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The exact definition of enemies given above applies more particularly to the business relations of the belligerents. It is not understood that each and every citizen shall, under all possible circumstances, commit acts of direct hostility against the enemy.

batants.

"The old strict theory in regard to a state of war was, that Sec. 28. Comeach and every subject of the one belligerent is at war with each and every subject of the other. . . . It is needless to say that no Christian State acts on such a theory, nor did the Greeks and Romans generally carry it out in practice to its extreme rigor. In particular there is now a wide line drawn between combatants and non-combatants, the latter of whom, by modern practice, are on land exempted from the injuries and molestations of war, as far as is consistent with the use of such a method of obtaining justice."*

of

"A combatant is any person directly engaged in carrying on war, or concerned in the belligerent government, or present with its armies and assisting them; although those who are present for purposes of humanity and religion, as surgeons, nurses and chaplains, are usually classed as non-combatants, unless special reasons require an opposite treatment of them."† "The effect of a state of war, lawfully declared to exist, is to General effect of place all the subjects of each belligerent power in a state of war. mutual hostility. The usage of nations has modified this maxim, by legalizing such acts of hostility only as are committed by those who are authorized by the express or implied command who may comof the State. Such are the regularly commissioned naval and hostility. military forces of the nation, and all others called out in its defence, or spontaneously defending themselves in case of urgent necessity, without any express authority for that purpose. The horrors of war would be greatly aggravated if every individual of the belligerent State was allowed to plunder and slay indiscriminately the enemy's subjects, without being in any way accountable for his conduct. Hence it is that in land wars, irregular bands of marauders are liable to be treated as lawless banditti, not entitled to the protection of the mitigated usages of war as practiced by civilized nations."

mit acts

Non

combatants.

"All the members of the enemy State may lawfully be treated Sec. 29. as enemies in a public war; but it does not therefore follow

Woolsey, Sec. 117.

1 Ibid. 128.

Lawrence's Wheaton, p. 626.

that all these enemies may be treated alike; though we may lawfully destroy some of them, it does not therefore follow that we may lawfully destroy all. For the general rule, derived from the natural law, is still the same, that no use of force against an enemy is lawful unless it is necessary to accomplish Classification. the purposes of war. The custom of civilized nations, founded upon this principle, has heretofore exempted the persons of the sovereign and his family, the members of the civil government, women and children, artisans, laborers, cultivators of the earth, merchants, men of science and letters, and, generally, all other public or private individuals engaged in the ordinary civil pursuits of life, from the direct effect of military operations, unless actually taken in arms, or guilty of some misconduct in violation of the usages of war by which they forfeit their immunity."*

Fishermen.

Treaty of 1871.

Conduct of noncombatants.

Fishermen also are generally classified as non-combatants, and are allowed to pursue their avocations unmolested, except where interrupted by actual warlike operations.

The treaty of 1785 between the United States and Prussia contained a stipulation that fishermen, "and in general all others whose occupations are for the common subsistence and benefit of mankind," should be classed as non-combatants.

A treaty of the United States with Italy, concluded in 1871, contains the same stipulations, and is, by its terms, to be as sacredly observed, in the event of war between the parties, "as the most acknowledged obligations of the law of nations."+

Non-combatants are required to remain passive and take no part in any hostile movement, but they may use force to defend themselves from aggression. If the people of an invaded district take an active part in hostilities, they forfeit their claim to immunity.

"The true theory seems to be, that private persons on each side are not fully in hostile relations, but in a state of non-intercourse, in a state wherein the rights of intercourse, only secured by treaty and not derived from natural right, are suspended or have ceased, while the political bodies to which they belong are at war with one another, and they only. Of course until these political bodies allow hostile acts to be performed, such acts, + U. S. Treaties, 1873, p. 509.

Lawrence's Wheaton, p. 591.

save in self-defence, may not be performed; and accordingly the usages of war visit with severity those who fight without a sanction of their governments. The plunder which such persons seize belongs not to themselves, but to the public, until public authority gives them a share in it."*

the enemy.

The enemy's allies are those who unite with him in carrying Sec. 30. Allies of on war, or furnish him with assistance of any kind in his operations, or are engaged with him in an offensive alliance.

Vattel would allow certain assistance to be furnished a belligerent, under treaty stipulations entered into before the commencement of a war, and holds it not inconsistent with neutrality, but, at present, such conduct on the part of any nation would be a lawful cause of war. But he also says: "It is of little consequence whether any one makes war on me directly, and in his own name, or under the auspices of another. Whatever rights war gives me against my principal enemy, the like it gives me against all his associates; for I derive those rights from the right to security,-from the care of my own defence; and I am equally attacked by the one and the other party."

'As their own conduct proclaims them my enemies, and they take up arms against me in the first instance, I may make war on them without any declaration; the war being sufficiently declared by their own act. This is especially the case of those who in any manner whatever, concur to make an offensive war against me."‡

"The sovereign declaring war can neither detain the persons nor the property of those subjects of the enemy who are within his dominions at the time of the declaration. They came into his country under the public faith. By permitting them to enter and reside in his territories, he tacitly promised them full liberty and security for their return. He is, therefore, bound to allow them a reasonable time for withdrawing their effects; and if they stay beyond the term prescribed, he has a right to treat them as enemies,—as unarmed enemies, however. But if they are detained by an insurmountable impediment, as by sickness, he must necessarily, and for the same reason, grant them a sufficient extension of the time."S

* Woolsey, Sec. 119; see " Prize, Capture, &c."

Vattel, p. 318.

† Vattel, p. 328.

Ibid. pp. 327-330.

Sec. 31. Ene

my's subjects

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Sec. 32. Pris

oners of war.

"The usage is now general, if not fixed, with the single exception of measures of retorsion, to allow the subjects of the enemy to remain within the territory during good behavior, in the enjoyment of their property, or to give them, by public proclamation, reasonable time to withdraw with their effects from the country."*

While some modern writers claim that the right to detain the persons of enemies found within the belligerent territory, and to confiscate their property, still exists in full force, except where modified by treaty stipulations, they admit the general usage to be as above stated.†

The Supreme Court of the United States has held, however, that while the declaration of war does not of itself legalize proceedings for the confiscation of the property of resident enemies, it does vest the right to confiscate; the assertion of the right depending on the will of the supreme authority of the nation.

In the later treaties made by the United States, a term is fixed, varying from six months to a year, which shall be allowed citizens of either party to arrange their business and withdraw with their effects from the enemy's territory.

The treaty of 1859 with Paraguay allows citizens of either party engaged in business to remain in the territory, under the protection of law, as long as they behave peaceably and commit no offence; but if "they prefer to leave the country, they shall be allowed the time they may require to liquidate their accounts and dispose of their property."§ This seems to refer to merchants especially. By the treaties with Mexico, 1848, San Salvador, 1850, United States of Colombia, 1846, and Bolivia, 1858, merchants are required to quit the country within a fixed term, while all other enemy's citizens may remain under protection. Other treaties made by the United States make no discrimination in this respect.||

"We have a right to repel an attack by force, and to use such force as may be necessary, even to taking the lives of our assailants. Under the name of enemies are to be classed not only the authors of war, but also those who join them or aid them in any way. But the very right to kill our enemies where

Woolsey. Upton, p. 37; Kent, p. 66 ; Lawrence's Wheaton, p. 531, n.
Cranch's Rep., Vol. VIII, p. 110. ? Treaties of U. S., 1873, p. 659.
|| Ibid. pp. 552, 752, 185, 88.

necessary, contains in itself a limitation, and where milder means of self-defence are sufficient, they must be adopted. This is the origin of the right to make prisoners of war. In battle those

allowed.

who lay down their arms must be given quarter, and in a siege, Quarter to be a garrison offering to surrender are never refused terms of capitulation."*

"There is, however, one case in which we may refuse to spare the life of an enemy who surrenders, or to allow any capitulation to a town reduced to the last extremity. It is when that enemy has been guilty of some enormous breach of the law of nations, and particularly when he has violated the laws of war. This refusal of quarter is no natural consequence of the war, but a punishment for his crime-a punishment which the injured party has a right to inflict. But in order that it be justly inflicted it must fall on the guilty. When we are at war with a savage nation, who observe no rules and give no quarter, we may punish them in the persons of any of their people whom we take (these belonging to the number of the guilty), and endeavor, by this rigorous proceeding, to force them to respect the laws of humanity. But wherever severity is not absolutely necessary, clemency becomes a duty."+

Fortunately the cases are very rare in modern warfare where a resort to the rule of no quarter is necessary.

"No use of force is lawful except so far as it is necessary. A belligerent has, therefore, no right to take away the lives of those subjects of the enemy whom he can subdue by any other means. Those who are actually in arms, and continue to resist, may be lawfully killed; but the inhabitants of the enemy's country who are not in arms, or who being in arms submit and surrender themselves, may not be slain, because their destruction is not necessary to the just ends of the war. Those ends may be accomplished by making prisoners of those who are taken in arms, or compelling them to give security that they will not bear arms against the victor for a limited period, or during the continuance of the war. The killing of prisoners can only be justifiable in those extreme cases where resistance on their part, or on the part of others who come to their rescue, renders it impossible to keep them."‡

* Vattel, p. 347; Bynkershoek, pp. 19, 20.

Lawrence's Wheaton, p. 588.

† Vattel, p. 348.

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