, I conceive, _mutatis mutandis_, to operations conducted by naval forces against places on land, are as follows:--
"ARTICLE 15.--Fortified places are alone liable to be besieged. Towns, agglomerations of houses, or villages which are open or undefended cannot be attacked or bombarded."
"ARTICLE 16.--But if a town, &c., be defended, the commander of the attacking forces should, before commencing a bombardment, and except in the case of surprise, do all in his power to warn the authorities."
"ARTICLE 40.--As private property should be respected, the enemy will demand from parishes or the inhabitants only such payments and services as are connected with the necessities of war generally acknowledged, in proportion to the resources of the country."
"ARTICLE 41.--The enemy in levying contributions, whether as equivalents for taxes or for payments which should be made in kind, or as fines, will proceed, as far as possible, according to the rules of the distribution and a.s.sessment of the taxes in force in the occupied territory. Contributions can be imposed only on the order and on the responsibility of the general in chief."
"ARTICLE 42.--Requisitions shall be made only by the authority of the commandant of the locality occupied."
These conclusions are substantially followed in the chapter on the "Customs of War" contained in the _Manual of Military Law_ issued for the use of officers by the British War Office.