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INTRODUCTION

The immediate object of the publication of the present volume, and particularly of the paper which gives to it its distinctive title, is to contribute something towards the restoration of that sanity of thinking and legal and historical perspective which the recent so-called World War has so seriously disturbed. All wars tend, in proportion to their duration, extent and intensity, to unsettle existing conditions and subvert accepted beliefs. This is one of the necessary results of that intense preoccupation with immediate exigencies which war necessarily entails.

Heretofore this disturbing influence has been distinctly perceived and taken into account in estimating the effect of war on previously established rules, but it seems to have been reserved for the present time and for certain environments to accept the view that the international law of the future is to be found in the infringement of its rules committed under the stress of war.

It is an ancient legal maxim that in the midst of arms the laws are silent-inter arma leges silent. In its origin, this was a maxim not of international law but of municipal law, public and private. It simply means that, under the stress of a contest by force, when men are struggling with arms in their hands for mastery, violations of law are bound to occur because the means of securing the observance of law are reduced to a minimum. When, in the early days of the civil war in the United States, the administration was charged with infringements of the Constitution, an elated Senator retorted that he approved the administration's acts in precise proportion to their violation of that fundamental law. But it was not sur

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mised that the Constitution had perished, nor did it cease to exercise a guiding and restraining power. We do not instinctively look for the exact observance of law between firing lines, where the benevolent duty to live and let live is superseded by the desperate alternative to kill or be killed. Nevertheless, it has not been supposed that, because in the din and struggle of war the laws might for a time be little heard and respected, the law as it previously stood had perished, and that the law of the future was to be found in what was most recently done in war, no matter how flagrant the disregard of prior conceptions of right, justice and humanity might be.

Grotius has been called the founder of international law. In a sense this title may not be justified, since he had his precursors. International law, or the law of nations, had been the subject of treatises before his day. But the immortal pre-eminence he enjoys is due to the fact that, uniting an extraordinary knowledge of the past with a prophetic vision of the future, he raised his voice in behalf of the law at a time when it seemed to be completely prostrate. When Grotius published his celebrated treatise, De Jure Belli ac Pacis, the Thirty Years' War was in the full tide of its destructive progress. Massacre, pillage and famine marked its course. Neither age nor sex was spared, and there was a consummate exhibition of the practical obliteration of the distinction between combatants and non-combatants. Against this brutal infatuation Grotius protested. The distinction between combatants and non-combatants is the vital principle of the modern law of war.

So say the famous General Orders No. 100, of April 24, 1863, for the government of its armies of the United States in the field, which significantly declare that, "as civilization has advanced during the last centuries, so has likewise steadily advanced, especially in war on land, the distinction between the private individual belonging to a

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hostile country and the hostile country itself, with its men in arms"; and that “the principle has been more and more acknowledged that the unarmed citizen is to be spared in person, property, and honor as much as the exigencies of war will admit."

The preservation of this distinction was the very object and foundation of the action of the Washington Conference on the Limitation of Armament in dealing with gas warfare and submarines. In the committee report signed by General Pershing, recommending the abolition of chemical warfare, one of the two reasons given for the recommendation was the fact that the use of poisonous gases “is fraught with the gravest danger to non-combatants and demoralizes the better instincts of humanity.'

No less precise is the report made to the conference by the General Board of the Navy. This report, which is signed by Admiral Rodgers as chairman of the board, adopted as its major premise the declaration that the two principles of warfare, “that unnecessary suffering in the destruction of combatants should be avoided" and "that innocent non-combatants should not be destroyed,” had been "accepted by the civilized world for more than one hundred years”; and, in view of the jeopardy to which these principles were exposed by the use of various kinds of gases, the board expressed the opinion that it would be "sound policy to prohibit gas warfare in every form and against every objective."

And yet there are those who tell us that, as the result of the recent war, the distinction between combatants and non-combatants has perished; or that, if it has not wholly disappeared, it must be considered as having practically succumbed, because the combatant class will in future be held to include not only those who bear arms but all who are in any way able to contribute to the national resources. This phase of thought is illustrated by a recent publisher's circular, which recommends a book on the ground that it teaches that various conditions which developed in the course of the Great War will materially modify the law of war; that one of the first that "will be modified, or even abolished, is that which distinguishes between combatants and non-combatants”; and that, in future wars, “the only non-combatants will be those who are physically unable to contribute anything to the national resources,” this being, it is said, “the inevitable result of organizing a whole nation for war.”

* 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 150.

'Conference on the Limitation of Armament, Washington, November 12, 1921, February 6, 1922, Proceedings, p. 734.

*Report of the General Board of the Navy, presented by Rear Admiral W. L. Rodgers, Chairman: Proceedings of the Conference on the Limitation of Armament, Washington, 1921-1922, pp. 734-736.

The supposed novelty of organizing a whole nation for war is dealt with in the first essay of the present volume, under the title "International Law and Some Current Illusions." "On the other hand, the appalling forecast that in future wars the hard-won but long-established distinction between combatants and non-combatants will be virtually abandoned, has already been discredited by the Washington Conference, so far as the united action of governments in time of peace can do it;"' and in this respect the acts of the Washington Conference are not exceptional.

It may safely be assumed that, even among those who apprehend that the distinction between combatants and non-combatants will be abandoned, no one will be found to deny that this would, for the very reasons by which the prediction is explained, necessarily signify a reversion to conditions abhorrent to every man who cares for law, or for those elementary considerations of humanity the observance of which law is intended to assure. Indeed, so disastrous would the consequences of the concession prove to be, that its hasty sponsors may fairly be asked to

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