are not subject to the general rights of a belligerent over the enemy's person. To these are added, by modern usage, all persons who are not organised or called into military service, though capable of its duties, but who are left to pursue their usual pacific avocations. All these are regarded as non

combatants.

§ 3. Nevertheless, it often happens, in case of invasions and in the siege of fortified towns, that not only merchants, mechanics, and the common peasantry, but also the clergy, magistrates, old men, women, and even children, take up arms and render good service in the common defence. In doing this they lose the character of non-combatants, and become subject to the ordinary rules of war. Those who lay aside their peaceful avocations and engage, either directly or indirectly,' in hostile acts towards the enemy, whether by the orders of their Government, or their own free will, are liable to the consequences which lawfully result from such acts, but to none others.2

§ 4. As war cannot be carried on without soldiers,' says Vattel, it is evident that whoever has the right of making war, has also naturally that of raising troops.' This is true with respect to the State in its sovereign capacity, but not with respect to the particular departments into which the government of the State is divided. The Constitution must determine to what department these powers shall belong, and whether they shall be combined or separate. In most European countries they both belong to the sovereign, and are regarded as prerogatives of majesty. In England the sovereign declares war, but he cannot compel persons to enlist, nor can he, in fact, keep an army on foot without the concurrence of Par

1 The armed forces of the belligerents may be composed of combatants and non-combatants. In the event of being captured by the enemy, both one and the other shall enjoy the rights of prisoners of war.-Brussels Conference, 1874, Art. 11. Persons in the vicinity of armies, but who do not directly form part of them, such as correspondents, newspaper reporters, 'vivandiers,' contractors, &c., may also be made prisoners of war. These persons should, however, be furnished with a permit issued by a competent authority, as well as with a certificate of identity.-Ibid., Art. 34. See also post, p. 82.

1

Vattel, Droit des Gens, liv. iii. ch. ii. § 10; ch. viii. § 145; Burlamaqui, Droit de la Nat. et des Gens, tome v. pt. iv. ch. i.; Phillimore, On Int. Law, vol. iii. §§ 70, 94; De Felice, Droit de la Nat., &c., tome ii. lec. 20, 25; Riquelme, Derecho Pub. Int., lib. i. tit. i. cap. x.; Real, Science du Gouvernement, tome v. ch. ii. sec. vi. § 8; Bello Derecho Internacional, pt. ii. cap. iii. § 4.

liament. In the United States, Congress alone can declare war, or authorise the raising of troops. The general right of the State to raise troops is a part of the jus eminens, or superior right, which the entire body may, for the common good, exercise over the individual members of which it is composed.

§ 5. If every citizen, as among the Romans, took his turn in serving in the army, such service would naturally be gratuitous. But where only a portion are called into military service, while the others are left to pursue their ordinary avocations, it is right and proper that those who bear arms should be paid by those who do not, for no individual is bound to do more than his proportion for the service and defence of the State. The duty of the State to support its troops is evident, and its right to levy taxes for this purpose results from its general sovereign power over property within its territory, when necessity or the public good requires. It is a part of the jus eminens, which, when it regards property, is called by writers on public law dominium eminens. This right has, by some, been placed on the ground of an implied consent of individuals to part with a portion of their property for the public good, while others regard it as arising from the obligations of natural equity, the obligation to contribute to the support of the Government being similar to other obligations of secondary natural law, resulting as consequences from the institution of civil society.1

§6. The rights and duties of a State, with respect to the support of its soldiers, are not limited to the time of their actual service in bearing arms; the provisions made for their support in old age, or when disabled by toil, sickness, or wounds-such as pensions, asylums, hospitals, &c.—are, therefore, regarded as constituting a part of their military pay; and the extent of these provisions generally determines the character of the State, and of its citizens, for humanity, generosity, and good government. A country which does not properly support and pay those who bear arms in its service, will soon find itself without the means of defence, and a Government which leaves those who have wasted their strength, and shed their blood in its service, to beg their bread or perish with want, deserves, as it will always receive, the contempt of 1 Grotius, de Jur. Bel. ac. Pac., lib. i. cap. i. § 6.

every noble and generous heart. Moreover, if the State neglect to provide for its troops regularly and systematically, they will provide for themselves by pillage, robbery and massacres while in the field, and by a subversion of the civil government on the return of peace. It is only, with respect to their conduct in war, that the provisions made by State for the support of its troops become matters of serious international interest. The horrible atrocities committed by the unpaid troops of the middle ages form the most bloody pages in the annals of history.'

§ 7. Foreigners, who voluntarily serve a State for stipulated pay, are called mercenaries. The right of citizens of one State to be so employed by another, and of this other to so employ them, has often been discussed by publicists.2 That any citizen, with the consent of his own State, may serve another, cannot be denied. But, in doing this, he changes his nationality, and must thereafter look for support and protection to the State in whose service he is engaged. The right of a State to permit its citizens to be employed in the military service of another, is very questionable, but the right of this other to so employ them, (with such permission,) cannot be doubted. The policy of doing so, is a very different question. Mercenaries enlist voluntarily, for no State has a right to require such service of undomiciled foreigners. Domiciled foreigners may be required to do duty in the militia, or the civic and national guards, for the preservation of order and the enforcement of the laws, within a reasonable distance of their place of domicil. But such duty is rather of a civil than a military character. It

1 Hallam, Middle Ages, ch. ii.

2 By 33 and 34 Vict. c. 90 (Foreign Enlistment Act), if any person without the licence of Her Majesty, being a British subject, within or without Her Majesty's dominions, accepts any commission from a foreign State at war with any foreign State at peace with Her Majesty, or whether a British subject or not, within Her Majesty's dominions, induces any other person to accept any such commission, he is liable to fine and imprison

ment.

By the common law of England it is an indictable offence to enter the service of a foreign Government without leave of the sovereign. During the contest between Don Carlos and Isabella, the late Queen of Spain, the Foreign Enlistment Act was suspended to allow British subjects to join the auxiliary legion raised in England for the cause of that queen. Sir George Sartorius and Rear-Admiral Sir Charles Napier commanded the navy of Donna Maria during her contest for the throne of Portugal. On the other hand, during the late Crimean war, the British Government raised a German and an Italian legion.

does not include service against a foreign enemy, nor general military service in a civil war.1

§ 8. Partisan and guerrilla troops are bands of men, selforganised and self-controlled, who carry on war against the public enemy, without being under the direct authority of the State. They have no commissions or enlistments, nor are they enrolled as any part of the military force of the State; and the State is, therefore, only indirectly responsible for their acts. As a general rule, it will neither recognise their acts nor attempt to save them from the punishment due for their violations of the laws of war. At most, the Government only

1 Bynkershoek, Quaest. Jur. Pub., lib. i. cap. xxii.; Bello, Derecho Internacional, pt. ii. cap. i. §5; Ward, Law of Nations, vol. ii. p. 301; Heffter, Droit International, § 62.

In 1861, during the American civil war, the British Government declared that if enforced enlistments of British subjects for the war were persisted in, the Government would be obliged to concert with other neutral powers for the protection of their respective subjects; but neither in the Northern or Southern States was the discharge of any British subject, enlisted against his will, refused on proper representation. There is no international law prohibiting the Government of any country from requiring aliens to serve in the militia or police, yet at the above-mentioned date the British Government intimated that, if the United States permitted no alternative of providing substitutes, the position of British subjects to be embodied in that militia would call for every exertion being made in their favour on the part of Her Majesty's Government.' The British Government, in 1862, informed Mr. Stuart that as a general principle of international law neutral aliens ought not to be compelled to perform any military service (i.e. working in trenches), but that allowance might be made for the conduct of authorities in cities under martial law, and in daily peril of the enemy; and in 1864 the British Government saw no reason to interfere in the case of neutral foreigners directed to be enrolled as a local police for New Orleans.

By the United States Act, April 14, 1802, naturalised aliens are entitled to nearly the same rights, and are charged with the same duties, as the native inhabitants; and aliens not naturalised, if they have at any time assumed the right of voting at a State election, or held office, are, according to the opinion of Mr. Attorney-General Bates, liable to the Acts for enrolling the national forces. (See also Act, 3 March, 1863, and Act, 24 February, 1864; proclamation of President, May 8, 1863.) This was acted on during the American civil war, and tacitly acquiesced in by the British Government.

In England, civic and national guards are unknown, and now service in the militia and yeomanry is, in practice, voluntary; but when it was enforced, it seems never to have been authoritatively decided whether an alien can be obliged to serve therein or not. Aliens, even if naturalised, are exempt from serving the office of parish constable. (R. v. Ferdinard de Mierre, 5 Bur. 2790.) Nor can they be obliged to serve as special constables, but, if willing to act, they are capable of being appointed (5 and 6 Will. IV. c. 43).

It is interesting to note, as an example of this, that Louis Napoleon (afterwards Napoleon III.), did duty as a special constable in Fitzroy Square, London, April 1848.

winks at their crimes, while it profits by their depredations upon the enemy. Questions have sometimes arisen, whether a State can properly make use of such forces, and whether, when taken by the other belligerent, they are to be treated as ordinary prisoners of war. The answer to the first question is obvious. If authorised and employed by the State, they become a portion of its troops, and the State is as much responsible for their acts, as for the acts of any other part of its army. They are no longer partisans and guerrilleros, in the proper sense of those terms, for they are no longer self-controlled, but carry on hostilities under the direction and authority of the State. The solution to the second question may not be quite so obvious. It will, however, readily be admitted, that the hostile acts of individuals, or of bands of men, without the authority or sanction of their own Government, are not legitimate acts of war, and therefore, are punishable according to the nature or character of the offence committed. The taking of property by such forces, in offensive hostilities, is not a belligerent act authorised by the law of nations, but a robbery. So, also, the killing of an enemy by such forces, except in selfdefence, is not an act of war, but a murder. The perpetrators of such acts, under such circumstances, are not enemies, legitimately in arms, who can plead the laws of war in their justification, but they are robbers and murderers, and, as such, may be punished. Their acts are unlawful; and, when captured, they are not treated as prisoners of war, but as criminals, subject to the punishment due to their crimes. Hence, in modern warfare, partisan and guerrilla bands, such as we have here described, are regarded as outlaws, and, when captured, may be punished the same as freebooters and banditti. As examples, we refer to the conduct and punishment of the guerrilla bands, in Spain, during the Peninsular War, and by General Scott, in Mexico, during the war between that republic and the United States.'

9. Some have attempted to apply this rule to the insurgent inhabitants who, under the authority of the State, rise en masse and take arms to repel an invasion. The distinction between the two cases is too manifest to require an extended

1 Kent, Com. on Am. Law, vol. i. p. 94; Vattel, Droit des Gens, liv. iii. ch. xv. § 226; Phillimore, On Int. Law, vol. iii. § 96; Kluber, Droit des Gens, § 267; Hautefeuille, Des Nations Neutres, tit. iii. ch. ii.; Scott, General Orders, No. 372, Dec. 12, 1847.