of the hostile army. The occupation extends only to territories where this authority is established and in condition to be exercised." Occupation, it was contended on one side, is a vague term, and may answer to blockade as now understood. To be valid it must be effective. The occupant ought always to have force enough to repress an insurrection. This was the English point of view. The opposite or German view denied that occupation had the same character with blockade. It does not always manifest itself by exterior signs. A town left without troops ought nevertheless to be considered as occupied, and all risings there should be severely suppressed.

There must be such a thing as occupation, and it is not susceptive of exact definition. The "Institut de Droit International," in 1875, in examining the project of the declaration at Brussels, accepted the definition, "that a territory is considered as occupied from such a time, so long and so completely that the state of which it forms a part is prevented by the cessation of local resistance from publicly exercising there its sovereign authority." It is not our part to discuss here, but only to relate. We only express our opinion that no definition can confine the notion of occupation within exact limits, and that the fact of the exercise of belligerent power near a given place is as safe a rule to go by as any other.

Another article which was much complained of was that (Art. 9) which required that lawful combatants should be officered, should carry arms openly, should conform to the rules of war, and should have a distinctive sign (of their being soldiers), which could be recognized at a distance. To this it was objected that it would prevent the rising en masse of a people to resist an invader, when as yet unorganized; or would compel nations which had no enforced military training to introduce one. The tenth article, which admits the right of a people, in a territory as yet not occupied, to resist invaders, although there had been no time to organize according to Art. 9, and which regards them as belligerents if they respect the laws of war, seems to show that in Art. 9, guerilla-warfare, and the like practices are aimed at, after a country has been occupied.

And have not the rules and practice of war been extremely severe towards this class of persons? But enough has been said to show that nations with a system of military training applicable to the entire population of able-bodied men, and other nations without such a system, that nations which expect to invade others and nations which have outgrown aggressive warfare, can hardly be expected to unite on any body of rules, unless they be of the most meagre description. The project of the conference at Brussels aimed at too much, and came from a suspicious quarter. But the "Institut de Droit International" was not far out of the way in adopting-although not with entire unanimity—the following conclusion: that "the project of a declaration, agreed upon at Brussels . . . although having much resemblance to the American instructions of President Lincoln, has the advantage over them of extending to international relations a regulation made for one state, and of containing new requirements at once practical, humane, and progressive." They add in another of their conclusions that the project is, as far as all the materials included in it are concerned, "et quant au fond, à la hauteur de la science actuelle," although they concede that the elasticity or vagueness of certain expressions, which is an inevitable consequence of the necessity of securing an understanding between different states can give a handle to rigorous criticism.1

1 The projects and the protocols of the sessions of the conference were published in a thin quarto form at Brussels. The projects appear in an annex to L'Angleterre et les Petits États par le General T. Brussels, 1875. The Annual Register for 1874 contains a brief sketch of the conference [281]-[284]. The opposition to the project prevented the holding of a second meeting. The Revue du Droit Internationale, vol. vii., for 1875, contains a history of the conference and the conclusions of the Institut de Droit Internationale, to which I have referred.

SECTION III. Of Civil Wars, Wars with Savages, Piracy, and the Slave-trade.

§ 143.

We have thus far contemplated wars between sovereign states; but there may also be intestine or internal wars; wars with hordes of savages, or with nations not governed by our international code; and wars with pirates.

Internal wars.

By internal war we intend movements more serious and lasting than sedition, waged by portions of the people of a country against one another, including in the term country the complex body of a nation and its colonies or other dependencies. In some cases the connection with dependencies may be so remote that the war may almost be called a foreign one. A civil war is one in which the opposing parties are distributed over the territory; while a war in which they are localized may be called a rebellion, insurrection, or revolt. A civil war again does not generally aim at the destruction of unity, but rather at some change of government, constitution or laws, while the other may aim at sundering parts before united.

With internal wars international law comes into contact so far as the laws of war, that is, of humanity and natural justice, are concerned, and also in the bearings of the war upon the interests and rights of foreign states-a point to be considered in the sequel. (§ 179.) In every state there are laws against resistance to the authority of the government, defining sedition, treason, and the like, and punishing in person or property, or both. When an internal war breaks out, the government must determine whether the municipal or the international code, in whole or in part, shall be adopted. In general the relation of the parties ought to be nearly those of ordinary war, which humanity demands, and will be, because otherwise the law of retaliation will be applied. Municipal law may be enforced with less evil in the way of pecuniary than of personal penalties;

fines or confiscations may be efficacious in strengthening the government and deterring from rebellion. If slaves, as among us, form a part of the property of the rebels, since slavery is local and the law of nations knows of no such thing (§§ 74, 135), the advancing military power of the government may set them free and use or protect them in the region which it controls; and indeed, if force overthrows the local laws on which slavery rests, they become free of course.

The same rules of war are required in such a war as in any other the same ways of fighting, the same treatment of prisoners, of combatants, of non-combatants, and of private property by the army where it passes; so also natural justice demands the same veracity and faithfulness which are binding in the intercourse of all moral beings.

Nations thus treating rebels by no means concede thereby that they form a state, or that they are de facto such. There is a difference between belligerents and belligerent states, which has been too much overlooked.

When a war ends to the disadvantage of the insurgents, municipal law may clench the nail which war has driven, may hang, after legal process, instead of shooting, and confiscate the whole instead of plundering a part. But a wise and civilized nation will exercise only so much of this legal vengeance, as the interests of lasting order imperiously demand.

Again, as savage tribes are not governed by the justice which is acknowledged in Christian lands, international law Wars with is here likewise inapplicable. But here one of the savages. parties being a subject of a code which he believes to be founded in justice, it would be flagitious for him to depart from the essential principles which he observes towards other Christian states. Thus while summary punishment for robbery and treachery may be expedient, the Christian state is bound by its own character and practice, in warring with savages, to exercise good faith and humanity, to treat prisoners well, to respect treaties and truces, and to regard the civil rights of the savage communities. For though too degraded to understand what their obligations are, they can be raised

far above their present level by humane examples; while civilized men, falling down in their dealings with savages to their level, only increase their spirit of suspicion and revenge, and sink them to lower depths of ferocity.

Here let it be added, that the civilized and half-civilized nations of the world, which have not acknowledged

Dealings

with civil

ized nations who do not own our

code.

our law of nations, deserve a peculiar consideration. The object in their case ought to be not only to act justly and kindly towards them, but also to lead them to adopt our international law. Why should they not, if it is based on the true principles of human nature, presupposes a universal morality, and is thus fitted to be the law of mankind? In all probability a short time will be needed to bring Persia, Siam, China, or Japan, fully under this law, compared with that during which Christian states have been making and breaking it.

Pirates and

ment.

§ 144.

With piracy, however, the law of nations has to do, as it is a crime not against any particular state, but against their treat- all states and the established order of the world. Piracy is robbery on the sea, or by descent from the sea upon the coast, committed by persons not holding a commission from, or at the time pertaining to, any established 'state.1 It is the act (1) of persons who form an organization for the purposes of plunder, or with malicious intent; but who, inasmuch as such a body is not constituted for political purposes, cannot be said to be a body politic; (2) of persons who, having in defiance of law seized possession of a chartered vessel, use it for the purpose of robbery; (3) of persons taking a commission from two belligerent adversaries. The reason for ranking these latter among pirates is, that the animus furandi is shown by acting under two repugnant authorities. It has been held by some that a vessel which takes commissions even

1 If the robbery is confined to the land, although committed by the crew of a vessel, i. e., if it be committed within the territorial jurisdiction of any nation, it would not be called piracy, and would be justiciable by the sovereign of the territory alone. Dana on Wheaton, note 83.