employment, though open and acknowledged, of savage allies who do not recognize the laws of war and of nations, against a civilized enemy, is discountenanced by the best jurists and statesmen of modern times.

But it is not a valid objection that individual soldiers are of a barbarous or pagan religion, when they are under the responsible command of officers of a civilized nation, and subjected to the articles of war.

Woolsey, (International Law, § 127, p. 217,) says, that “troops who are accustomed to an inhuman mode of warfare, and belong to a savage race, cannot be trusted to wage war according to the spirit of humanity, and ought not to be employed."

Defensive hostilities.

740. Subject to article 868, defensive hostilities, on sea or land, though without public authority, are lawful.

Halleck, Intern. Law and Laws of War, p. 391, and authorities there cited; Lawrence's Wheaton, Elem. of Intern. Law, pt. iv., ch. ii., § 8, p. 627; Dana's Wheaton, § 356.

Privateering abolished.

741. Privateering is and remains abolished; and offensive hostilities at sea can only be waged by the public armed ships of a belligerent.

1 Conference of Paris, 1856. Nearly all the nations of Europe have acceded to this rule; see preliminary note to Chapter LXIV., concerning HOSTILITIES AGAINST PROPERTY. The United States have always been willing to adopt it, coupled with the exemption of private property not contraband.

By the convention between the United States and

Aug.27, 1860,
May 13, 1858,

XXV., 12 Id., 1143.

XXV., 12 Id., 1003,

The Dominican Republic, Feb. 8, 1867, Art. XXV., 15 U. S. Stat. at L., 180. Venezuela, Bolivia, it is provided, that, no member of either nation shall apply for or take any commission or letters of marque, for arming any ship or ships to act as privateers, against the other nation, or against its citizens, people, or inhabitants, or any of them, or against the property of any of its inhabitants, from any prince or State with which such other nation shall be at war; and if any member of either nation shall take such commission or letters of marque, he shall be punished according to their respective laws.

And in the treaty between the United States and Guatemala, March 3, 1849, Art. XXV., 10 U. S. Stat. at L., (Tr.,) 1, it is provided that such persons may be treated as pirates.

Similar provisions are to be found in many other modern treaties.

Punishment of privateering.

742. A private ship, waging offensive hostilities whether with or without a commission from a nation, is a piratical ship; and all persons committing such hostilities are punishable as pirates.

Depredations on the high seas, without authority from any sovereign State, are acts of piracy. Lawrence's Wheaton, Elements of Intern. Law, p. 246, pt. II., ch. II, § 15; Dana's Wheaton, § 122.

If privateering be not abolished it ought to be declared that, " Any ship which takes a commission from any other power than the nation whose character it bears, as defined by Chapter XX., on NATIONAL CHARACTER OF SHIPPING, is a piratical ship, and all persons committing hos tilities under such commission, are punishable as pirates by any nation. See Halleck, Int. Law & Laws of War, p. 396'; and the treaty of 1786, be tween France and Great Britain.

It is plain, that taking a commission from each of two belligerents is piracy. 1 Phillimore's Intern. Law, § 358. See also Lawrence's Wheaton, pp. 250-254, note 80. Forsyth's Cases and Opinions in Constitutional Law, p. 116.

Taking a commission from both of two allied nations against a common enemy is equally condemned by Kent, (Commentaries, vol. 1, p. 100; citing as authorities for this rule, Valin's Com., tome 2, 235-236; Bynkershoeck, c. 17; Sir L. Jenkins' Works, 714;) although Halleck, (p. 396,) makes a distinction here, and holds that this is not piracy.

The taking of a commission from one belligerent by a neutral ship ought equally to be forbidden, according to Vattel, Droit des Gens, bk. 3, ch. 15, § 229.

An act of Congress of the United States, prohibits citizens to accept within the jurisdiction of the United States, a commission, or any person not transiently within the United States to consent to be retained or en listed, to serve a foreign State in war against a government in amity with the United States. It likewise prohibits citizens from being concerned without the limits of the United States, in fitting out or otherwise assisting any private vessel of war, to cruise against the subjects of friendly powers. Act of Congress, April 20, 1818, ch. 83, p. 100. And see Kent's Commentaries, p. 100. Similar prohibitions are contained in the laws of other countries. See the " Austrian Ordinance of Neutrality," Aug. 7, 1803, Arts. 2, 3.

The foreign enlistment acts of Great Britain and the United States, which are permanent statutes, impose severe penalties on citizens or residents, who receive commissions, equip privateers, or enlist men for service in any foreign war. 9 U. S. Stat. at L., p. 175.

The above rule would include all three classes of cases.

Pirates and brigands.

743. Pirates and brigands are criminals not entitled

to the protection extended to enemies by the laws of

war.

A military organization is not enough. Bluntschli, Droit International Codifié, § 513. If, however, such forces join, and are received by, the belligerent power, they become enemies.

Partisans, says Lieber, (Instructions, ¶ 81,) are soldiers armed and wearing the uniform of their army, but belonging to a corps which acts detached from the main body, for the purpose of making inroads into the territory occupied by the enemy. If captured they are entitled to all the privileges of prisoners of war.

Men or squads of men, who commit hostilities, whether by fighting or inroads for destruction or plunder, or by raids of any kind, without commission, without being part of the organized hostile army, and without sharing continuously in the war, but who do so with intermitting returns to their homes and avocations, or with the occasional assumption of the semblance of peaceful pursuits, divesting themselves of the character or appearance of soldiers, such men or squads of men, are not public enemies, and therefore, if captured, are not entitled to the privileges of prisoners of war, but should be treated summarily as highway robbers or pirates.

66

CHAPTER

LVIII.

AGAINST WHOM HOSTILITIES MAY BE WAGED.

ARTICLE 744. "Enemy " defined.

745. Individual enemies.

746. "Active enemies" defined.

747. "Passive enemies" defined.

748. Active enemies resisting with arms.

749. Non-combatants.

750. Passive enemies are inviolable.

751. Passive enemies, sick and wounded leaving

armed place.

752. Disarming places.

753. Persons communicating with the enemy.

Enemy" defined.

744. Except where a different intent plainly appears, the term "enemy," as used in this Code, without qualification, designates the hostile nation or community, and all individuals identified with it, as active enemies, according to the definition of article 746,

Individual enemies.

745. Individuals, regarded as enemies are either, 1. Active; or,

2. Passive.

"Active enemies" defined.

746. The following persons, and no others, are deemed active enemies :

1. Those impressed with a military character, by the belligerent,' as defined by article 736.

2. Those who, not being impressed with such character, are unlawfully waging hostilities;

3. Those who unlawfully give aid and comfort to the opposing belligerent ; *

4. Spies; and,

5. Pirates.

2

If a soldier of foreign origin take service in the standing army of a nation, he becomes, for the time of his service, a member de facto of the nation, for all belligerent purposes. Twiss, Law of Nations, pt. II.,

p. 81.

The phrase" aid and comfort to the enemies" of the nation, alone, does not include compulsory assistance, nor service in purely civil functions; nor mere expression of opinion, nor mere acts of charity done with intent to relieve immediate suffering, and not in aid of the cause. It designates overt acts, done with intent to further the war. 12 Opinions of U. S. Attorneys-General, pp. 160, 204. Non-combatants, who make forcible resistance, or violate the rules of warfare, give military information to their friends, or obstruct the forces in possession, are liable to be treated as combatants. Dana's Wheaton, Elem. of Intern. Law, $ 345, note 168; see also, Woolsey's Intern. Law, § 130.

It is not essential to constitute giving aid and comfort, that the effort should be successful, and actually render assistance. Overt acts, which, if successful, would advance the interests of the enemy, amount to aid and comfort. United States v. Greathouse, 2 Abbott's United States Reports, 364.

747. Passive enemies are all members of the hostile nation, or other belligerent community, and all domiciled residents therein, who are not active enemies.

Active enemies resisting with arms.

748. Subject to the restrictions contained in this

Book, it is lawful for a belligerent to attack and kill or subdue active enemies, while they are resisting with arms in their hands.

The rule that hostilities can only be waged, on the territory of a belligerent, and on the high seas, or in other places not within the jurisdiction of a neutral nation,-is embodied in the provisions of Division V., concerning NEUTRALS.

Non-combatants.

749. Persons impressed with the military character, whose duty does not require them to take part in hostilities, such as those employed in judicial, commissary and medical departments, are exposed to the dangers of general hostilities, but cannot lawfully be separately attacked, so long as they do not take part in actual hostilities.

Bluntschli, Droit International Codifié, § 578.

Passive enemies are inviolable.

750. Passive enemies cannot be made the objects of hostilities,' except as provided in this Title,' or incidentally when they are personally involved in the consequences of contests with active enemies.

1 66 No use of force against an enemy is lawful, unless it is necessary to accomplish the purposes of war. The custom of civilized nations, founded upon this principle, has therefore exempted the persons of the sovereign and his family, the members of the civil government, women and children, cultivators of the earth, artisans, laborers, merchants, men of science and letters, and generally, all 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." Lawrence's Wheaton, Elem. of Intern. Law, pp. 593–596; Dana's Wheaton, $ 345, citing, Vattel, Droit des Gens, liv. 3. ch. 8, §§ 145-147, 159; Klüber, Droit des Gens Moderne de l'Europe, pt. II., tit. 2, sec. 2, ch. 1, § 245-247. In some treaties and decrees, fishermen catching fish for food are also exempt.

2 They are liable to be taken prisoners of war, (see Articles 753 and 801,) and to visitation and search, (see Article 865.)

Halleck, (Intern. Law & Laws of War,'p. 427, § 3,) enumerates as exempt from direct operations of war; 1. Feeble, old men; women and children, and the sick; 2. Ministers of religion; men of science and letters; pro