1Il Principe, cap. 18.

2No! the Hague Regulations, Art. 44: “Any compulsion by a belligerent on the population of occupied territory to give information as to the army of the other belligerent, or as to his means of defense, is prohibited.”

3No! the English Manual of Military Law, ch. xiv, sec. 463.

4Yes! the Hague Regulations, Art. 52: “They must be in proportion to the resources of the country”; and to the same effect the English Manual of Military Law, sec. 416, and the British Requisitioning Instructions.

5Yes! the Hague Regulations, Arts. 23 and 52; also Actes et Documents (of the Conference), III, p. 120.

6Yes! the Hague Regulations, Art. 2: “The population of a territory which has not been occupied who on the approach of the enemy spontaneously take up arms to resist the invading troops, without having had time to organize themselves in accordance with Article I, shall be regarded as belligerents.”

7The whole of these propositions, revolting as they may appear, are taken almost literally from the text of the War Book, to which I refer the reader for their context.

8Clausewitz: Vom Kriege, I, Kap. 1 (2).

9Ibid. V, Kap. 14 (3). Clausewitz’s definition of requisitions is “seizing everything which is to be found in the country, without regard to meum and tuum.” The German War Book after much prolegomenous sentiment arrives at the same conclusion eventually.

10Kriegsraison I have translated as “the argument of war.” “Necessity of war” is too free a rendering, and when necessity is urged “nÖtig” or “Notwendigkeit” is the term used in the original. Kriegsmanier is literally the “fashion of war” and means the customary rules of which Kriegsraison makes havoc by exceptions.

11Holtzendorff, IV, 378.

12In Holtzendorff’s Handbuch des VÖlkerrechts, passim.

13Baron Marshall von Bieberstein. Actes et Documents (1907), J. 86.

14Actes et Documents (1907), I, 281 (Sir Edward Satow).

15Ibid., p. 282 (Baron Marschall von Bieberstein), and p. 86.

16Holtzendorff, III, pp. 93, 108, 109.

17Ibid. The whole subject (of the neutrality of Belgium) is examined by the present writer in War, its Conduct and its Legal Results (John Murray).

18Vom Kriege, VIII, Kap. 6 (B).

19The Nation in Arms, sec. 3: “Policy creates the total situation in which the State engages in the struggle”; and again, “it is clear that the political action and military action ought always to be closely united.”

20Germany and the Next War: “The appropriate and conscious employment of war as a political means has always led to happy results.” And again, “The relations between two States must often be termed a latent war which is provisionally being waged in peaceful rivalry. Such a position justifies the employment of hostile methods, just as war itself does, since in such a case both parties are determined to employ them.”

21The Bundesrath is a Second Chamber, a Cabinet or Executive Council, and a Federal Congress of State Governments all in one. Indeed, its resemblance to a Second Chamber is superficial. It can dissolve the Reichstag when it pleases. See Laband, Die Entwickelung des Bundesraths, Jahrbuch des Oeffentlichen Rechts, 1907, Vol. I, p. 18, and also his Deutsches Staatsrecht, Vol. I, passim.

22I have based the remarks which follow on a close study of German, French, and English authorities—among others upon the following: Bismarck, Gedanken und Erinnerungen; Hohenlohe, DenkwÜrdigkeiten; Hanotaux, Histoire de la France Contemporaine; de Broglie, Mission de M. de Gontaut-Biron; Fitzmaurice, The Life of Lord Granville. All these are the works of statesmen who could legitimately say of their times quorum pars magna fui. Lord Fitzmaurice’s book, apart from its being the work of a statesman, whose knowledge of foreign affairs is equaled by few and surpassed by none, is indispensable to a study of Anglo-German relations since 1850, being based on diplomatic sources, in particular the despatches of Lord Odo Russell. Some passages in The Life of Lord Lytton are also illuminating, likewise the essays of that prince of French historians, Albert Sorel. But I have, of course, also gone to the text of treaties and original documents.

23The study which follows is based on cosmopolitan materials: The reader must exercise great caution in using political memories such as those of Bismarck. In autobiography, of all forms of history, as Goethe observes in the preface to Wahrheit und Dichtung, it is supremely difficult for the writer to escape self-deception; he is so apt to read himself backwards and to mistake society’s influence upon him for his influence upon society. In the case of Bismarck in particular, his autobiography often took the form of apologetics, and he invests his actions with a foresight which they did not always possess, while, on the other hand, he is so anxious to depreciate his rivals (particularly Gortchakoff) that he often robs himself of the prestige of victory. Hohenlohe is, in this respect, a far safer guide. He was not as great a man as Bismarck, but he was an infinitely more honest one.

24Gedanken und Erinnerungen, Bd. II, Kap. 29, p. 287.

25Notes of Lord Odo Russell, British Ambassador at Berlin, of a conversation with Bismarck, reported in a despatch of November 22nd, 1870, to Lord Granville, and published in the Parliamentary Papers of 1871 [Cd. 245].

26Gedanken und Erinnerungen, II, Kap. 23.

27See the remarkable articles, based on unpublished documents by M. Hanotaux, in the Revue des deux Mondes, Sept. 15th and Oct. 1st, 1908, on “Le CongrÈs de Berlin.”

28“No man ever had a more effective manner of asseverating, or made promises with more solemn protestations, or observed them less,” Il Principe, Cap. 18.

29Cf. Lord Ampthill’s despatch (Aug. 25th, 1884). “He has discovered an unexplored mine of popularity in starting a colonial policy which public opinion persuades itself to be anti-English, and the slumbering theoretical envy of the Germans at our wealth and our freedom has taken the form of abuse of everything English in the Press.”—Fitzmaurice’s Granville, II, 358.

30For a careful examination of the story see Fitzmaurice, II, 234 and 429.

31There is a spirited, but not altogether convincing, vindication of Ferry in Rambaud’s Jules Ferry, p. 395. It is not Ferry’s honesty that is in question, but his perspicacity.

32Its profound reactions have been worked out by the hand of a master in Sorel’s L’Europe et la RÉvolution franÇaise, and, in particular, in his La Question d’Orient, which is a searching analysis of these tortuous intrigues.

33Cf. Bismarck’s Erinnerungen (the chapter on the Alvensleben Convention): “It was our interest to oppose the party in the Russian Cabinet which had Polish proclivities ... because a Polish-Russian policy was calculated to vitalize that Russo-French sympathy against which Prussia’s effort had been directed since the peace of Paris.”

34Life of Lord Lytton, II, pp. 260 seq. On the whole story see Hohenlohe passim; also Hanotaux, Vol. III, ch. iv; de Broglie’s Gontaut-Biron and Fitzmaurice’s Granville. The cheerfully malevolent Busch is also sometimes illuminating.

35It was on this occasion that, according to Hanotaux, quoting from a private document of the Duc Decazes, Lord Odo Russell reported an interview with Bismarck, in which the latter said he wanted “to finish France off.”

36Cf. Albert Sorel: “La diplomatie est l’expression des moeurs politiques”; and cf. his remarkable essay, “La Diplomatie et le progrÉs,” in Essais d’histoire et de critique.

37June 3rd, 1906, in a remarkable article entitled “Holstein,” which is a close study of the inner organization of the German Foreign Office and its traditions.

38[The word used is “geistig,” as to the exact meaning of which see translator’s footnote to page 72. What the passage amounts to is that the belligerent should seek to break the spirit of the civil population, terrorize them, humiliate them, and reduce them to despair.—J.H.M.]

39Moltke, in his well-known correspondence with Professor Bluntschli, is moved to denounce the St. Petersburg Convention which designs as “le seul but lÉgitime” of waging war, “l’affaiblissement des forces militaires,” and this he denies most energetically on the ground that, on the contrary, all the resources of the enemy, country, finances, railways, means of subsistence, even the prestige of the enemy’s government, ought to be attacked. [This, of course, means the policy of “Terrorismus,” i.e., terrorization.—J.H.M.]

40[“Den geistigen StrÖmungen.” “Intellectual” is the nearest equivalent in English, but it barely conveys the spiritual aureole surrounding the word.—J.H.M.]

41[The General Staff always refers to the war of 1870 as “the German-French War.”—J.H.M.]

42Art. 9 (1).

43The necessity of an adequate mark of distinction was not denied even on the part of the French in the violent controversy which blazed up between the German and French Governments on the subject of the Franctireurs in the war of 1870–1. The dispute was mainly concerned with the question whether the marks worn by the Franctireurs were sufficient or not. This was denied on the German side in many cases with all the greater justification as the usual dress of the Franctireurs, the national blue, was not to be distinguished from the customary national dress, as it was merely a blouse furnished with a red armlet. Besides which, on the approach of German troops, the armlet was often taken off and the weapons were concealed, thereby offending against the principle of open bearing. These kind of offenses, as also the lack of a firm organization and the consequent irregularities, were the simple reason why stern treatment of the Franctireurs in the Franco-Prussian War was practised and had necessarily to be practised.

44The effacement of the distinction between fighting forces and peaceful population on the part of the Boers no doubt made many of the severities practised by the English necessary.

45[i.e., the condition as to having a distinctive mark. So too, the Hague Regulations dispense with the other condition (of having a responsible leader and an organization) in such a case of a levÉe en masse. See Regulations, Art. II.—J.H.M.]

46Professor Dr. C. LÜder, Das Landkriegsrecht, Hamburg, 1888. [This is the amiable professor who writes in Holtzendorff’s Handbuch des VÖlkerrechts (IV, 378) of “the terrorism so often necessary in war.”—J.H.M.]

[The above paragraph, it will be observed, completely throws over Article II of the Hague Regulations extending protection to the defenders of their country.—J.H.M.]

47Notoriously resorted to very often in the war of the Spanish against Napoleon.

48Napoleon was, in the year 1815, declared an outlaw by the Allies. Such a proceeding is not permissible by the International Law of to-day since it involves an indirect invitation to assassination. Also the offer of a reward for the capture of a hostile prince or commander as occurred in August, 1813, on the part of the Crown Prince of Sweden in regard to Napoleon, is no longer in harmony with the views of to-day and the usages of war. [But to hire a third person to assassinate one’s opponent is claimed by the German General Staff (see II, b, below) as quite legitimate.—J.H.M.]

49As against this there have been many such offenses committed in the wars of recent times, principally on the Turkish side in the Russo-Turkish War.

50This prohibition was often sinned against by the French in the war of 1870–71. Cp. Bismarck’s despatches of Jan. 9th and Feb. 7th, 1871; also Bluntschli in Holtzendorff’s Jahrbuch, I, p. 279, where a similar reproach brought against the Baden troops is refuted.

51If we have principally in view the employment of uncivilized and barbarous troops on a European seat of war, that is simply because the war of 1870 lies nearest to us in point of time and of space. On a level with it is the employment of Russo-Asiatic nationalities in the wars of emancipation, of Indians in the North-American War, of the Circassians in the Polish Rising, of the Bashi-bazouks in the Russo-Turkish War, etc. As regards the Turcos, a Belgian writer Rolin-JacquÉmyns said of them in regard to the war of 1859, “les allures et le conduite des Turcos avaient soulevÉ d’universels dÉgoÛts.” On the other side it is not to be forgotten that a section of the French Press in 1870 praised them precisely because of their bestialities and incited them to such things, thus in the Independance algerienne: “ArriÈre la pitiÉ! arriÈre les sentiments d’humanitÉ! Mort, pillage et incendie!”

52Recent examples: the capture of the King of Saxony by the Allies after the Battle of Leipzig, and also of Napoleon, that of the Elector of Hesse, 1866, Napoleon III, 1870, Abdel-Kader, 1847, and Schamyl, 1859.

53In this light must be judged the measures taken in 1866 by General Vogel von Falckenstein against certain Hanoverian citizens although these measures have often been represented in another light.

54Thus the French prisoners in 1870–1 were very thankful to find employment in great numbers as harvest workers, or in the counting houses of merchants or in the factories of operatives or wherever an opportunity occurred, and were thereby enabled to earn extra wages.

55Thus General von Falckenstein in 1870, in order to check the prevalent escaping of French officers, commanded that for every escape ten officers whose names were to be determined by drawing lots should be sent off, with the loss of all privileges of rank, to close confinement in a Prussian fortress, a measure which was, indeed, often condemned but against which nothing can be said on the score of the law of nations.

56[Professor] Lueder, Das Landkriegsrecht, p. 73.

57What completely false notions about the right of killing prisoners of war are prevalent even among educated circles in France is shown by the widely-circulated novel Les Braves Gens, by Margueritte, in which, on page 360 of the chapter “Mon Premier,” is told the story, based apparently on an actual occurrence, of the shooting of a captured Prussian soldier, and it is excused simply because the information given by him as to the movements of his own people turned out to be untrue. The cowardly murder of a defenseless man is regarded by the author as a stern duty, due to war, and is thus declared to be in accordance with the usages of war. [The indignation of the German General Staff is somewhat overdone, as a little further on (see the chapter on treatment of inhabitants of occupied territory) in the War Book they advocate the ruthless shooting or hanging of an inhabitant who, being forced to guide an enemy army against his own, leads them astray.—J.H.M.]

58In Austria the giving of one’s parole whether by troops or officers is forbidden.

59Monod, Allemands et FranÇais, Souvenirs de Campagne, p. 39: “I saw again at Tours some faces which I had met before Sedan; among them were, alas! officers who had sworn not to take up arms again, and who were preparing to violate their parole, encouraged by a Government in whom the sense of honor was as blunted as the sense of truth.”

60In the year 1870, 145 French officers, including three Generals, one Colonel, two Lieutenant-Colonels, three Commandants, thirty Captains (Bismarck’s Despatch of December 14th, 1870), were guilty of breaking their parole. The excuses, afterwards put forward, were generally quite unsound, though perhaps there may have been an element of doubt in some of the cases so positively condemned on the German side. The proceedings of the French Government who allowed these persons without scruple to take service again were subsequently energetically denounced by the National Assembly.

61To a petition of the diplomatists shut up in Paris to be allowed to send a courier at least once a week, Bismarck answered in a document of September 27th, 1870, as follows: “The authorization of exchange of correspondence in the case of a fortress is not generally one of the usages of war; and although we would authorize willingly the forwarding of open letters from diplomatic agents, in so far as their contents be not inconvenient from a military point of view, I cannot recognize as well founded the opinion of those who should consider the interior of the fortifications of Paris as a suitable center for diplomatic relations.”

62“In the year 1870 the greatest mildness was practised on the German side towards the French fortresses. At the beginning of the siege of Strassburg it was announced to the French Commander that free passage was granted to the women, the children, and the sick, a favor which General Uhrich rejected, and the offer of which he very wisely did not make known to the population. And when later three delegates of the Swiss Federal Council sought permission in accordance with the resolution of the Conference at Olten, of September 7th, to carry food to the civil population in Strassburg and to conduct non-combatants out of the town over the frontier, both requests were willingly granted by the besieger and four thousand inhabitants left the fortress as a result of this permission. Lastly, the besiegers of Belfort granted to the women, children, aged, and sick, free passage to Switzerland, not indeed immediately at the moment chosen by the commander Denfert, but indeed soon after” (Dahn, I, p. 89). Two days after the bombardment of Bitsch had begun (September 11th) the townsfolk begged for free passage out of the town. This was, indeed, officially refused; but, none the less, by the indulgence of the besieger, it was effected by a great number of townspeople. Something like one-half of the 2,700 souls of the civil population, including the richest and most respectable, left the town (Irle, die Festung Bitsch. BeitrÄge zur Landes- und VÖlkerkunde von Elsass-Lothringen).

63Hartmann, Krit. Versuche, II, p. 83.

64Staatsanzeiger, August 26th, 1870.

65Considering the many unintelligible things written on the French side about this, the opinion of an objective critic is doubly valuable. Monod, p. 55, op. cit., says: “I have seen Bazeilles burning; I have informed myself with the greatest care as to how things happened. I have questioned French soldiers, Bavarian soldiers, and Bavarian inhabitants present at this terrible drama; I am able to see in it only one of the frightful, but inevitable, consequences of the war.” As to the treatment of Chateaudun, stigmatized generally on the French side as barbarous, the author writes (p. 56): “The inhabitants of Chateaudun, regularly organized as part of the National Guard, aided by the franctireurs of Paris, do not defend themselves by preparing ambushes but by fighting as soldiers. Chateaudun is bombarded; nothing could be more legitimate, since the inhabitants made a fortress of it; but once they got the upper hand the Bavarians set fire to more than one hundred houses.” The picture of outrages by Germans which follows may be countered by what the author writes in another place about the French soldiers: “The frightful scenes at the taking of Paris by our troops at the end of May, 1871, may enable us to understand what violences soldiers allow themselves to be drawn into, when both excited and exhausted by the conflict.”

66“One makes use in war of the skin of the lion or the fox indifferently. Cunning often succeeds where force would fail; it is therefore absolutely necessary to make use of both; sometimes force can be countered by force, while on the other hand force has often to yield to cunning.”—Frederick the Great, in his General Principles of War, Art. xi.

67Also the pretense of false facts, as, for example, practised by Murat on November 13th, 1805, against Prince Auersperg, in order to get possession of the passage of the Danube at Florisdorf; the like stratagem which a few days later Bagration practised against Murat at Schongraben; the deceptions under cover of their word of honor practised by the French Generals against the Prussian leaders in 1806 at Prenzlau; these are stratagems which an officer in the field would scarcely dare to employ to-day without being branded by the public opinion of Europe.

68In the most recent times a change of opinion seems to have taken place. Bluntschli in his time holds (sec. 565) the use of the distinguishing marks of the enemy’s army—uniforms, standards, and flags—with the object of deception, to be a doubtful practise, and thinks that this kind of deception should not extend beyond the preparations for battle. “In battle the opponents should engage one another openly, and should not fall on an enemy from behind in the mask of a friend and brother in arms.” The Manual of the Institute of International Law goes further. It says in 8 (c and d): “Il est interdit d’attaquer l’ennemi en dissimulant les signes distinctifs de la force armÉe; d’user indÛment du pavillon national, des insignes militaires ou de l’uniforme de l’ennemi.” The Declaration of Brussels altered the original proposition, “L’emploi du pavillon national ou des insignes militaires et de l’uniforme de l’ennemi est interdit” into “L’abus du pavillon national.”

69Cp. Boguslawski, Der kleine Krieg, 1881, pp. 26, 27.

70[The Hague Regulations, Art. 23, to which Germany was a party, declares it is prohibited: “To make improper use of a flag of truce, the national flag, or military ensigns and the enemy’s uniform, as well as the distinctive badges of the Geneva Convention.”—J.H.M.]

71[This represents the German War Book in its most disagreeable light, and is casuistry of the worst kind. There are certain things on which International Law is silent because it will not admit the possibility of their existence. As Professor Holland well puts it (The Laws of War on Land, p. 61), in reference to the subject of reprisals the Hague Conference “declined to seem to add to the authority of a practise so repulsive” by legislating on the subject. And so with assassination. It can never be presumed from the Hague or other international agreements that what is not expressly forbidden is thereby approved.]

72[Professor] Bluntschli, VÖlkerrecht, p. 316.

73[Professor] LÜder, Handbuch des VÖlkerrechts, p. 90.

74To judge espionage with discrimination according to motives does not seem to be feasible in war. “Whether it be a patriot who devotes himself, or a wretch who sells himself, the danger they run at the hands of the enemy will be the same. One will respect the first and despise the second, but one will shoot both.”—Quelle I, 126. This principle is very ancient. As early as 1780 a North-American court-martial condemned Major AndrÉ, an Englishman, to death by hanging, and in vain did the English Generals intercede for him, in vain did he plead himself, that he be shot as a soldier.

75The want of an adequate authorization led in 1874 to the shooting of the Prussian newspaper correspondent Captain Schmidt by the Carlists, which raised a great outcry. Schmidt was armed with a revolver, with maps of the seat of war, and also with plans and sketches of the Carlists’ positions, as against which he had only an ordinary German passport as a Prussian Captain and was seized within the Carlists’ outpost, and since he could not defend himself, verbally, on account of his ignorance of the Spanish language, he was convicted as a spy by court-martial and shot.

76In the Egyptian Campaign in 1882 the English War Office published the following regulations for newspaper correspondents. [The translator does not think it necessary to reproduce these.]

77In Turkey, in place of the Red Cross a red half-moon was introduced, and was correspondingly respected by the Russians in the campaign of 1877. Japan, on the contrary, has waived its original objection to the cross.

78That in the war of 1870 the Red Cross was frequently abused on the French side is well known, and has been the subject of documentary proof. The escape of Bourbaki from Metz, under cover of the misuse of the Geneva Convention, proves that even in the highest circles people were not clear as to the binding obligation of International Regulations, and disregarded them in the most frivolous manner.

79[But the English legislature has, by the Geneva Convention Act, 1911 (1 and 2 Geo. V, c. 20) made it a statutory offense, punishable on summary conviction by a fine not exceeding £10, to use the heraldic emblem of the Red Cross or the words “Red Cross” for any purpose whatsoever, if the person so using it has not the authority of the Army Council for doing so.—J.H.M.]

80How different the conditions of capitulation may be the following examples will show:

Sedan: (1) The French army surrender as prisoners of war. (2) In consideration of the brave defense all Generals, Officers, and Officials occupying the rank of Officers, will receive their freedom so soon as they give their word of honor in writing not to take up arms again until the end of the war, and not to behave in a manner prejudicial to the interests of Germany. The officers and officials who accept these conditions are to keep their arms and their own personal effects. (3) All arms and all war material consisting of flags, eagles, cannons, munitions, etc., are to be surrendered and to be handed over by a French military commission to German commissioners. (4) The fortress of Sedan is to be immediately placed at the disposition (of the Germans) exactly as it stands. (5) The officers who have refused the obligation not to take up arms again, as well as the troops, shall be disarmed and organized according to their regiments or corps to go over in military fashion. The medical staff are without exception to remain behind to look after the wounded.

Metz: The capitulation of Metz allowed the disarmed soldiers to keep their knapsacks, effects, and camp equipment, and allowed the officers who preferred to go into captivity, rather than give their word of honor, to take with them their swords, or sabers, and their personal property.

Belfort: The garrison were to receive all the honors of war, to keep their arms, their transport, and their war material. Only the fortress material was to be surrendered.

Bitsch (concluded after the settlement of peace): (1) The garrison retires with all the honors of war, arms, banners, artillery, and field pieces. (2) As to siege material and munitions of war a double inventory is to be prepared. (3) In the same way an inventory is to be taken of administrative material. (4) The material referred to in Articles 2 and 3 is to be handed over to the Commandant of the German forces. (5) The archives of the fortress, with the exception of the Commandant’s own register, are left behind. (6) The customs officers are to be disarmed and discharged to their own homes. (7) The canteen-keepers who wish to depart in the ordinary way receive from the local commandant a pass visÉd by the German local authorities. (8) The local Commandant remains after the departure of the troops at the disposal of the German higher authorities till the final settlement; he binds himself on his word of honor not to leave the fortress. (9) The troops are transported with their horses and baggage by the railroad. (10) The baggage left behind in Bitsch by the officers of the 1st and 5th Corps will be sent later to an appointed place in France, two non-commissioned officers remain to guard it and later to send it back under their supervision.

Nisch (January 10th, 1878): [The translator has not thought it necessary to reproduce this.]

81Thus, in August, 1813, the numerous trespasses across the frontier on the part of French detachments and patrols led to the entry of the Silesian army into the neutral territory and therewith to a premature commencement of hostilities. Later inquiries show that these trespasses were committed without the orders of a superior and that, therefore, the French staff cannot be reproached with a breach of the compact; but the behavior of BlÜcher was justified in the circumstances and in any case was based upon good faith.

82We have here in mind not exclusively intentionally untrue communications, although these also, especially in the Napoleonic war, very frequently occur; very often the untrue communication is made in good faith.

During the fight which took place at Chaffois on January 29th, 1871, when the village was stormed, the cry of Armistice was raised on the French side. A French officer of the General Staff communicated to the Commander of the 14th Division by the presentation of a written declaration the news of an armistice concluded at Versailles for the whole of France. The document presented, which was directed by the Commander-in-Chief of the French Army in the East, General Clinchant, to the Commander of the French Division engaged at Chaffois, ran as follows:

“An armistice of twenty-one days has been signed on the 27th. I have this evening received the official news. Cease fire in consequence and inform the enemy, according to the forms followed in war, that the armistice exists and that you are charged to bring it to his knowledge.

(Signed) Clinchant.”

Pontarlier, January, 29th, 1871.

Of the conclusion of this armistice no one on the German side had any knowledge. None the less hostilities ceased for the time being, pending the decision of the higher authorities. Since on the enemy’s side it was asserted that a portion of the French troops in Chaffois had been made prisoners after the news of the existence of the armistice was communicated, and the order to cease fire had been given, some thousand French prisoners were set free again in recognition of this possibility, and the arms which had been originally kept back from them were later restored to them again. When the proceedings at Chaffois were reported, General von Manteuffel decided on the 30th January as follows:

“The news of an armistice for the Army of the South is false; the operations are to be continued, and the gentlemen in command are on no other condition to negotiate with the enemy than that of laying down their arms. All other negotiations are, without any cessation of hostilities, to be referred to the Commander-in-Chief.”

83[It will be observed that no authority is given for this statement.—J.H.M.]

84See as to this: Rolin-Jacquemyns, II, 34; and Dahn, Der Deutsch-FranzÖsische Krieg und das VÖlkerrecht.

85[See Editor’s Introduction for criticism of this brutality.—J.H.M.]

86[Ibid.]

87For example, the carrying off of forty leading citizens from Dijon and neighboring towns as reprisals against the making prisoners of the crew of German merchantmen by the French (undoubtedly contrary to the law of nations), the pretense being that the crews could serve to reenforce the German navy (a pretense strikingly repudiated by Bismarck’s Notes of October 4th and November 16th, 1870). LÜder, Das Landkriegsrecht, p. 111.

88Proclamation of the Governor-General of Alsace, and to the same effect the Governor-General of Lorraine of October 18th, 1870.

89See Loning, Die Verwaltung des General-gouvernements im Elsass, p. 107.

90For a state of war the provisions of the Prussian Law of June 4th, 1861, still hold good to-day. According to this law all the inhabitants of the territory in a state of siege are subject to military courts in regard to certain punishable proceedings.

91J. von Hartmann, Kritische Versuche, II, p. 73.

92LÜder, Das Landkriegsrecht, p. 103.

93Obviously we are only speaking of a war between civilized people since, in the case of savages and barbarians, humanity is not advanced very far, and one cannot act otherwise toward them than by devastation of their grain fields, driving away their herds, taking of hostages, and the like.

94Army Order of August 8th, 1870, on crossing the frontier:

“Soldiers! the pursuit of the enemy who has been thrust back after bloody struggles has already led a great part of our army across the frontier. Several corps will to-day and to-morrow set foot upon French soil. I expect that the discipline by which you have hitherto distinguished yourselves will be particularly observed on the enemy’s territory. We wage no war against the peaceable inhabitants of the country; it is rather the duty of every honor-loving soldier to protect private property and not to allow the good name of our army to be soiled by a single example of bad discipline. I count upon the good spirit which animates the army, but at the same time also upon the sternness and circumspection of all leaders.

Headquarters, Homburg, August 8th, 1870.
(Signed) Wilhelm.”

95“It is well known that the vineyards in France were guarded and protected by the German troops, but the same thing happened in regard to the art treasures of Versailles, and the German soldiers protected French property at the risk of their lives against the incendiary bombs of the Paris Commune.”—LÜder, Landkriegsrecht, p. 118.

96Bluntschli, VÖlkerrecht, sec. 652.

97[These terms are translated literally. They are roughly equivalent to the English distinction between “real” and “personal” property.—J.H.M.]

98To be entirely distinguished from municipal funds which are regarded as private property.

99How sensitive, indeed, how utterly sentimental, public opinion has become to-day in regard to this question, is shown by the attitude of the French and German Press in regard to some objects of art carried away from China.

100As to booty in the shape of horses, the Prussian instructions say: “Horses taken as booty belong to the State and are therefore to be handed over to the horse depot. For every horse which is still serviceable he who has captured it receives a bonus of 18 dollars out of the exchequer, and for every unserviceable horse half this sum.”

101Napoleon, who actually permitted his soldiers to plunder in numerous cases and in others, at least, did not do his best to prevent it, spoke of it at St. Helena: “Policy and morality are in complete agreement in their opposition to pillage. I have meditated a good deal on this subject; I have often been in a position to gratify my soldiers thereby; I would have done it if I had found it advantageous. But nothing is more calculated to disorganize and completely ruin an army. From the moment he is allowed to pillage, a soldier’s discipline is gone.”

102Dahn, Jahrbuch f. A.u.M., III, 1876. Jacquemyns Revue.

103Dahn, ibid., III, 1871.

104The King of Denmark in 1715, whilst Charles XII, after the Battle of Pultawa, stayed for years in Bender, sold the conquered principalities of Bremen and Verden to the King of England, Elector of Hanover, before England had yet declared war on Sweden. This undoubtedly unlawful act of England first received formal recognition in the Peace of Stockholm, 1720.

105The German administration desired that, as hitherto, justice should be administered in the name of the Emperor (Napoleon III). The Court, on the contrary, desired, after the revolution of September 4th, 1870, to use the formula: “In the name of the French Republic.” The Court no longer recognized the Emperor as Sovereign, the German authorities did not yet recognize the Republic. Finally the Court, unfortunately for the inhabitants, ceased its activities. The proper solution would have been, according to Bluntschli (547), either the use of a neutral formula, as, for example, “In the name of the law,” or the complete omission of the superfluous formula.

106Stein, Revue 17, Declaration of Brussels, Article 6.

107Manuel 51; Moynier, Revue, XIX, 165.

108Article 42 of the Hague Regulations runs: “Territory is considered to be occupied when it is placed as a matter of fact under the authority of the hostile army. The occupation extends only to territories where that authority is established and capable of being exercised.”

109The passage of French troops through Prussian territory in October, 1805, was a contempt of Prussian neutrality.—The moment the Swiss Government permitted the Allies to march through its territory in the year 1814, it thereby renounced the rights of a neutral State.—In the Franco-Prussian War the Prussian Government complained of the behavior of Luxemburg in not stopping a passage en masse of fugitive French soldiers after the fall of Metz through the territory of the Grand Duchy.

110The considerable reenforcement of the Servian Army in the year 1876 by Russian Freelances was an open violation of neutrality, the more so as the Government gave the officers permission, as the Emperor himself confessed later to the English Ambassador in Livadia. The English Foreign Enlistment Act of 1870, Art. 4,A forbids all English subjects during a war in which England remains neutral, to enter the army or the navy of a belligerent State, or the enlistment for the purpose, without the express permission of the Government. Similarly the American law of 1818. The United States complained energetically during the Crimean War of English recruiting on their territory.

111At the end of August, 1870, some French detachments, without its being known, marched through Belgian territory; others in large numbers fled after the Battle at Sedan to Belgium, and were there disarmed. In February, 1871, the hard-pressed French Army of the East crossed into Switzerland and were there likewise disarmed.

112In the negotiations in 1793, as to the neutrality of North America in the Anglo-French War, Jefferson declared: “The right of the citizens to fashion, sell, and export arms cannot be suspended by a foreign war, but American citizens pursue it on their own account and at their own risk.”—Bluntschli, sec. 425 (2). Similarly in the famous treaty between Prussia and the United States of September 10th, 1785, it was expressly fixed in Article 13 that if one of the two States was involved in war and the other State should remain neutral, the traders of the latter should not be prevented from selling arms and munitions to the enemy of the other. Thus the contraband articles were not to be confiscated, but the merchants were to be paid the value of their goods by the belligerent who had seized them. This arrangement was, however, not inserted in the newer treaties between Prussia and the Union in 1799 and 1828.

113In the exchange of despatches between England and Germany which arose out of the English deliveries of arms, the English Minister, Lord Granville, declares, in reply to the complaints of the German Ambassador in London, Count Bernstorff, that this behavior is authorized by the preexisting practise, but adds that “with the progress of civilization the obligations of neutrals have become more stringent, and declares his readiness to consult with other nations as to the possibility of introducing in concert more stringent rules, although his expectations of a practical result are, having regard to the declarations of the North-American Government, not very hopeful.” President Grant had, it is true, already in the Neutrality Proclamation of August 22nd, 1870, declared the trade in contraband in the United States to be permitted, but had uttered a warning that the export of the same over sea was forbidden by international law. He had later expressly forbidden the American arsenal administration to sell arms to a belligerent, an ordinance which was of course self-evident and was observed even in England, but he did not attempt to prevent dealers taking advantage of the public sale of arms out of the State arsenals to buy them for export to the French.

114Belgium allowed itself, in August, 1870, owing to the opposition of France, to be talked into forbidding the transport of wounded after the Battle of Sedan, through Belgian territory, and out of excessive caution interpreted its decree of August 27th as amounting to a prohibition of the transport even of individual wounded. The French protest was based on the contention that by the transport of wounded through Belgium, the military communication of the enemy with Germany was relieved from a serious hindrance. “On such a ground”—thinks Bluntschli (p. 434)—“one might set one’s face against the transport of large numbers but not the transport of individuals. These considerations of humanity should decide.”

115Dr. A. W. Heffter, Das EuropÄische VÖlkerrecht der Gegenwart (7th ed.), 1882, p. 320.