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65. The use of the enemy's national standard, flag, or other emblem of nationality, for the purpose of deceiving the enemy in battle, is an act of perfidy by which they lose all claim to the protection of the laws of war."

Instructions for the Government of Armies of the United States in the
Field, General Orders, No. 100, April 24, 1863, id. 155.

Partisans-Armed

"81. Partisans are soldiers armed and wearing the uniform of their army, but belonging to a corps which acts detached from the main body for the purpose of making inroads into the territory occupied by the enemy. If Scouts-Armed captured they are entitled to all the privileges of the prowlers-War prisoner of war.

enemies not belonging to the

hostile army

rebels.

"82. Men, or squads of men, who commit hostilities, whether by fighting, or inroads for destruction or plunder, or by raids of any kind, without commission, without being part and portion of the organized hostile army, and without sharing continuously in the war, but who do so with intermitting returns to their homes and avocations, or with the occasional assumption of the semblance of peaceful pursuits, divesting themselves of the character or appearance of soldiers-such men, or squads of men, are not public enemies, and therefore, if captured, are not entitled to the privileges of prisoners of war, but shall be treated summarily as highway robbers or pirates.

"83. Scouts or single soldiers, if disguised in the dress of the country, or in the uniform of the army hostile to their own, employed. in obtaining information, if found within or lurking about the lines of the captor, are treated as spies, and suffer death.

"84. Armed prowlers, by whatever names they may be called, or persons of the enemy's territory, who steal within the lines of the hostile army for the purpose of robbing, killing, or of destroying bridges, roads, or canals, or of robbing or destroying the mail, or of cutting the telegraph wires, are not entitled to the privileges of the prisoner of war.

"85. 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."

Instructions for the Government of Armies of the United States in the
Field, General Orders, No. 100, April 24, 1863, id. 157.

“ARTICLE I. The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps, fulfilling the following conditions:

"1. To be commanded by a person responsible for his subordinates; "2. To have a fixed distinctive emblem recognizable at a distance; "3. To carry arms openly; and

"4. To conduct their operations in accordance with the laws and customs of war.

"In countries where militia or volunteer corps constitute the army, or form part of it, they are included under the denomination 'army.' “ARTICLE II. The population of a territory which has not been occupied who, on the enemy's approach, spontaneously take up arms to resist the invading troops without having time to organize themselves in accordance with Article I., shall be regarded a belligerent, if they respect the laws and customs of war.

"ARTICLE III. The armed forces of the belligerent parties may consist of combatants and non-combatants. In case of capture by the enemy both have a right to be treated as prisoners of war."

"SECTION I.-On Belligerents. Chapter 1.-On the Qualifications of Belligerents," Regulations respecting the Laws and Customs of War on Land, annex to the convention signed at The Hague, July 29, 1899, 32 Stat. II. 1811.

"It is necessary, in order to place the members of an army under the protection of the law of nations, that it should be commissioned by a state. If war were to be waged by private parties, operating according to the whims of individual leaders, every place that was seized would be sacked and outraged; and war would be the pretence to satiate private greed and spite. Hence, all civilized nations have agreed in the position that war to be a defence to an indictment for homicide or other wrong, must be conducted by a belligerent state, and that it can not avail voluntary combatants not acting under the commission of a belligerent. But free-booters, or detached bodies of volunteers, acting in subordination to a general system, if they wear a distinctive uniform, are to be regarded as soldiers of a belligerent army. Mr. Field, in his proposed code, thus speaks: 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.' This was accorded. to the partisans of Marion and Sumter in the American Revolution, they being treated as belligerents by Lord Rawdon and Lord Cornwallis, who were in successive command of the British forces in South Carolina; by Napoleon to the German independent volunteers in the later Napoleonic campaigns; and by the Austrians, at the time

of the uprising of Italy, to the forces of Garibaldi. (Lawrence's Wheaton's Elem. of Int. Law, 627, pt. iv, chap. ii, § 8; Dana's Wheaton, § 356; Bluntschli, Droit Int. Codifié, § 569, cited by Field, ut supra.) There must, however, be a military uniform, and this test was insisted on by the Government of the United States in its articles of war issued in 1863, and by the German Government in its occupation of France in 1871. The same privileges attach to subsidiary forces, camp followers, etc. But ununiformed predatory guerrilla bands are regarded as outlaws, and may be punished by a belligerent as robbers and murderers. (Halleck's Int. Law and Laws of War, 386, 387; Heffter, Droit Int., § 126; 3 Phillimore's Int. Law, § 96; Lieber's Instructions for the Government of Armies of the United States, § iv.) But if employed by the nation, they become part of its forces. (Halleck, 386, § 8; adopted by Field,

ut supra.)"

Wharton, Com. Am. Law, § 221.

In negotiating a treaty with Russia, Mr. Buchanan was instructed to propose the insertion of two articles to the effect (1) that, in case of war, hostilities should be carried on only by duly commissioned officers and by persons under orders, except in repelling attack or invasion or in defense of property; and (2) that each contracting party should by law provide for the punishment of such of its citizens or subjects, or others under the authority of its laws, as should violate the terms of the proposed convention, particularly the stipulations for the protection of fishermen, husbandmen, and noncombatants and their property, and for preventing breaches of truces and armistices, injuries to prisoners of war, breaches of capitulations, unauthorized hostilities, injuries to the bearers of flags of truce, the massacre of enemies who had surrendered, the mutilation of the dead, injuries to diplomatic agents, the violation of diplomatic correspondence, and all other breaches of provisions, either of the treaty or of the law of nations for preserving peace or lessening the evils of war. It was besides proposed that the contracting parties should agree to enter into further negotiations for mitigating the horrors of war and confining its operations as much as possible to the military forces of the parties. It was stated that the proposed articles were "both of them new in our diplomacy," as well as in that of other nations, but that it was believed that they would, if adopted, be useful to the cause of humanity and civilization.

Mr. Livingston, Sec. of State, to Mr. Buchanan, min. to Russia, No. 2,
March 31, 1832, MS. Inst. U. States Ministers, XIII. 281.

February 10, 1904, the Japanese Government, on the outbreak of war with Russia, published regulations which required war correspondents who wished to follow the Japanese army to make appli

cation to the Japanese war department. The applications of foreign correspondents were required to be sent through their respective ministers or consuls and the department of foreign affairs. The officers of the army were required to accord to correspondents, as far as circumstances permitted, suitable treatment and facilities, and when in the field and in case of necessity to give them food or, when so requested, transportation in vessels or vehicles. A war correspondent violating the criminal law, military criminal law, or the law for the preservation of military secrets was to be adjudged and punished by court-martial according to the military penal code.

For. Rel. 1904, 415; Monthly Consular Reports, May, 1904, LXXV. 393. Regulations were also issued governing naval war correspondents. (Id. 395.)

"By the law of war either party to it may receive and list among his troops such as quit the other, unless there has been a previous stipulation that they shall not be received. But when they [such refugees] have been received, a high moral faith and irrevocable honor, sanctioned by the usages of all nations, gives to them protection personally, and security for all that they have or may possess. They are exempt also from all reproach from the sovereignty to which their services have been rendered. Nothing that they claim as their own can be taken from them, upon the imputation that they had forfeited or meant to relinquish it by the abandonment of their allegiance to the sovereignty which they had left."

Wayne, J., United States v. Reading, 18 How. 10.

2. NONLIABILITY FOR BELLIGERENT ACTS.

§ 1110.

An officer of the Army of the United States, whilst serving in the enemy's country during the rebellion, was not liable to an action in the courts of that country for injuries resulting from his military orders or acts; nor could he be required by a civil tribunal to justify or explain them upon any allegation of the injured party that they were not justified by military necessity. He was subject to the laws of war, and amenable only to his own Government.

Dow . Johnson, 100 U. S. 158.

A person voluntarily residing within the Confederate lines cannot maintain an action against a Confederate soldier who, under military orders, burned the former's cotton to prevent it from falling into the hands of the Union forces, such destruction being a justifiable exercise of the rights of war.

Ford v. Surget (1878), 97 U. S. 594, 606 (1878).

During the civil war where a United States officer in command of troops, while in an insurgent State, seized property belonging to a citizen thereof and sold it to a third person and the latter was sued after the war by such former owner, Held, that the court had no jurisdiction over the subject-matter, as the seizure was an act of war, and the validity of such acts cannot be tried in a municipal court in a common-law proceeding.

Coolidge r. Guthrie, 1 Flip. C. C. 97.

VI. BELLIGERENT MEASURES.

1. PERMISSIBLE VIOLENCE.

§ 1111.

A belligerent has in a general sense the right to use all forms of violence against the person and property of his enemy that may be necessary to bring the latter to terms; so that violence, when used to that end, ceases to be permissible only when it is shown to be wanton, or grossly disproportioned to the end to be attained.

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

"14. Military necessity, as understood by modern civilized nations, consists in the necessity of those measures which are indispensable for securing the ends of the war, and which are lawful according to the modern law and usages of war.

"15. Military necessity admits of all direct destruction of life or limb of armed enemies, and of other persons whose destruction is incidentally unavoidable in the armed contests of the war; it allows of the capturing of every armed enemy, and every enemy of importance to the hostile government, or of peculiar danger to the captor; it allows of all destruction of property, and obstruction of the ways and channels of traffic, travel, or communication, and of all withholding of sustenance or means of life from the enemy; of the appropriation of whatever an enemy's country affords necessary for the subsistence and safety of the Army, and of such deception as does not involve the breaking of good faith either positively pledged, regarding agreements entered into during the war, or supposed by the modern law of war to exist. Men who take up arms against one another in public war do not cease on this account to be moral beings, responsible to one another and to God.

"16. Military necessity does not admit of cruelty-that is the infliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor of torture to extort confessions. It does not admit of the use of poison in any way, nor of

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