"2. To have a fixed distinctive emblem recognizable at a distance;

"3. To carry arms openly; and

"4. To conduct their operations in accordance with the laws and customs of war.

"In countries where militia or volunteer corps constitute the army, or form part of it, they are included under the denomination 'army.

(a) The status of combatants is also allowed to two classes which engage in defensive hostilities:

(1) The officers and crew of a merchant vessel of an enemy which defends itself by force are liable to capture as prisoners of war.

(2) With regard to levies en masse much difference of opinion existed. Article 10 of the Declaration of Brussels, 1874, was adopted at the Hague Conferences in 1899 and 1907, and may be considered as representing a generally accepted position, namely, "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 organize themselves in conformity with Article 1 [providing for responsible leader, uniform, etc.], shall be considered as belligerents if they carry arms openly and if they respect the laws and customs of

(b) The status of combatants is not allowable for those who, without state authorization, engage in aggressive hostilities.

(1) When in the time of war the officers and crew of a merchant vessel attack another merchant vessel, they are liable to punishment according to the nature of their acts, and the state to which they owe allegiance is only indirectly responsible, nor can they claim its protection.

(2) When bands of men without state authorization and control, such as guerrilla troops or private persons, engage in 2 See Appendix, p. lxiii.

1 Appendix, p. lxiii,

offensive hostilities, they are liable to the same treatment as above mentioned.

(3) Spies are those who, in disguise acting under false pretenses, collect or seek to collect information in the districts occupied by the enemy, with the intention of communicating it to the opposing force.1 Such agents are not forbidden, but are liable to such treatment as the laws of the capturing army may prescribe. This may be death by hanging, though a spy is always entitled to a trial. The office of spy is not necessarily dishonorable.

"Soldiers not in disguise who have penetrated into the zone of operations of a hostile army to obtain information are not considered spies. Similarly, the following are not considered spies : soldiers and civilians, carrying out their mission openly, charged with the delivery of dispatches destined either for their own army or for that of the enemy. To this class belong likewise individuals sent in balloons to deliver dispatches, and generally to maintain communication between the various parts of an army or a territory." 2

105. Noncombatants

Noncombatants include those who do not participate in the hostilities. In practice this status is generally conceded to women, children, clergy, scientists, artists, professional men, laborers, etc., who make no resistance, whether subjects of the state or not. These are, of course, liable to the hardships consequent upon war.

(a) When the armed forces of one state obtain authority over territory previously occupied by the other state, the noncombatant population is free from all violence or constraint other than that required by military necessity. They are liable, however, to the burdens imposed by civilized 2 Appendix, p. lxviii,

Status of noncombatants within a territory under control of an enemy.

1 Appendix, pp. xix, lxviii.

warfare. The disregard of the rights of noncombatant population in occupied areas during the World War in no way changed these principles.

Status of

subjects of one

belligerent

state within the

jurisdiction of the other.

(b) Subjects of one of the belligerent states sojourning within the jurisdiction of the other were in early times detained as prisoners. While Grotius (1625) allows this on the ground of weakening the forces of the enemy, and while Ayala had earlier (1597) sanctioned it, Bynkershoek, writing in 1737, mentions it as a right seldom used. The detention of English tourists by Napoleon in 1803 was not in accord with modern usage. During the eighteenth century, the custom was to secure, by treaty stipulation, a fixed time after the outbreak of hostilities during which enemy subjects might withdraw. While similar provisions are inserted in many treaties of the nineteenth century, the practice till 1914 seemed to indicate that even in the absence of treaty stipulations, a reasonable time would be allowed for withdrawal. A large number of treaties of the nineteenth century have provisions to the effect of Article XXVI of the treaty between the United States and Great Britain of 1794: "The merchants and others of each of the two nations residing in the dominions of the other shall have the privilege of remaining and continuing their trade, so long as they live peaceably and commit no offense against the laws; and in case their conduct should render them suspected, and their respective Governments should think proper to order them to remove, the term of twelve months from the publication of the order shall be allowed them for that purpose, to remove with their families, effects, and property." Article 23 of the treaty with Prussia, 1799, is similar. This custom of allowing enemy subjects to remain during good behavior has become common, but can hardly be called a rule of international law. Per

1" De Jure Belli," III, ix, 4.

2" De Jure et Officiis Bellicis," I, v, 25.

sons thus allowed to remain are generally treated as neutrals,1 though in the case of Alcinous v. Nigreu 2 it was held that an enemy subject, residing in England without a license, could not maintain an action for breach of contract, though the contract which had been entered into before the war was valid and might be enforced when peace was restored.

In the case of Porter v. Freudenberg in 1915 it was said: "When once hostilities have commenced he (an alien enemy plaintiff) cannot, so long as they continue, be heard in any suit

or proceeding in which he is the person first setting the Courts in motion," though "he can appear and be heard in his own defence." 3

1 Janson v. Driefontein, Consolidated Mines, Ltd., L. R. [1902], A. C. 484. 24 Ellis and Blackburn's Reports, 217.

L. R. [1915], 1 K. B. 857.

OUTLINE OF CHAPTER XVIII

STATUS OF PROPERTY ON LAND

106. PUBLIC PROPERTY OF THE ENEMY.

(a) Early practice.

(b) Provisions of the Hague Conference.

107. REAL PROPERTY OF ENEMY SUBJECTS.

108. PERSONAL PROPERTY OF ENEMY SUBJECTS. (a) Movable property now exempted as far as possible. (1) Stock in the public debt wholly exempt.

(b) Angary.

(c) Contributions.

(d) Requisitions.

(e) Foraging.

(f) Booty.