Of mellow age no bright'ning, of youthful YES, it is good for us that we are here;

Scarlet, and blue, and purple in the sky, The covering of the holy sanctuary, No ecstasy of passion, nor mystery of pain; By day obscured, at last by night shines No furrow plough'd — eraseless - by the

And all that purple and scarlet turn to grey. Can warmth of summer noontides, or It may be, yet for us they keep their hue,

sound of wind-blown trees,

Or subtil scent of violets borne on the

From The Fortnightly Review. INTERNATIONAL LAW IN THE WAR BETWEEN JAPAN AND CHINA.

THE great war in the extreme East has lasted not quite ten months. It has destroyed the reputation of one empire, and made that of another. In endless ways it has been full of instruction, but I propose to deal with it only in so far as it has illustrated the rules of international law. To the stu

Ident of this science an outbreak of hostilities is always interesting. He knows that in war time the questions with which he is concerned come thicker and faster than in time of

bat; a question upon which some very random observations have appeared in the public press.2 Are China and Japan, with reference either to one another or to other powers, subject to the duties which are recognized as subsisting between the States of Europe? We come here upon a large question,

no less than the essential character of

international law, and the sphere of its operation. According to the older theory, no doubt, the law of nations was the law of Christendom; as little applicable to infidels as was the "

com

mon law" of the Greek cities (Tà Koà τῶν Ἑλλήνων νόμιμα) to societies of barpeace, and that he can turn for their barians. The Reformation, by breaksolution, either directly or by analogy, ing up the religious unity of Europe not merely to the often ill-defined prac-obliged the jurists of those days to look tice of nations, or the frequently un- less and less to religion as the test of certain results of diplomatic discussions, subjection to what was later described but, in many cases, to clear and au- as the "public law of Europe," and thoritative decisions of courts of prize. of membership of the "family of naThe law of war, as is well known, tions." It came to be understood that consists of two great chapters, dealing the members of this "family" are the respectively with the relations of one States of western Europe and their belligerent to the other, and with the derivatives in North and South Amerrelations of each belligerent to neuica, as sharers not so much in a comtrals. mon religion as in a common civilization and stock of moral ideas. That any other States possess these qualifications is not to be presumed, but needs to be established from the special circumstances of each case. The accession of the Oriental races to the law or "concert" of Europe may be taken to have begun by the formal admission into it of the Ottoman Empire by the Treaty of Paris of 1856. Since that date, the maintenance of permanent diplomatic intercourse between the European courts and several powers of the remoter East, together with the increasingly large number of treaties made with such powers, and well observed by them, have accustomed us to regard these new-comers as belonging to the charmed circle; though, perhaps, as admitted to it only on probation. Such might seem to be the position of

The former topic has been under discussion for at least six centuries; for, not to mention classical antiquity, the literature of it may be traced from the canonists and casuists, through the dreamers of a law of nature, down to the positive systems of the present day. The latter topic is comparatively modern, dating, as a clearly defined subject of separate inquiry, only from the eighteenth century; though it has already come far to surpass in complexity and importance the law of belligerency.

I propose to call attention to some points in which each of these departments of international law has been illustrated by the war which has just been brought to a close. But, first of all, a word or two upon the applicability of international law to the nations which have been engaged in this com

1 It ended on 8th May, when the ratifications of the treaty signed at Shimonoseki on 17th April, were exchanged at Chefoo. During the armistice, the war, of course, continued to subsist: "Non pax est induciæ; bellum enim manet, pugna cessat."

2 E.g., in the Saturday Review, 11th August, 1894: "There was no legal war. . . . The code of international law does not apply to barbarians, who have nothing of civilization beyond a chatter of words and a supply of deadly weapons." Cf. even the Law Journal, 1894, pp. 478, 513, 536.

Japan; but such could hardly be said | several purposes convenient, is not an to be the position of China; for China essential preliminary to legitimate waris far behind Japan in readiness to fare, and that, even when issued, it assimilate the ethical ideas of the may be followed by acts of hostility West, or to enter into the network of without an interval. For proof that treaties which so much facilitates the practice has been in accordance with social life of the world. In particular, theory, it will be enough to refer to the she has neglected to accede to the historical sketch of the subject which Geneva Convention for the treatment was prepared for the War Office by of the wounded, to which Japan long Colonel Maurice, when the possibility ago became a party; nor have her of this country being invaded without courts and codes any pretension so to notice by means of a Channel tunnel satisfy European requirements as to was under discussion. justify the Western powers in resigning, as they are about to do in the case of Japan, the extra-territorial privileges enjoyed in the empire by foreigners. Antecedently to the war, therefore, we should have said that Japan was admitted on probation, while China was only a candidate for admission, to the "family of nations." Let us now see what further light has been thrown upon the respective qualifications of the two empires by subsequent events; and first with reference to the law of belligerency, where we have to consider I. The declaration of war. II. The conduct of warfare. III. The commercia belli, i.e., such quasifriendly transactions as occur between enemies.

I. War was formally declared by Japan on 1st August, 1894, and the challenge was accepted in a counterdeclaration issued by China on the following day. But hostilities were already in progress. On 25th July, a Japanese squadron had been engaged with Chinese men-of-war which had been convoying transports carrying reinforcements for Asan, in Korea; and Japanese troops had captured Asan itself on the 29th. A state of war existed therefore between the two countries as early as 25th July; and there is nothing irregular in a war thus commenced. It has long been a settled doctrine of international law that a declaration, though laudable and for

1 E.g., the "universal conventions " as to weights and measures, posts, and telegraphs.

2 Great Britain, by treaty with Japan of 16th July, 1894, provides for the cessation of such privileges after five years from that date. The United States and Italy have already followed suit.

II. With reference to the conduct of warfare, China has not accepted the customs, nor has she bound herself by the express conventious, which prevail among civilized nations. The signal made by Admiral Ting, before the battle off the Yalu, "If the enemy shows the white flag, or hoists the Chinese ensign, give no quarter, but continue firing at her till she is sunk," need, therefore, occasion no surprise. Sung, the imperial commissioner, is stated in northern to have posted notices Manchuria, offering ten thousand taels for the decapitation of three Japanese generals; and it seems to be established that the Chinese commanders habitually offered and paid rewards for the heads and hands of prisoners, who might indeed be accounted fortunate if they escaped a fate far worse than instantly inflicted death. It was the torture and mutilation of those Japanese who happened to be made prisoners during the operations against Port Arthur which stung their fellow-countrymen into madness, and explains, though nothing can excuse, the massacres which were carried on by them for four days after the place was taken.

4. The bombardment of Tung-chow by a Japanese squadron, as a feint, in January last, was complained of by the

With the lamentable exception just | Some of these people, however, accommentioned, the conduct of the opera-panied the troops in the guise of tions of war by the Japanese seems to coolies, and have been guilty of a cerhave been in accordance with the best tain amount of wanton cruelty.3 European practice, and with the proclamation addressed to the army on 22nd April, 1894, by Count Oyama, the minister for war. This remarkable missionaries, on the ground that it is document lays down that "belligerent an open town. But there seems to be operations being properly confined to no doubt that it is defended by forts, the military and naval forces actually which replied to the enemy's fire.1 engaged, and there being no reason 5. The treatment of peaceful inhabwhatever for enmity between individ-itants and foreigners in places occupied uals, because their countries are at by the Japanese seems to have been war, the common principles of human- praiseworthy. Thus, when Kinchow ity dictate that succor and rescue was taken, an officer was stationed in should be extended even to those of every store to protect the proprietor the enemy's forces who are disabled from soldiers and coolies, and the either by wounds or disease." It goes Japanese governor of the town fed on to state that Japan became a party hundreds of Chinese daily.5 A special to the Geneva Convention ("more guard was posted over a British miscommonly called the Red Cross Asso- sionary found in one of the houses durciation") in June, 1886, and that "her ing the street-fighting at old Nieu soldiers had already been instructed Chang; and after the taking of Ying that they are bound to treat with kind- Kow, on 6th March, 1895, protection ness and helpfulness such of their was assured to all law-abiding citizens, enemies as may be disabled by wounds and six hundred soldiers were detailed or disease." China, not having joined to safeguard the foreign residents. the Convention, may behave badly, "but nevertheless her disabled must be succored, and her captured kindly and considerately treated." 1

6

6. Quarter seems, as a rule, to have been freely granted to non-resisting combatants. It is not established that the Naniwa continued to fire, as was alleged, upon the sinking Kowshing, and upon the troops and sailors who had taken to the boats or had leapt into the water to avoid sharing her fate. At Port Arthur, for once, there is no doubt that the behavior of the Japanese was detestable. Much may be pardoned of what occurred when the stronghold was first entered by its assailants. If a certain number of non-uniformed coolies, or of soldiers who had thrown off their uniforms, received short shrift, when found with rifles in their hands, what was done was not without the sanction of recent European precedent. But unfortunately the Japanese, officers and men alike, were carried far beyond what

See an article in the North American Review for March, 1895, by P. Villiers, special correspondent of the Standard.

Times, 19th March, 1895.

5 New York Herald, December, 1804.
• Times, 6th March, 1895.

The Japanese had no opportunity of conforming to the prescriptions of the Geneva Convention which relate to the surgeons and field hospitals of the enemy, since no such functionaries or institutions seem to be known to the Chinese army.

could be excused even by their finding | Osaka, and Tokio, where such of the the mutilated remains of their tortured Chinese wounded as could be moved so friends exposed on the gateway of the far have received every kindness and town. For four days, after the first, the best medical attendance.1 the massacre of non-combatants, of women, of children, was continued in cold blood, while European military attachés and special correspondents sickened at the wholesale murders and mutilations which they could do nothing to prevent. It is said that at last but thirty-six Chinamen were left alive in the city. They had been spared only to be employed in burying their dead fellow-countrymen, and each was protected by a slip of paper fastened in his cap, with the inscription: "This man is not to be killed." 2

In pleasing contrast to all this, is what occurred upon the capture of the sister naval arsenal to Port Arthur, Wei-hai-wei. The Chinese troops found in the fortress were dismissed in safety, as were the foreigners who had been assisting in the defence of the place, with the exception only of an American who had been arrested under suspicious circumstances at Kobe, but released on giving his parole to return forthwith to the United States. So, after the capture of Makong in the Pescadores, the Chinese officers were sent to Japan as prisoners of war, but the rank and file were despatched in junks to the mainland, there to be set at liberty.

7. In 1886, Japan gave in her adhesion to the Geneva Convention for the treatment of the wounded, and in the same year a society which had been founded in 1877, on the occasion of the Satsuma rebellion, for the better relief of the sick and wounded, enemies as well as friends, was reorganized under the patronage of the mikado, and formally enrolled in the list of Red Cross Societies, whose headquarters is at Geneva. Many ladies of high rank have qualified in it as nurses, it has thousands of subscribers, and it possesses fine hospitals at Hiroshima,

1 Times, special correspondent, 8th January,

1895.

2 North American Reriew, March, 1895, p. 325. Treaties, vol. ii,. p. 393.

III. The most rudimentary, and therefore the longest and most generally accepted, principles of international law, are those which teach the sanctity of ambassadors, the respect due to a flag of truce, and the good faith which is required in the performance of such agreements as may be entered into between enemies. "Etiam hosti fides servanda."

Little fault is to be found with either belligerent with reference to these principles, except that the Chinese are said to have fired on a flag of truce sent to inform them of the conclusion of the armistice. When, at the outbreak of the war, the departing Japanese minister was insulted by offensive cries and pelted with mud, by a disorderly mob of soldiers, while embarking with his suite at Taku, the Chinese authorities lost no time in expressing their regret, and in punishing the offenders.

The Japanese government, though it refused, and very properly, to treat with Mr. Detring, and subsequently with two Chinese envoys, as being imperfectly accredited, received the plenipotentiary, Li Hung Chang, with every mark of friendly deference, and at once opened negotiations with him, at the little town of Shimonoseki, which had been selected for the purpose on account of its peaceful character. Greater precautions should, as the event proved, have been taken for his safety, but when, on the 25th March, an attempt was made on the life of Li Hung Chang, by a fanatic or lunatic who fired at him in the street, the would-be assassin was promptly

4 See a special article in the Times of 8th January, 1895.