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destruction." In a subsequent interview with Señor Godoy, Mr. Kennedy intimated that the destruction of British property in the northern provinces would cost Chile about 10,000,000l. Señor Godoy replied that Chile could and would pay it, and that, in the event of the capture of Iquique or of the commencement of serious hostilities, orders had been given for the destruction of all property which might afford resources to the opposition for the maintenance of the revolution.

Blue Book, Chile, No. 1 (1892), 17, 18, 104–105, 261.

"Dealing with the question of the Peking astronomical instruments, Count von Bülow explained that they had not been restored because the Chinese Government attached no importance to their possession and in reply to German inquiries had placed them at the disposition of the German Government. Another consideration was that in accordance with the peculiar views of the Chinese the great mass of that people would have supposed that the instruments were restored by order of the Chinese Government, which would have damaged the German position in East Asia. The Dowager Empress of China, a very clever woman who understood the political situation, would have been distinctly offended, while the masses would have thought that Germany had sustained some terrible defeats. The instruments ought now to be placed in that category of presents from government to government which had long been customary on both sides in intercourse with the Chinese Government. (Interruptions on the left. The President rang his bell.)"

The London Times, weekly, March 7, 1902, p. 148.

"35. Classical works of art, libraries, scientific collections, or precious instruments, such as astronomical telescopes, as well as hospitals, must be secured against all avoidable injury, even when they are contained in fortified places whilst besieged or bombarded.

"36. If such works of art, libraries, collections, or instruments belonging to a hostile nation or government, can be removed without injury, the ruler of the conquering state or nation may order them to be seized and removed for the benefit of the said nation. The ultimate ownership is to be settled by the ensuing treaty of peace.

"In no case shall they be sold or given away, if captured by the armies of the United States, nor shall they ever be privately appropriated, or wantonly destroyed or injured."

Instructions for the Government of Armies of the United States in the

Field, General Orders, No. 100, April 24, 1863, War of the Rebellion,
Official Records, series 3, III. 152.

(6) PROHIBITED IMPLEMENTS.

§ 1124.

"On the whole it may be said generally that weapons are illegitimate which render death inevitable or inflict distinctly more suffering than others, without proportionately crippling the enemy. Thus poisoned arms have long been forbidden, and guns must not be loaded with nails or bits of iron of irregular shape. To these customary prohitions the European powers, except Spain, have added as between themselves the abandonment of the right to use explosive projectiles weighing less than fourteen ounces; and in the declaration of St. Petersburg, by which the renunciation of the right was effected in 1868, they took occasion to lay down that the object of the use of weapons in war is 'to disable the greatest possible number of men, that this object would be exceeded by the employment of arms which needlessly aggravate the sufferings of disabled men, or render their death inevitable, and that the employment of such arms would therefore be contrary to the laws of humanity.""

Hall, Int. Law (5th ed.), 531-532.

The plenipotentiaries at the Peace Conference at The Hague," duly authorized to that effect by their Governments, inspired by the sentiments which found expression in the declaration of St. Petersburg of the 29th November (11th December), 1868, declare that: The Contracting Powers agree to prohibit, for a term of five years, the launching of projectiles and explosives from balloons, or by other new methods of similar nature. The present Declaration is only binding on the Contracting Powers in case of war between two or more of them. It shall cease to be binding from the time when, in a war between the Contracting Powers, one of the belligerents is joined by a non-Contracting Power."

Declaration signed at The Hague, July 29, 1899, between Austria-Hungary,
Belgium, China, Denmark, France, Germany, Greece, Italy, Japan,
Luxemburg, Mexico, Montenegro, the Netherlands, Persia, Portugal,
Roumania, Russia, Servia, Siam, Spain, Sweden and Norway, Switzer-
land, Turkey, the United States, and Bulgaria. (32 Stat. II. 1839.)
Provision was made for the adhesion of nonsignatory powers. (Id. 1840.)
See For. Rel. 1899, 513, 519.

In the programme of The Hague Conference, embraced in the Russian cir-
cular of Dec. 30, 1898, there were the following articles: "2. Inter-
diction of the employment in armies and fleets of new firearms of
every description and of new explosives, as well as powder more
powerful than the kinds used at present, both for guns and cannons.
3. Limitation of the use in field fighting of explosives of a formidable
power, such as now in use, and prohibition of the discharge of any
kind of projectiles or explosives from balloons or by similar means.
4. Prohibition of the use in naval battles of submarine or diving

torpedo boats, or of other engines of destruction of the same nature; agreement not to construct in the future warships armed with rams." "The second, third, and fourth articles, ... seem lacking in practicability, and the discussion of these propositions would probably prove provocative of divergence rather than unanimity of view. It is doubtful if wars are to be diminished by rendering them less destructive, for it is the plain lesson of history that the periods of peace have been longer protracted as the cost and destructiveness of war have increased. The expediency of restraining the inventive genius of our people in the direction of devising means of defense is by no means clear, and considering the temptations to which men and nations may be exposed in a time of conflict, it is doubtful if an international agreement to this end would prove effective. The dissent of a single powerful nation might render it altogether nugatory. The delegates are, therefore, enjoined not to give the weight of their influence to the promotion of projects the realization of which is so uncertain." (Instructions to the United States delegates to The Hague Conference, April 18, 1899, For. Rel. 1899, 511, 512.) "As to that portion of the work of the first committee which concerned the limitations of invention and the interdiction of sundry arms, explosives, mechanical agencies, and methods heretofore in use or which might possibly be hereafter adopted, as regards warfare by land and sea, namely, articles 2, 3, and 4, the whole matter having been divided between Captains Mahan and Crozier so far as technical discussion was concerned, the reports made by them from time to time to the American commission formed the basis of its final action on these subjects in the first committee and in the conference at large.

"The American commission approached the subject of the limitation of invention with much doubt. They had been justly reminded in their instructions of the fact that by the progress of invention, as applied to the agencies of war, the frequency, and, indeed, the exhausting character of war had been, as a rule, diminished rather than increased. As to details regarding missiles and methods, technical and other difficulties arose which obliged us eventually, as will be seen, to put ourselves on record in opposition to the large majority of our colleagues from other nations on sundry points. While agreeing with them most earnestly as to the end to be attained, the difference in regard to some details was irreconcilable. We feared falling into evils worse than those from which we sought to escape. The annexed reports of Captains Mahan and Crozier will exhibit very fully these difficulties and the decisions thence arising." (Report of the United States delegates to The Hague Conference to the Secretary of State, July 31, 1899, For. Rel. 1899, 513, 515.)

The conference also adopted a declaration prohibiting the use of projectiles having as their sole object the diffusion of asphyxiating or deleterious gases. This, for reasons given in a special report, the American delegates did not sign. It was signed by sixteen delegations, as follows: Belgium, Bulgaria, Denmark, France, Greece, Mexico, Montenegro, the Netherlands, Persia, Portugal, Roumania, Russia, Siam, Spain, Sweden and Norway, and Turkey.

For. Rel. 1899, 513, 519–520.

A declaration was adopted by The Hague Conference prohibiting the use of bullets which expand or flatten easily in the human body, as illustrated by certain given details of construction. This, for technical reasons stated in a separate report, the American delegates did not sign. It was signed by fifteen delegations, as follows: Belgium, Bulgaria, Denmark, France, Greece, Mexico, Montenegro, the Netherlands, Persia, Roumania, Russia, Siam, Spain, Sweden and Norway, and Turkey.

For. Rel. 1899, 513, 520.

The Hague Conference adopted the following resolution: "The conference expressed the wish that questions relative to muskets and marine artillery, such as have been examined by it, should be made the subject of study on the part of the governments with a view of arriving at an agreement concerning the adoption of new types and calibres."

The American delegates voted for this resolution, but a few powers abstained from voting.

For. Rel. 1899, 513, 520.

Cass of Arbuthnot and Ambrister.

(7) UNCIVILIZED WARFARE.

§ 1125.

6

"When at war' (says Vattel) with a ferocious nation which observes no rules, and grants no quarter, they may be chastised in the persons of those of them who may be taken; they are of the number of the guilty; and by this rigor the attempt may be made of bringing them to a sense of the laws of humanity.' And again: 'As a general has the right of sacrificing the lives of his enemies to his own safety, or that of his people, if he has to contend with an inhuman enemy, often guilty of such excesses, he may take the lives of some of his prisoners, and treat them as his own people have been treated. The justification of these principles is found in their salutary efficacy for terror and for example.

"It is thus only that the barbarities of Indians can be successfully encountered. It is thus only that the worse than Indian barbarities of European imposters, pretending authority from their governments, but always disavowed, can be punished and arrested. .

"The two Englishmen executed by order of General Jackson were not only identified with the savages, with whom they were carrying on the war against the United States, but that one of them was the mover and fomenter of the war, which, without his interference, and false promises to the Indians of support from the British Government, never would have happened. The other was the instrument of war

against Spain as well as the United States, commissioned by McGregor, and expedited by Woodbine, upon their project of conquering Florida with these Indians and negroes; that, as accomplices of the savages, and, sinning against their better knowledge, worse than savages, General Jackson, possessed of their persons and of the proofs of their gulit, might, by the lawful and ordinary usages of war, have hung them both without the formality of a trial; that, to allow them every possible opportunity of refuting the proofs, or of showing any circumstance in extenuation of their crimes, he gave them the benefit of trial by a court-martial of highly respectable officers; that the defence of one consisted solely and exclusively of technical cavils at the nature of part of the evidence against him, and the other confessed his guilt."

Mr. Adams, Sec. of State, to Mr. Erving, min. to Spain, Nov. 28, 1818, 4 Am. State Papers, For. Rel. 539, 544; adopted and approved in Lawrence's Wheaton (1863) 588, note 185.

"The court-martial in the case of Arbuthnot and Ambrister consisted of Maj. Gen. E. P. Gaines, president; members, Colonel King, Colonel Williams, Lieutenant-Colonel Gibson, Major Muhlenberg, Major Montgomery, Captain Vashan, Colonel Dyer, LieutenantColonel Lindsay, Lieutenant-Colonel Elliott, Major Fanning, Major Minton, Captain Crittenden, Lieutenant Glassel.

"The commanding general approves the finding and sentence of the court in the case of A. Arbuthnot, and approves the finding and first sentence of the court in the case of Robert C. Ambrister, and disapproves the reconsideration of the sentence of the honorable court in this case.

"It appears from the evidence and pleading of the prisoner that he did lead and command, within the territory of Spain (being a subject of Great Britain), the Indians at war against the United States, these nations being at peace. It is an established principle of the law of nations, that any individual of a nation making war against the citizens of any other nation, they being at peace, forfeits his allegiance and becomes an outlaw and pirate. This is the case with Robert C. Ambrister, clearly shown by the evidence adduced.'

"If the ruling of the court-martial rests upon the reason given by General Jackson when affirming it, it cannot be sustained. It is not a violation of the law of nations for a subject of a peaceful neutral power to volunteer his services to a belligerent; nor does such a volunteer, by taking part in belligerent warfare, forfeit his allegiance or become' an outlaw and pirate. There has been no war in which a part of the combatants on both sides have not been drawn from states at peace with both of the belligerents. This was eminently the case with the American Revolution; the British army be

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