had been ordered to hand over their arms, and these were deposited in the church of St. Peter, or were supposed to have been. On the 24th of August, after the main body of the German Army had departed, there was, as the German accounts allege, a simultaneous attack upon the garrison from different parts of the city, thus indicating that the uprising was a part of a concerted plan. Ammunition and weapons were found concealed in the cellars of certain private houses, and a number of priests were alleged to have been caught distributing arms among the inhabitants. The fight lasted two days, during the course of which five German soldiers were wounded.

The Belgian Commission of Inquiry, on the contrary, affirms that the firing was done, not by the inhabitants, but by a number of German soldiers who mistook as Belgians a detachment of their own countrymen returning from Malines where they had been defeated, and therefore fired upon them in the belief that it was the enemy.91 Believing that they had been attacked by the civilian inhabitants, the Germans proceeded by way of reprisal to bombard and burn the city with the results stated above. The evidence now available is not sufficient to warrant us in forming a judgment as to which of the two versions is the correct one, nor is it necessary to the present discussion that this should be done.

We will assume that the German explanation is the correct one, and then consider the question of the lawfulness of the act, which the Germans do not deny to have committed. Before passing immediately to this question, we may call attention to the fact that the destruction of Louvain, with its public buildings, university and cathedral was not an act entirely unparalleled in the history of modern warfare, as has been charged. During the American Civil War, Chambersburg, a small undefended town, was burned by General Early because it refused to pay a contribution levied upon it,92 and there were other well known cases where Southern towns were burned by Federal commanders. During the Crimean War the town of Kertsch, with its museum, formerly a Greek temple, was burned by the English and French. As is well known, the Capitol buildings at Washington were burned by the

91 "Case of Belgium," p. 43.

" It is refreshing to know that this act was disapproved by General Lee. Gordon, Reminiscences, p. 305.

1994

British forces during the War of 1812, and the act was justified by Admiral Cockburn as a legitimate measure of reprisal for shots fired by civilians from one of the buildings. But the act has been almost universally condemned by writers on international law as wholly unjustifiable.93 In 1860, the British and French forces destroyed the Chinese Imperial Summer Palace to "awe the Chinese into respect for British power.' During the American Civil War the Virginia Military Institute at Lexington and most of the professors' houses were burned by General Hunter of the Federal Army.95 In the Austro-Italian War of 1866 churches, hospitals and art collections were destroyed by the Austrian armies.96 During the Franco-German War of 1870-71, many French towns were dealt with in the same manner by the Germans as the Belgian and French towns have been dealt with in the present war. The library of the University of Strassburg, with 400,000 volumes and 2400 manuscripts, an art gallery and various public buildings were destroyed and the tower of the cathedral was burnt.97 During the same war the Abbey of St. Denis was battered to pieces by German shells,98 a Gothic chapel at Toul was ruined, the churches of Longwy, Peronne, and Bitsche were 93 Compare Bordwell, Law of War, p. 63. The whole matter is fully examined in Lawrence's Wheaton, Pt. IV, Ch. II.

94 "This act," observes Riviér, Vol. II, p. 320, "was unworthy of the two European nations which everybody in the Orient considered as the advance guard of civilization and progress. The contents of the palace, statuary, vases, jewelry, and works of art, were seized before the destruction, and a joint commission was appointed to divide the choicest objects between Queen Victoria and Napoleon III. The proceeds from the sale of other objects were divided among the soldiers, the share of each amounting to about 100 francs." Pradier-Fodéré, Vol. VI, p. 1107; Nys, Droit International, Vol. III, p. 326.

95 Gordon, Reminiscences, p. 302.

96 Bolton King, History of Italian Unity, Vol. I, p. 344.

97 Bonfils, sec. 1085, n. 2, and Hozier, The Franco-Prussian War, Vol. II, p. 71. Speaking of the destruction of the Strassburg library, Spaight (p. 186) remarks that "it is hardly a fanciful anticipation to say that this great world loss will make the war of 1870-71 memorable when the politics that led to it and the names of the battles and leaders are forgotten." Sir Henry Hozier, historian of the war, says that "since the apochryphal burning of the library of Alexandria, perhaps no equally irreparable loss has occurred." The German justification for the bombardment of the Cathedral of Strassburg was that the French had installed on the tower an observatory for the artillery officers. Revue de Droit Int. et. de Lég. Comp., Vol. III, p. 303.

98 Bonfils, sec. 1085, n. 2.

made heaps of stone and rubbish and the Invalides, the Sorbonne, The Pantheon, St. Sulpice, the College of Law and several military hospitals of Paris were shelled during the bombardment of that city.99 During the war between Bolivia, Chile and Peru in 1880 the conquerors appropriated the contents of museums and libraries, and boasted of having despoiled the public library and art galleries of Lima of their collections. 100

The right of a belligerent to inflict collective punishment upon the inhabitants of occupied territory for individual acts of the civil population was resorted to with great severity by the British during the Boer War, almost barbarously by Lord Kitchener, says Spaight.101 Not a beast or a field of standing corn was left, we are told. Altogether, says Spaight, the record fills many sombre pages of the British "Blue Book." The legal justification was extremely doubtful as were also the resulting benefits to the belligerent that resorted to such measures. 102

Reference to these cases is made here to show that the German "atrocities" of the present war, now so severely condemned, are not unparalleled in the history of modern civilized warfare, but that, on the contrary, they have been rather common. Some of them, like the burning of Atlanta, have been justified as legitimate acts of military necessity; some, like the destruction of public buildings in Paris and Strassburg, were a necessary incident in the bombardment of those cities or were a measure of reprisal for their use by the enemy for military purposes. Others, like the burning of Boer farms, were justified by the English as a punitive measure for unlawful acts of non-combatants. In passing judgment upon the other cases, the legality of which it is less easy to justify, it is well to remember, however, that at the time those acts were committed, there was far less certainty in regard to the rights of belligerents than now. Much of this uncertainty has happily been

Spaight, pp. 181, 186; and Bonfils, sec. 1085, n. 2.

100 Nys, Droit International, Vol. III, p. 326.

101 P. 137.

102 See on this point Bordwell, The Law of War, pp. 94, 148; and Spaight, pp. 127, 352, 377. The legal justification depends on whether the destruction of the railroads was the act of non-combatants, which is not apparent from the accounts, or of the organized military forces of the Boers. In the latter case there was no justification for the punishment.

removed by general agreement among the body of states, and we now have in the several Hague conventions a fairly definite body of law defining the rights of belligerents and subjecting the exercise of those rights to certain restrictions. It is, therefore, possible to judge the charges made against the Germans of violating the laws of war with more definiteness than was possible at the time of the war of 1870 when no such conventions were in force.

No principle is more clearly established in international law than the right of an occupant to the obedience of the inhabitants of the territory occupied by him and of his right to punish them for disobedience, subject to certain limitations. 103 In regard to the right of a belligerent to inflict punishment in such cases, Article 50 of the annex to the Hague Convention Respecting the Laws and Customs of War on Land provides that "no general penalty, pecuniary or otherwise, shall be inflicted upon the population on account of actions of individuals for which they cannot be regarded as jointly and severally responsible." 104 In the case of Louvain, there is no doubt that the German occupation of the town was effective at the time the acts alleged were committed. The city had surrendered to the invader, the German troops had established their quarters therein, the military authorities had called upon the inhabitants to deliver up their arms, and this had been done or was supposed to have been done.

But assuming, what the Belgians strongly deny, that the Germans were attacked by some of the civilian population, were they justified in inflicting punishment upon the community as a whole? That depends upon whether the alleged acts were such that the individuals committing them could be held jointly and severally responsible. If, as the Germans contend, the alleged attack by the Belgians was simultaneous and the result of a preconcerted arrangement, it was clearly an act for which the inhabitants were jointly responsible. But even assuming that such was the case, and the evidence is far from conclusive, was the punishment a humane and legitimate one? The principle is affirmed by all writers that the punishment in such cases must be reasonable, that is, must not

103 Cf. Merignhac, p. 264; Oppenheim, Vol. II, p. 175; Hall, sec. 156; Bonfils, sec. 1218; Riviér, Vol. II, p. 301; Spaight, p. 113; Halleck, Elements, p. 210; Bordwell, p. 317; Despagnet, sec. 577; Bluntschli, sec. 643 bis; Bentwich, War and Private Property, p. 37.

104 Scott, Texts, p. 227.

be out of proportion to the offense. The rule is well stated by Hall, who declares that reprisals can be resorted to only under the pressure of absolute necessity, and then not by way of revenge, but only in cases and to the extent by which an enemy may be deterred from a repetition of the offense.105 The rule adopted by the Institute of International Law adds that reprisals must in all cases be consistent with the rules of humanity and morality.106 In the present case a fine would have been unobjectionable, but shall we say that a belligerent has a right, in the face of the now generally accepted laws of civilized warfare, to bombard a city for the acts of a few individuals, burn hundreds of private houses, destroy an ancient university with its library, works of art and scientific collections, ruin a noble cathedral and convert a thriving city into a place of waste and desolation? We think the only possible answer is, "no." The Hague convention declares that the right of belligerents to adopt means of injuring the enemy is not unlimited; 107 that to destroy the enemy's property, unless such destruction is imperatively demanded by the necessities of war, is forbidden; 108 that in sieges and bombardments all necessary steps must be taken to spare, as far as possible, buildings dedicated to religion, art, science or charitable purposes, historical monuments, hospitals and places where the sick and wounded are collected, provided they are not being used at the time for military purposes. 109 The Germans themselves have not claimed that the university, the library, the cathedral and other public buildings destroyed by them at Louvain were being used for military purposes at the time, nor is there any evidence that any attempt was made by them to spare these buildings, and it cannot be seriously contended, we believe, that their destruction "was imperatively demanded by the necessities of war." Under the most charitable construction, the act was, therefore, not only contrary to the enlightened sentiment of the age, but

105 Sec. 135.

108 Arts. 84-86. See also Westlake, Pt. II, pp. 113, 115; Bordwell, p. 316; Merignhac, Lois et Coutumes, p. 212; Despagnet, secs. 543, 577; Holland, Laws of War, p. 61. Compare also, "The Instructions for the Government of the United States Armies," Art. 28, and the French manual for the use of officers, p. 25.

107 Article 22, Annex to the Convention Respecting the Laws and Customs of War. 108 Article 23.

109 Article 27.