"Unjust or inconsiderate retaliation removes the belligerents farther and farther from the mitigating rules of regular war, and by rapid steps leads them nearer to the internecine wars of savages." Instructions for the Government of Armies of the United States in the Field, General Orders, No. 100, April 24, 1863, War of the Rebellion, By an order of the President, dated April 21, 1902, a court-martial was convened in the Philippines to try Brigadier-General Jacob II. Smith, U. S. A., on charges based on certain oral orders which he gave in the autumn of 1901 to Major L. W. T. Waller, of the Marine Corps, then serving with a battalion of marines, under his orders as commander of the Sixth Separate Brigade in Samar. The forces under General Smith were then engaged in a punitory movement, rendered necessary by the treacherous massacre of an American force at Balangiga, in Samar, in September, 1901. It was shown that General Smith gave Major Waller the following oral instructions: "I want to prisoners. I wish you to kill and burn; the more you kill and burn the better you will please me." He also declared that "the interior of Samar must be made a howling wilderness," and that he wanted all persons killed who were capable of bearing arms and in actual hostilities against the United States; and, in reply to an inquiry by Major Waller for an age limit, designated the age of ten years. The court-martial found General Smith guilty of conduct to the prejudice of good order and military discipline, and sentenced him to be admonished by the reviewing authority, but appended to the sentence the following explanation: "The court is thus lenient in view of the undisputed evidence that the accused did not mean everything that his unexplained language implied; that his subordinates did not gather such a meaning; and that the orders were never executed in such sense, notwithstanding that a desperate struggle was being conducted with a cruel and savage foe." It appeared that General Smith was wont at times to use extravagant expressions, and that this was a matter of common knowledge, His oral instructions to Major Waller acquired notoriety in connection with the subsequent trial of that officer on the charge of having caused certain natives to be put to death without proper trial. Major Waller, however, as it appears, did not defend this act on the ground of any orders received from General Smith, but on the ground that, as commanding officer, he was justified by the laws of war, because of the treachery of the natives in question, who had acted as bearers or guides of one of his expeditions. President Roosevelt, in reviewing the sentence of the court-martial, bides giving the recommended admonition, directed that General Smith, who had reached the age of 62 years and was therefore subject under the law to be so dealt with, be retired from the active list. The President's order was as follows: "The findings and sentence of the court are approved. I am well aware of the danger and great difficulty of the task our Army has had in the Philippine Islands, and of the well-nigh intolerable provocations it has received from the cruelty, treachery, and total disregard of the rules and customs of civilized warfare on the part of its foes. I also heartily approve the employment of the sternest measures necessary to put a stop to such atrocities, and to bring this war to a close. It would be culpable to show weakness in dealing with such foes or to fail to use all legitimate and honorable methods to overcome them. But the very fact that warfare is of such character as to afford infinite provocation for the commission of acts of cruelty by junior officers and the enlisted men, must make the officers in high and responsible positions peculiarly careful in their bearing and conduct so as to keep a moral check over any acts of an improper character by their subordinates. "Almost universally the higher officers have so borne themselves as to supply this necessary check; and with but few exceptions the officers and soldiers of the army have shown wonderful kindness and forbearance in dealing with their foes. But there have been exceptions; there have been instances of the use of torture and of improper heartlessness in warfare on the part of individuals or small detach ments. "In the recent campaign ordered by General Smith, the shooting of the native bearers by the orders of Major Waller was an act which sullied the American name, and can be but partly excused because of Major Waller's mental condition at the time, this mental condition being due to the fearful hardship and suffering which he had undergone in his campaign. It is impossible to tell exactly how much influence language like that used by General Smith may have had in preparing the minds of those under him for the commission of the deeds which we regret. Loose and violent talk by an officer of high rank is always likely to excite to wrongdoing those among his subordinates whose wills are weak or whose passions are strong. "General Smith has behind him a long career distinguished for gallantry and on the whole for good conduct. Taken in the full, his work has been such as to reflect credit upon the American Army, and therefore upon the nation; and it is deeply to be regretted that he should have so acted in this instance as to interfere with his further usefulness in the Army. I hereby direct that he be retired from the active list." The foregoing order was accompanied with a report by Mr. Root, Secretary of War. In this report Mr. Root found as a fact that General Smith's oral instructions "were not taken literally and were not followed," and that "no women or children or helpless persons or noncombatants or prisoners were put to death in pursuance of them." He said: "An examination of the evidence has satisfied me that the conviction was just, and that the reasons stated for the very light sentence imposed are sustained by the facts. General Smith, in his conversation with Major Waller, was guilty of intemperate, inconsiderate, and violent expressions, which, if accepted literally, would grossly violate the humane rules governing American armies in the field, and if followed would have brought lasting disgrace upon the military service of the United States. Fortunately, they were not taken literally and were not followed. No women or children or helpless persons or noncombatants or prisoners were put to death in pursuance of them. "An examination of the records and proceedings upon the trial of Major Waller, which immediately preceded that of General Smith, shows that the instructions in question bore no relation to the acts for which Major Waller was tried, and were not alleged by him as Justification for those acts. Major Waller was tried for causing certain natives, who had acted as bearers or guides of one of his expeditions, to be put to death for treachery without proper trials; and he defended his action, not upon the ground of any orders received from General Smith, but upon the ground that as commanding officer he was justified by the laws of war. "General Smith's written and printed orders, and the actual conduct of military operations in Samar, were justified by the history and conditions of the warfare with the cruel and treacherous savages who inhabited the island, and their entire disregard of the laws of war, were wholly within the limitations of General Orders, No. 100, of 1863, and were sustained by precedents of the highest authority. Thus, in 1779, Washington ordered General Sullivan in the campaign against the Six Nations to seek the total destruction and devastation of their settlements. He wrote, But you will not by any means listen to overtures of peace before the total ruin of their settlement is effected. . . . Our future security will be in their inability to injure us, the distance to which they are driven, and in the terror with which the severity of the chastisement they receive will inspire them." The Fort Phil Kearny massacre in 1866, for the base treachery, revolting cruelty, and the conditions of serious danger which followed it did not approach the massacre at Balangiga in Samar in September, 1901. There the natives had been treated with kindness and confidence, liberty and self-government had been given to them. Captain Connell, the American commander, was of the same faith and had been worshipping in the same church with them. With all the assurance of friendship our men were seated at their meal unarmed among an apparently peaceful and friendly community, when they were set upon from behind and butchered and their bodies when found by their comrades the next day had been mutilated and treated with indescribable indignities. Yet there was no such severity by American soldiers in Samar as General Sherman proposed toward the Sioux after Fort Phil Kearny. "It is due, however, to the good sense and self-restraint of General Smith's subordinates, and their regard for the laws of war, rather than to his own self-control and judgment, that his intemperate and unjustifiable verbal instructions were not followed, and that he is relieved from the indelible stain which would have resulted from a literal compliance with them. "It is the duty of a general officer whose age and experience have brought him to high command not to incite his subordinates to acts of lawless violence, but to so explain to them the application of the laws of war and the limitations upon their conduct as to prevent transgressions upon their part and supplement their comparative inexperience by his wise control. In this General Smith has signally failed, and for this he has been justly convicted. Although the sentence imposed is exceedingly light, it carries with it a condemnation which, for an officer of his rank and age, is really severe punishment. "For this reason and for the further reason that General Smith has served his country long and faithfully, has exhibited high courage and good conduct in many battles, has been seriously wounded in the civil war and in the war with Spain, and is about concluding a long and honorable career as a faithful and loyal servant of his country, I recommend that the mild sentence imposed be confirmed. "Should you approve the findings and sentence of the court in accordance with this recommendation, I feel bound to say, further, that in view of the findings and sentence and of the evident infirmities which have made it possible that the facts found should exist, it is not longer for the interest of the service that General Smith should continue to exercise the command of his rank. His usefulness as an example, guide, and controlling influence for the junior officers of the Army is at an end; and as he is already upward of sixty-two years of age, I recommend that you exercise the discretion vested in you by law and now retire him from active service." S. Doc. 213, 57 Cong. 2 sess. 2, 3, 5. 66 5. DECEIT. § 1115. Deceit against an enemy is as a rule permitted; but it is clearly understood that this does not embrace the abuse of signs which are employed in special cases to prevent the exercise of force or to secure immunity from it. Thus information must not be surreptitiously obtained under the shelter of a flag of truce, and the bearer of a misused flag may be treated by the enemy as a spy; buildings not used as hospitals must not be marked with a hospital flag; and persons not covered by the provisions of the Geneva Convention must not he protected by its cross. A curious arbitrary rule affects one class of stratagems by forbidding certain permitted means of deception from the moment at which they cease to deceive. It is perfectly legitimate to use the distinctive emblems of an enemy in order to escape from him or to draw his forces into action; but it is held that soldiers clothed in the uniforms of their enemy must put on a conspicuous mark by which they can be recognized before attacking, and that a vessel using the enemy's flag must hoist its own flag before firing with shot or -hell." Hall, Int. Law, 5th ed. 537-539, citing Ortolan, Liv. III. chap. I.; Pistoye et Duverdy, I. 231-234; Bluntchli, § 565; The Peacock, 4 Rob. 187. 101. While deception in war is admitted as a just and necessary means of hostility, and is consistent with honorable warfare, the common law of war allows even capital punishment for clandestine or treacherous attempts to injure an enemy, because they are so dangerous, and it is so difficult to guard against them." Instructions for the Government of Armies of the United States in the “ARTICLE XXIV. Ruses of war and the employment of methods necessary to obtain information about the enemy and the country, are considered allowable." Convention respecting the Laws and Customs of War on Land, The 6. TREATMENT OF RESIDENT ALIEN ENEMIES. § 1116. See, as to expulsion, supra, § 559. Various measures have been adopted by governments in relation to alien enemies residing within their territory. Such persons may, says Rivier, be detained, especially those subject to military service; |