"In no case shall they be sold and given away, if captured by the armies of the United States, nor shall they ever be privately appropriated, or wantonly destroyed or injured."

Instructions for the government of armies of the United States in the field. 2 2 Halleck's Int. Law (Baker's ed.), 39 ff.

The bombardment of unfortified towns is not permitted by the law of nations. (See Calvo, 3d ed., vol. ii, 137.) An exception to this rule is recognized in cases where the inhabitants of an unfortified city oppose, by barricades and other hostile works, the entrance of the enemy's army, or wantonly proceed in the destruction of his property and refuse redress. As to Greytown, see §§ 224, 315.

"In the case of a collection of Italian paintings and prints captured by a British vessel during the war of 1812, on their passage from Italy to the United States, the learned judge (Sir Alexander Croke) of the vice-admiralty court at Halifax, directed them to be restored to the Academy of Arts in Philadelphia, on the ground that the arts and sciences are admitted amongst all civilized nations to form an exception to the severe rights of war, and to be entitled to favor and protection. They are considered not as the peculium of this or that nation, but as the property of mankind at large, and as belonging to the common interests of the whole species; and that the restitution of such property to the claimants would be in conformity with the law of nations, as prac ticed by all civilized countries."

Twiss, Law of Nations at War (2d ed.), 132.

V. WHO ARE ENTITLED TO BELLIGERENT RIGHTS.

(1) IN FOREIGN WAR AUTHORIZATION FROM SOVEREIGN GENERALLY NECESSARY.

§ 350.

"If one citizen has a right to go to war of his own authority, every citizen has the same. If every citizen has that right, then the nation (which is composed of all its citizens) has a right to go to war by the authority of its individual citizens. But this is not true, either on the general principles of society or by our Constitution, which gives that power to Congress alone, and not to the citizen individually. Then the first position is not true, and no citizen has a right to go to war on his own authority, and for what he does without right he ought to be punished."

Mr. Jefferson, Sec. of State, to Mr. Morris, Aug. 16, 1793. MSS. Inst., Ministers. 4 Jeff. Works, 37. Adopted by Mr. Webster, Sec. of State, report to President (Thrasher's case), Dec. 23, 1851. 6 Webster's Works, 527. (This report is not on record in the Department of State.) See supra, §§ 190, 203, 229, 230, 244, 257.

"While noticing the irregularities committed on the ocean by others, those on our own part should not be omitted nor left unprovided for.

Complaints have been received that persons residing within the United States have taken on themselves to arm merchant vessels, and to force a commerce into certain ports and countries in defiance of the laws of those countries. That individuals should undertake to wage private war, independently of the authority of their country, cannot be permitted in a well-ordered society. Its tendency to produce aggression on the laws and rights of other nations and to endanger the peace of our own is so obvious that I doubt not you will adopt measures for restraining it effectually in future."

President Jefferson, Fourth Annual Message, 1804.

"That an individual forming part of a public force, and acting under the authority of his Government, is not to be answerable as a private trespasser or malefactor, is a principle of public law sanctioned by the usages of all civilized nations, and which the Government of the United States has no inclination to dispute. All that is intended to

be said at present is, that since the attack on the Caroline is avowed as a national act, which may justify reprisals, or even general war, if the Government of the United States, in the judgment which it shall form of the transaction and of its own duty, should see fit so to decide, yet that it raises a question purely public and political, a question between independent nations, and that individuals concerned in it cannot be arrested and tried before the ordinary tribunals, as for the violation of municipal law."

Mr. Webster, Sec. of State, to the Attorney-General (Mr. Crittenden), Mar. 15, 1841. 2 Curtis' Webster, 65. In § 21, supra, Mr. Calhoun's reply to Mr. Webster, in this relation, is given.

As to Caroline case, see supra, § 50.

As to McLeod's case, Mr. Webster, in his speech in the Senate on the treaty of Washington (Apr. 6, 1846) said: "McLeod's case went on in the court of New York, and I was utterly surprised at the decision of that court on the habeas corpus. On the peril and risk of my professional reputation, I now say that the opinion of the court of New York in that case is not a respectable opinion, either on account of the result at which it arrives, or the reasoning on which it proceeds." In a note it is added that the opinion had been reviewed by Judge Tallmadge, of New York City, and that of this review Chief-Justice Spencer said that "it refutes and overthrows the opinion most amply," and that Chancellor Kent said, "It is conclusive at every point."

5 Webster's Works, 129.

For a full discussion of McLeod's caso, see supra, § 21.

No hostilities of any kind, except in necessary self-defense, can lawfully be practiced by one individual of a nation against an individual of any other nation at enmity with it, but in virtue of some public authority.

Talbot v. Janson, 3 Dall., 133.

The fact that the commander of a private armed vessel is an alien enemy does not invalidate a capture made by it.

The Mary and Susan, 1 Wheat., 46.

It is an offense against the law of nations for any persons, whether citizens or foreigners, to go into the territory of Spain with intent to recover their property by their own strength, or in any other manner than that permitted by its laws.

1 Op., 68, Lee, 1797.

"It is necessary, in order to place the members of an army under the protection of the law of nations, that it should be commissioned by a state. If war were to be waged by private parties, operating according to the whims of individual leaders, every place that was seized would be sacked and outraged, and war would be the pretense to satiate private greed and spite. Hence, all civilized nations have agreed in the position that war, to be a defense to an indictment for homicide or other wrong, must be conducted by a belligerent state, and that it cannot avail voluntary combatants not acting under the commission of a bel ligerent. But freebooters, or detached bodies of volunteers, acting in subordination to a general system, if they wear a distinctive uniform, are to be regarded as soldiers of a belligerent army. Mr. Field, in his proposed code, thus speaks: The following persons, and no others, are deemed to be impressed with the military character: (1) Those who constitute a part of the military forces of the nation; and (2), Those who are connected with the operations thereof, by the express authority of the nation.' This was accorded to the partisans of Marion and Sumter in the American Revolution, they being treated as belligerents by Lord Rawdon and Lord Cornwallis, who were in successive command of the British forces in South Carolina; by Napoleon to the German independent volunteers in the later Napoleonic campaigns; and by the Austrians, at the time of the uprising of Italy, to the forces of Garibaldi. (Lawrence's Wheaton's Elem. of Int. Law, 627, pt. iv, chap. ii, § 8; Dana's Wheaton, § 356; Bluntschli, Droit Int. Codifié, § 569, cited by Field, ut supra.) There must, however, be a military uniform, and this test was insisted on by the Government of the United States in its articles of war issued in 1863, and by the German Government in its occupation of France in 1871. The privileges of belligerents attach to subsidiary forces, camp followers, etc. But ununiformed predatory guerrilla bands are regarded as outlaws, and may be punished by a belligerent as robbers and murderers. (Halleck's Int. Law and Laws of War, 386, 387; Heffter, Droit Int., § 126; 3 Phill. Int. Law, § 96; Lieber's Instruc tions for the Government of Armies of the United States, § iv.) But if employed by the nation, they become part of its forces. (Halleck, 386, § 8; adopted by Field, ut supra.)"

Whart. Com. Am. Law, § 221.

(2) INSURGENTS ARE BELLIGERENTS WHEN PROCEEDED AGAINST BY OPEN WAR.

§ 351.

The question of recognition of belligerency is discussed, supra, § 69; that of insurgency as a preliminary to belligerency, infra, § 381.

VI. WHEN ENEMY'S CHARACTER IS IMPUTABLE TO NEUTRALS.

(1) WHEN RESIDING IN ENEMY'S JURISDICTION.

§ 352.

In other sections the liability of neutral or alien property to seizure is considered as follows: Rights of aliens generally, § 201; subjection of, to local seizures, § 203; injury of, from belligerent action, §§ 223 ff.; injury of, from mob attacks, § 226; belligerent's spoliation by neutral, §227; neutral's spoliation by belligerent, § 228; subjection of alien to reprisal, § 318; confiscation of goods of, as a war measure, § 336; contraband goods of, liable to seizure, § 375; cotton belonging to, suscepti bility of seizure when in belligerent lines, §§ 203, 224-228, 353, 373.

As to domicil attaching to aliens, see supra, § 198; infra, § 353.

"An answer to these notes has been delayed with the view of obtaining the opinion of the Supreme Court in the case entitled 'The United States v. Guillem,' which it was supposed might contribute to a better understanding of the case first named. That decision having been recently given, I have now the honor to transmit to you a copy of it for your consideration, and to state, in reply to your application, that the legality of the capture in the case of the Jeune Nelly has been incidentally tried and decided, both by the district court of Louisiana and by the Supreme Court of the United States."

Mr. Webster, Sec. of State, to M Boislecombe, Feb. 14, 1851. MSS. Notes,
France.

A neutral who places his personal property in a country occupied in turn by each of two belligerent armies takes the risks, and cannot afterwards proceed against the conqueror for injuries resulting from the course of war.

Mr. Bayard, Sec. of State, to Mr. Muruaga, June 28, 1886. MSS. Notes, Spain. A neutral, who has resided in an enemy's country, resumes his neutral rights as soon as he puts himself and his family in itinere to return home to reside, and has a right to take with him money he has earned, as the means of support for himself and his family. Such property, it was further held, is not forfeited by a breach of blockade by the vessel on board of which he has taken passage if he personally is in no fault.

U. S. v. Guillem, 11 How., 47. See this case considered in dispatch from Mr.
Hoffman, Apr. 14, 1879. For. Rel., 1879. Whart. Com. Am. Law, § 219.

The question how far a temporary residence of a neutral merchant in an enemy's country imposes on such merchant the enemy's liability to capture at sea, is discussed at large by Mr. Pinkney, as commissioner under the treaty of 1794. See Wheaton's Life of Pinkney, 245 ff.

An American citizen, residing in a foreign country, may acquire the commercial privileges attached to his domicil; and, by making him

self the subject of a foreign power, he places himself out of the protec tion of the United States while within the territory of the sovereign to whom he has sworn allegiance.

Murray r. The Charming Betsey, 2 Cranch, 64.

A Spanish subject, who comes to the United States in time of peace to carry on trade, and remains here engaged in trade after a war has been begun between Spain and Great Britain, is to be deemed an Amer ican merchant by the law of domicil, although by the law of Spain the trade in which he was engaged could be carried on only by a Spanish subject; his neutral character depending, not on the kind of trade in which he was engaged, but on his domicil.

Livingston v. Maryland Ins. Co., 7 Cranch, 506.

The acceptance and use of an enemy's license on a voyage to a neutral port, prosecuted in furtherance of the enemy's avowed objects, is illegal, and subjects vessel and cargo to confiscation. It is not neces sary, in order to subject the property to condemnation, that the person granting the license should be duly authorized to grant it, provided the person receiving it takes it with the expectation that it will protect his property from the enemy.

The Aurora, 8 Cranch, 203. As to license, see infra, § 388.

If a person who has acquired a domicil in an enemy's country cause property to be shipped before the war be declared, or before its declaration be known, it is, like other enemies' property, liable to capture. But national character which a man acquires by residence may be thrown off at pleasure by a return to his native country, or even by leaving the country in which he has resided for another.

The Venus, ibid., 253.

The domicil of a neutral or citizen in an enemy's country subjects his property embarked in trade to capture on the high seas.

Ibid.; The Frances, ibid., 335; S. P., ibid., 363.

If, upon the breaking out of a war with this country, our citizens have a right to withdraw their property from the enemy's country, it must be done within a reasonable time. Eleven months after the declaration of war is too late.

The St. Lawrence, 9 Cranch, 120.

A detention in the enemy's country by perils of the sea, or an act of the enemy, does not render unlawful a voyage lawful in its inception. The Mary, ibid., 126.

Shipments made by merchants actually domiciled in the enemy's country at the breaking out of a war partake of the nature of enemy trade, and, as such, are subject to capture.

The Mary and Susan, 1 Wheat., 46.