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discussion. In the kind of guerrilla warfare before spoken of, the individuals composing the bands acknowledge no authority but that of their own chiefs. They derived no authority from the State, and the State is no more responsible for their acts than for the unauthorised acts of any other subjects. But, in the case of a levy en masse, the inhabitants are organised and armed under the direction of the public authorities, and the State is directly responsible for their acts.1 In guerrilla warfare the individual alone is responsible for his

1 The population of a non-occupied territory, who, on the approach of the enemy, of their own accord take up arms to resist the invading troops, without having had time to organise themselves in conformity with Art. 9, shall be considered as belligerents, if they respect the laws and customs of war.-Brussels Conference, 1874, Art. io.

In 1870 the Prussians required each French franc-tireur to wear a uniform recognisable at gun-shot distance, and the distinctive marks of such uniform to be inseparable from his person. In this case he would be treated as an enemy of war.

A corps of francs-tireurs, 'Les partisans de Gers,' had papers showing that they were in the Government service; their officers held commissions, and their military character was admitted, though their only distinctive marks were a red sash, black coat, and Calabrian hat. But the original type of franc-tireur carried no papers, wore no recognisable uniform, nor were the chiefs of bands responsible to any superior officer.

The German Governors punished with death everyone who should take up rails or place obstacles on the lines of railway, or, when the offender could not be discovered, imposed a fine of 1,000 thalers on the

nearest commune.

A notice at St. Mihiel declared that francs-tireurs or other persons bearing arms, but not wearing uniforms so as to distinguish them from the civil population, were by the Prussian laws of war' punishable with death. Another notice at Vendresse declared that persons in plain clothes fighting without papers or authorisation from their Government would be tried by court martial, and sentenced to ten years' imprisonment, or, in aggravated cases, executed.

No case presented itself during the war of 1870 which had not been provided for in the American instructions (see p. 36 et seq.), except, perhaps, the offence of concealing, in an occupied district, arms or provisions for the enemy. This offence was punished by the United States during the civil war by sacking and burning any house in an occupied district, found to contain such stores. In France, the village in an occupied district, harbouring francs-tireurs or troops of that character, was set on fire.

The Prussian military code, if it really exists in a separate and complete form, is inaccessible to the public, but may be studied all the same in the American Instructions. Mark out of them the article which under certain conditions sanctions a levy en masse, and substantially the two codes are identical. Incendiarism was practised in America during the civil war as a punishment, so was it also by the Prussians, but both nations seem to have a strong suspicion that the punishment is a barbarous one. It is not mentioned in the American instructions, nor was it alluded to in the minatory proclamations put forth by the Prussians. Edwards, Germans in France.

acts, but where the mass of the people of a city or district bear arms under the direction of the Government, they have become a legitimate part of the army, and the whole State is chargeable with any breach of the laws of war which they may commit. Any non-combatant may become a combatant without incurring any other penalty than that of being made subject to the laws applicable to active belligerents. If captured, they are entitled to the treatment of ordinary prisoners of war. The law of nations has, not unfrequently, been violated in European wars by disregarding the distinction which we have here pointed out between the unauthorised acts of selfconstituted guerrilla bands, and the authorised acts of levies en masse, organised and armed under the authority of the State. The French generals, in the Peninsular War, often punished alike all Spanish peasants found in arms, whether or not under the authority and direction of their own Government. And, in the invasion of France, in 1814, the allies punished with death the armed French peasants, although they had been levied and forced to bear arms by the local authorities, under the proclamations of the emperor. The proper distinction was made by Wellington, in his invasion of the south of France, in 1814. The troops of Mina and Morillo committed the greatest excesses in plundering the French peasants. This conduct was severely rebuked by Wellington. 'A sullen obedience followed,' says Napier, 'for the moment, but the plundering system was soon resumed, and this, with the mischief already done, was sufficient to arouse the inhabitants of Bidarray, as well as those of the Val de Baigorri, into action. They commenced and continued a partisan warfare until the Duke of Wellington, incensed by their activity, issued a proclamation calling upon them to take arms openly and join Soult, or stay peaceably at home, declaring he would otherwise burn their villages and hang all the inhabitants . . . Thus it happened that, notwithstanding all the outcries made against the French for resorting to this system of repressing the warfare of peasants in Spain, it was considered by the English general both justifiable and necessary. However, the threat was sufficient for the occasion."

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10. A distinction is sometimes drawn between hostilities

Napier, Hist. Peninsular War, b. xxiii. ch. iii.; Alison, Hist. of Europe, ch. lxxiv. vol. iv. p. 329; Manning, Law of Nations, p. 153.

of private subjects on land and on the high seas, but it does not seem to rest upon a substantial foundation, or to be supported by satisfactory reasons. The case is fully presented in the following extracts from the commentaries of Chancellor Kent: Although a state of war,' he says, 'puts all the subjects of one nation in state of hostility with those of the other, yet, by the customary law of Europe, every individual is not allowed to fall upon the enemy. If subjects confine themselves to simple defence, they are to be considered as acting under the presumed order of the State, and are entitled to be treated by the adversary as lawful enemies; and the captures which they make, in such a case, are allowed to be lawful prize. But they cannot engage in offensive hostilities, without the express permission of the sovereign; and if they have not a regular commission, as evidence of that consent, they run the hazard of being treated by the enemy as lawless banditti, not entitled to the mitigated rules of modern warfare.' But, in speaking of the hostilities of private subjects on the high seas, he says: 'Vessels are now fitted out and equipped by private adventurers, at their own expense, to cruise against the commerce of the enemy. They are duly commissioned, and it is said not to be lawful to cruise without a regular commission. Sir Matthew Hale held it to be a depredation in a subject to attack the enemy's vessel, except in his own defence, without a commission. The subject has been repeatedly discussed in the Supreme Court of the United States, and the doctrine of the law of nations is considered to be, that private citizens cannot acquire a title to hostile property, unless seized under a commission, but they may still lawfully seize hostile property in their own defence. If they

All captures made by private vessels without commission, pass to the Crown as prizes of war, or droits of Admiralty. This is the general prize law of Great Britain, of France, and of the United States. The same, where vessels, commissioned against one power, seize the property of another with whom war has subsequently broken out. And the same, if the capture be made by a tender to a man-of-war, if it be without an authority or a commission, although it be manned by some of the manof-war's crew. (The 'Charlotte,' 5 Rob. Adm. R. 280.) But contrà as to a ship's boats and authorised tenders (the 'Carl,' 2 Sp. Adm. R. 261). Noncommissioned persons have no right to any part of the capture they may have made, but the English prize courts have often awarded a recompence, even the whole value of the prize, to the captors. Although in the United States there are in strictness no droits of Admiralty, a prize taken under the above circumstances is condemned to the Government, and if the

depredate upon the enemy, without a commission, they act upon their peril, and are liable to be punished by their own sovereign; but the enemy is not warranted to consider them as criminals, and as respects the enemy, they violate no rights by capture. Such hostilities, without a commission, are, however, contrary to usage, and exceedingly irregular and dangerous, and they would probably expose the party to the unchecked severity of the enemy; but they are not acts of piracy, unless committed in time of peace. Vattel, indeed, says, that private ships of war, without a regular commission, are not entitled to be treated like captives made in a formal war. The observation is rather loose, and the weight of authority undoubtedly is, that non-commissioned vessels of a belligerent nation may at all times capture hostile ships, without being deemed, by the law of nations, pirates. They are lawful combatants, but they have no interest in the prizes they may take, and the property will remain subject to condemnation in favour of the Government of the captor, as droits of the Admiralty. It is said, however, that in the United States, the property is not strictly and technically condemned upon that principle, but jure reipublicæ; and it is the settled law of the United States that all captures by noncommissioned captors are made for the Government.' It certainly is not easy to reconcile the language used in the different parts of these extracts. If private individuals, who engage in offensive hostilities on land, without a regular commission, are not entitled to the mitigated rules of modern warfare,' but are liable to be treated by the enemy as lawless banditti;' if such hostilities on the high seas are exceedingly irregular and dangerous,' and 'expose the party to the unchecked severity of the enemy,' it is difficult to understand why 'the enemy is not warranted to consider them as criminals,' and why such parties 'violate no rights of capture' 'as respects the enemy.' If private individuals, by offensive hostilities on the high seas without commission or authority, violate no rights as against the enemy, certainly that enemy cannot treat them with 'unchecked capture has been made in self-defence, the captor on sending the prize into port for adjudication has a claim for salvage.

Query whether in England by the Common Law the whole seizure should not go to the captors? See Murrough v. Comyns, 1 Wils. 213; Home . Lord Camden, H. Bl. 476, and 2 ib. 533

severity.' The distinction here drawn by Kent is not founded in reason, nor is it well supported by authority. It is true that Mr. Wheaton, and some other modern writers, express similar views, but we know of no English or American decision which sustains them; the cases to which they refer consider the lawfulness of such captures with respect to the Government of the captors, but not with respect to the right of the opposing belligerent to punish the act as against him. The doctrine is sustained in the dissenting opinion of Mr. Justice Story in the 'Nereide,' but it was neither involved in the case nor decided by the Court. The continental publicists generally do not admit the distinction attempted to be drawn by Kent. Hautefeuille says, 'It is admitted by all nations that, in maritime wars, every individual who commits acts of hostility, without having received a regular commission from his sovereign, however regularly he may make war, is regarded and treated as guilty of piracy.' In the British naval regulations, established by the King in Council, published 1826, it is declared (§ 4) that if any ship or vessel shall be taken, acting as a ship of war or privateer, without having a commission duly authorising her to do so, her crew shall be considered as pirates, and treated accordingly.' Nevertheless, a capture made by such vessel from an enemy is regarded as good prize, and condemned as a droit of Admiralty. All agree that defensive hostilities on the high seas, as well as on land, without a commission or public authority, are not criminal acts, but acts fully authorised by the laws of war.2

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§ II. Since about the beginning of the fifteenth century, a public licence or commission has been considered necessary in order to authorise private vessels to cruise against the enemy. In order to encourage privateering, it is usual to

By Art. 5 of the British Naval Regulations of 1787, the commissions of captured privateers were to be preserved. If such commissions were not found, the crew were to be committed as pirates. This is so at the present day; see Queen's Naval Regulations, 1861.

2 Kent, Com. on Am. Law, vol. i. pp. 94-96; Vattel, Droit des Gens, liv. iii. ch. xv. § 226; Martens, Essai sur les Armateurs, ch. i. §§ 5-7; Heffter, Droit International, § 124; Hautefeuille, Des Nations Neutres, tit. iii. ch. ii.; Massé, Droit Commercial, liv. ii. tit. i. ch. ii.; Wheaton, Elem. Int. Law, pt. iv. ch. ii. § 9; Robinson, Collectanea, p. 21; Sparks, Dip. Correspondence, vol. i. p. 443; Journals of Congress, vol. vii. p. 187; the Georgiana,' 1 Dod. Rep., p. 397; the Dos Hermanos,' 10 Wheaton Rep., p. 306; the Nereide,' 9 Cranch. Rep. p. 449; the 'Amiable Isabella,' 6 Wheaton Rep., p. i. ; Brown v. The U. S., 8 Cranch. Rep., p. 132.

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