many peaceful and eminently respectable interests are sacrificed to it. Certain of these interests threatened by it can be effectually protected. By strengthening the rights of neutrals, the conference will succeed in restricting the economic field and in circumscribing more narrowly the closed lists of combat. This will be one more of the most efficient means of diminishing the evils of war, and of accomplishing the mission with which the high confidence of the nations has honored us.”

Although General von Gündell, of Germany, and his military colleague from Austria made speeches in reply to M. Eyschen, calling attention to the imperious necessities of generals in the field, the only part of the Luxemburg proposition rejected was the rule that at the beginning of hostilities a sufficient delay should be accorded by each belligerent to neutrals to remove railway rolling stock to their own country. The rest of the Luxemburg proposition was adopted as the fourth rule, and with it two desires (vœux), also proposed by M. Eyschen, and expressed as follows:

"That in case of war the competent military and civil authorities shall make it their especial duty to assure and protect the maintenance of pacific relations, especially commercial and industrial relations, between the inhabitants of the belligerent countries and neutral states.

"That the high contracting powers shall seek to establish, by treaties with each other, uniform agreements concerning the military obligations which each state shall exact of the foreigners settled on its territory."

This last desire was proposed and passed in consequence of the failure of eight propositions made by the German delegation with the object of protecting neutral residents in belligerent lands from the exaction of military services (even though "voluntarily" offered) and from unusual military contributions.

The eight propositions referred

to were subjected to a long discussion, and were objected to chiefly for the reason that the rules proposed by them should be the subject of national, instead of international, legislation. In support of this reason, the differences between "emigrating and immigrating" countries, and between "colonial and non-colonial" countries, were emphasized with the object of showing that a uniform rule applied to all countries alike would not be just. The commission adopted the rules by a feeble majority; but so many reservations to them were made in the plenary session of the conference that they were referred back to the commission with the result that they were there suppressed. In their stead the second desire above quoted was adopted unanimously by both commission and conference.

D. THE LAWS AND CUSTOMS OF WARFARE ON LAND

The Russian programme for the first conference mentioned as its seventh topic: "The revision of the Declaration concerning the laws and customs of war elaborated in 1874 by the Conference of Brussels, which has remained unratified to the present day."

The Conference of Brussels met on the invitation of the Russian government, and was composed of representatives from fourteen of the chief governments of Continental Europe and from Great Britain. The spirit in which it did its work was expressed in the preamble to its declaration in the words:

"It has been asserted unanimously that the progress of civilization should have as its result the utmost possible diminution of the calami

ties of war, and that the sole legitimate end which states should seek during the war is to weaken the enemy without inflicting useless suffering upon him. . . . War, being thus regulated [by definite laws and customs], would entail fewer calamities, and be less subject to the aggravations caused by the uncertainty, the surprises, and the passions involved in the struggle; it would lead more effectually to what should be its final aim, the restoration, namely, of a more substantial and lasting peace between the belligerent states."

The project which this conference drew up was a comprehensive one, containing twelve chapters and fifty-six articles. It did not adopt this code, but referred it to the various governments represented, "as a conscientious inquiry, of a nature to serve as the basis of a later exchange of ideas." Just a quarter of a century later, its project became the basis of the code adopted by the first Hague Conference. Its twelve chapters were reduced to ten, and its fifty-six articles were increased to sixty; while the progress in civilization and in warfare during the quarter century were reflected in the new code in various ways.

In the course of the discussion of these articles in the Conference at The Hague, M. de Martens, of Russia, took occasion to make the following interesting statement as to the origin and motives of the earlier conference:

"His Majesty, Alexander II, convinced of the great importance of formulating a code of the laws and customs of warfare in time of peace when minds and passions are not inflamed, took the initiative in convoking the Conference of Brussels in 1874. The Emperor had in mind well-known facts of history which prove that, in time of war, mutual recriminations and mutual hatred increase the inevitable atrocities of warfare. Moreover, the uncertainty of belligerents as to the laws and customs of war provokes not only hatred, but also useless cruelties committed on the field of battle.

"The initiative of my August Sovereign was not due at all to a new idea. Already, during the War of Secession, President Lincoln

intrusted to Professor Lieber the task of drawing up instructions for the armies of General Grant. These regulations were a great blessing, not only to the troops of the Northern States, but also to those of the Southern Confederates. Such were the circumstances in which the force of events themselves evolved the idea of a regulation of the laws of war. The example was given. The Declaration of Brussels, called forth by Emperor Alexander II, was its logical and natural sequence.

"The importance of this declaration consists in this: for the first time, an international agreement concerning the laws of war was to be established, really compulsory for the armies of modern states and designed to protect inoffensive, peaceable, and unarmed people from the useless cruelties of warfare and from the evils of invasion which are not required by imperious military necessities."

I. BELLIGERENTS

a. The Conference of 1899

The adoption of a code of laws for the regulation of people engaged in warfare necessitates a definition of those to whom the code shall apply. The term belligerent is applied to people engaged in warfare; and the Conference of Brussels defined this term to include not only soldiers in regular armies, but also militia and volunteer corps fulfilling the following conditions: 1. the possession of a leader responsible for his subordinates; 2. the possession of a regular, distinctive emblem recognizable at a distance; 3. the bearing of arms openly; 4. the conduct of warfare in accordance with its laws and customs.1 It further provided that 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

1 Article 1.

accordance with the conditions above stated, shall be regarded as belligerents, if they respect the laws and customs of war.1 It also provided that both combatants and non-combatants may form a part of the armed forces of belligerents, and that, in case of capture by the enemy, both shall be entitled to the rights of prisoners of war.2

When these articles were read for discussion in the first Conference at The Hague, their adoption was opposed by M. Beernaert, of Belgium, who said that, while he recognized their object to be the humane one of reducing the evils of war and the sufferings which it entails, yet he believed them to deal with things which can not be made the subjects of international agreement, and which should be left as they were, under the dominion of that tacit and common law which arises from the principles of the law of nations. “By attempting to restrict war to states alone," he said, "their citizens being left in some sort as simple spectators, shall we not run the risk of reducing the elements of resistance, by enervating the powerful strength of patriotism? Is not the citizen's first duty the defense of his country, and is it not to the accomplishment of this duty that we all owe the finest pages of our national history? To say to citizens that they must not mingle in struggles on which depends the fate of their country,—is that not to encourage that evil indifference which is, perhaps, one of the worst ills from which our time is suffering? Small countries, above all, need to make use of all their resources in making good their defense. . . Will it not be better then to leave this matter to the law of nations and to that ceaseless progress of ideas which the present conference

1 Article 2.

2 Article 3.