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and how far; and, in consequence, no private person hath power to make devastation in an enemy's country, or to carry off spoil or plunder, without permission from his sovereign; ... for to be a soldier, and to act offensively in a hostile manner, a man must be commissioned by public authority." And see Cases and Opin. in Const. Law, by Forsyth, p. 479. War is waged between governments by persons whom they authorize, and is not waged against the passive inhabitants of a country. Woolsey's International Law, § 125, p. 214.

Portalis, in his speech at the installation of the council of prizes, (see Hefter, § 119,) said: "The right of war is founded on this, that a people, in the interests of self-conservation, or for the sake of self-defense, will, can, or ought to use force against another people. It is the relation of things, and not of persons, which constitutes war; it is the relation of State to State, and not of individual to individual. Between two or more belligerent nations, the private persons of which these nations consist are enemies only by accident; they are not such as men, they are not even as citizens, they are such solely as soldiers."

To the same effect are Talleyrand's words in a dispatch to Napoleon, of November 20, 1806, (see Woolsey's Intern. Law, § 130, note, p. 225.) "Three centuries of civilization have given to Europe a law of nations, for which, according to the expression of an illustrious writer, human nature can not be sufficiently grateful. This law is founded on the principle, that nations ought to do to one another in peace, the most good, and in war, the least evil possible.

According to the maxim that war is not a relation between a man and another, but between State and State, in which private persons are only accidental enemies, not such as men, nor even as members or subjects of the State, but simply as its defenders, the law of nations does not allow that the rights of war, and of conquest thence derived, should be applied to peaceable unarmed citizens, to private dwellings and properties, to the merchandise of commerce, to the magazines which contain it, to the vehicles which transport it, to unarmed ships which convey it on streams and seas; in a word, to the person and the goods of private individuals.

"This law of war, born of civilization, has favored its progress. It is to this that Europe must ascribe the maintenance and increase of her pros perity, even in the midst of the frequent wars which have divided her."

The same.

735. Subject to article 737, no persons other than those impressed with a military character may lawfully wage hostilities, except in self-defense.

Halleck, Int. Law and Laws of War, p. 386; Vattel, Droit des Gens b. 3, ch, 15, § 224; and Id., ch. 5, § 70; 1 Gallison's U. S. Circ. Ct. Rep. 563; Lawrence's Wheaton, Elements of Intern. Law, pp. 626, 627, pt. iv., ch. ii., $$ 8,9; Dana's Wheaton, §§ 356, 357.

Halleck, (above,) says that the hostile acts of bands of men, self-organized and self-controlled, are not belligerent acts, but crimes. There must be, as stated in Article 734, the authority of a power capable of making war, to justify any person in committing offensive hostilities.

Persons impressed with military character.

736. The following persons and no others are deemed to be impressed with the military character:

1. Those who constitute a part of the military' forces of the nation; and,

2. Those who are connected with the operations thereof, by the express authority of the nation."

Military" is defined by Article 717.

Lawrence's Wheaton, Elem. of Intern. Law, p. 627, pt. iv., ch. ii., § 8; Dana's Wheaton, § 356; Bluntschli, Droit Intern. Codifié, § 569.

Wheaton, as above. This will include subsidiary forces; camp fol. lowers, &c. In modern warfare partisan and guerrilla bands are regarded as outlaws, and may be punished by a belligerent as robbers and murderers. Halleck, Int. Law and Laws of War, 386, 387; Heffter, Droit International, § 126; 3 Phillimore's Intern. Law, § 96; Lieber's Instructions for the Government of Armies of the United States, section iv. But if employed by the nation, they become part of its forces. Halleck, p. 386, § 8.

Fioré, on this point says that the army, which may consist of regulars, volunteers, mercenaries, troops of allies, &c., must be organized, disciplined and subjected to the command of the public authority. Fioré, Nouveau Droit International, v. 2, p. 277.

As to the status of franc-tireurs during the Franco-German war, 1870, Count Bismarck declared to the French government that "only men who can be recognized within gunshot, as soldiers, shall be considered and treated as such," and "that all those who, not being on all occasions and at a proper distance recognizable as soldiers, may kill or wound any Prussians, shall be tried by court-martial." Foreign Relations of the

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Temporary want of authority.

737. Inhabitants of a country invaded, who sponta neously unite in arming to oppose invasion,' or who, under military organization,' and for political reasons, without motives of private gain, take part in hostilities existing between belligerents,' are not to be treated as criminals, unless after being required by the enemy to lay down their arms or to join the regular military forces within a reasonable time, they fail to do so.

1 Halleck, (Int. Law and Laws of War, p. 388,) says the proper distinction in relation to inhabitants rising en masse, was made by Welling ton, in his invasion of the South of France, (1814.) He required the peasants engaged in partisan warfare to take arms openly and join Soult, or stay peaceably at home.

'Persons waging offensive hostilities on land, without express authority of a belligerent, should be treated as criminals if they act without military organization, whatever the circumstances or motives.

3 Bluntschli, (Droit International Codifié, § 570, and note,) inclines to the opinion that an unauthorized corps, which, believing they have a just cause, adopt a military organization, and fight for a political end, are to be treated as lawful enemies, not criminals: and he instances the corps of Garibaldi, in the Italian wars of 1859 and 1866, and in the expeditions of 1860 and 1867. The above Article would allow this, subject to the right of the enemy to require them to join the forces. Lieber, (Instructions, ¶ 85,) lays down a stricter rule. He says, that "war-rebels are persons within an occupied territory who rise in arms against the occupying or conquering army, or against the authorities established by the same. If captured, they may suffer death, whether they rise singly, in small or large bands, and whether called upon to do so by their own, but expelled, government or not. They are not prisoners of war; nor are they, if discovered and secured before their conspiracy has matured to an actual rising, or to armed violence.

Compulsory service.

738. Except as provided in article 358,' a nation can not exact military service from any persons but its own members.

1 The reference is to the Article in the BOOK on PEACE, which regu lates the obligation of military service on the part of foreigners.

The inhabitants of a conquered territory are not deemed members of the victorious nation, within the meaning of this Article, except when the latter, after complete conquest, has proclaimed its intention and manifested its power to hold and annex such territory. Lieber's Instructions, ¶¶ 23, 93; Bluntschli, Droit International Codifié, § 576.

See Part IX., concerning THE TERMINATION Of War.

Savage allies.

739. The employment, against a civilized enemy, of savage allies, who are not subjected to the rules of war, contained in this Code, and to the military law of the employing power, is unlawful.

This seems to be the principle recognized on this subject.

Dana, (Wheaton, Elem. of Intern. Law, § 343, note 166,) says, that the

employment, though open and acknowledged, of savage allies who do not recognize the laws of war and of nations, against a civilized enemy, is discountenanced by the best jurists and statesmen of modern times.

But it is not a valid objection that individual soldiers are of a barbarous or pagan religion, when they are under the responsible command of officers of a civilized nation, and subjected to the articles of war.

Woolsey, (International Law, § 127, p. 217,) says, that “troops who are accustomed to an inhuman mode of warfare, and belong to a savage race, can not be trusted to wage war according to the spirit of humanity, and ought not to be employed."

Defensive hostilities.

740. Subject to article 868, defensive hostilities, on sea or land, though without public authority, are lawful.

Halleck, Intern. Law and Laws of War, p. 391, and authorities there cited; Lawrence's Wheaton, Elem. of Intern. Law, pt. iv., ch. ii., § 8, p. 627; Dana's Wheaton, § 356.

Privateering abolished.

741. Privateering is and remains abolished; and offensive hostilities at sea can only be waged by the public armed ships of a belligerent.

'Conference of Paris, 1856. Nearly all the nations of Europe have acceded to this rule; see preliminary note to Chapter LXIV., concerning HOSTILITIES AGAINST PROPERTY. The United States have always been willing to adopt it, if coupled with the exemption of private property not contraband.

By the convention between the United States and

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The Dominican Republic, Feb. 8, 1867, Art. XXV., 15 U. S. Stat. at L. 180.
Venezuela,
Aug. 27, 1860, XXV., 12 Id., 1143.
May 13, 1858,

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XXV., 12 ld., 1003,

Bolivia, it is provided, that, no member of either nation shall apply for or take any commission or letters of marque, for arming any ship or ships to act as privateers, against the other nation, or against its citizens, people, or inhabitants, or any of them, or against the property of any of its inhabitants, from any prince or State with which such other nation shall be at war; and if any member of either nation shall take such commission or letters of marque, he shall be punished according to their respective laws.

And in the treaty between the United States and Guatemala, March 3. 1849, Art. XXV., 10 U. S. Stat. at L., (Tr.,) 1, it is provided that such persons may be treated as pirates.

Similar provisions are to be found in many other modern treaties.

Punishment of privateering.

742. A private ship, waging offensive hostilities whether with or without a commission from a nation, is a piratical ship; and all persons committing such hostilities are punishable as pirates.

Depredations on the high seas, without authority from any sovereign State, are acts of piracy. Lawrence's Wheaton, Elements of Intern. Law, p. 246, pt. II., ch. II., § 15; Dana's Wheaton, § 122.

If privateering be not abolished it ought to be declared that," Any ship which takes a commission from any other power than the nation whose character it bears, as defined by Chapter XX., on NATIONAL CHARACTER OF SHIPPING, is a piratical ship, and all persons committing hostilities under such commission, are punishable as pirates by any nation. See Halleck, Intern. Law & Laws of War, p. 396; and the treaty of 1786, between France and Great Britain.

It is plain, that taking a commission from each of two belligerents is piracy. 1 Phillimore's Intern. Law, § 358. See also Lawrence's Wheaton, pp. 250-254, note 80. Forsyth's Cases and Opinions in Constitutional Law, p. 116.

Taking a commission from both of two allied nations against a com mon enemy is equally condemned by Kent, (Commentaries, vol 1, p. 100; citing as authorities for this rule, Valin's Com., tome 2, 235-236; Bynkershock, c. 17; Sir L. Jenkins' Works, 714;) although Halleck, (p. 396,) makes a distinction here, and holds that this is not piracy.

The taking of a commission from one belligerent by a neutral ship ought equally to be forbidden, according to Vattel, Droit des Gens, bk. 3, ch. 15, § 229.

An act of Congress of the United States, prohibits citizens to accept within the jurisdiction of the United States a commission, or any person not transiently within the United States to consent to be retained or enlisted, to serve a foreign State in war against a government in amity with the United States. It likewise prohibits citizens from being concerned without the limits of the United States, in fitting out or otherwise assisting any private vessel of war, to cruise against the subjects of friendly powers. Act of Congress, April 20, 1818, ch. 83, p. 100. And see Kent's Commentaries, p. 100. Similar prohibitions are contained in the laws of other countries. See the "Austrian Ordinance of Neutrality," Aug. 7, 1803, Arts. 2,3 The foreign enlistment acts of Great Britain and the United States, which are permanent statutes, impose severe penalties on citizens or residents, who receive commissions, equip privateers, or enlist men for service in any foreign war. 9 U. S. Stat at L., p. 175.

The above rule would include all three classes of cases.

Pirates and brigands.

743. Pirates and brigands are criminals not entitled

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