Sec. 24. Weapons that are allowable. Sec. 25. The troops that may be employed. that mode of terminating differences was admitted.”* The law of nations, now recognized, prohibits the use of poisoned weapons and missiles, and such as are intended only to inflict bad and painful wounds. The attempted use of explosive rifle balls, during the War of Secession in the United States, was condemned as opposed to the laws of war. Poisoning, or in any other manner assassinating an enemy, is forbidden. Poisoning springs and water-courses is equally prohibited, although the water supply of a besieged place may be diverted.† Many arms and missiles, as for instance chain-shot on board ships, were formerly prohibited, that could now be used without question at the will of a belligerent. The present practice in war is to make use of the most destructive weapons of offence, and mechanical ingenuity is stimulated to the highest point in the invention and manufacture of new and more terrible means of destruction. The use of mines and torpedoes, both on land and at sea, is increasing, and nothing is said against the wholesale loss of life they are intended to cause. It may almost be said that the modern tendency is to make war so destructive that no nation will engage in it. It is a fact, however, that since the invention of gunpowder, the suffering and loss of life in battle have been much lessened, and the same may be asserted of the introduction of the modern arms of precision. Wars have been very much shortened in duration by these means, and the aggregate loss of life in modern warfare has been much less than in ancient times, when the soldier met his enemy in hand-to-hand conflict, and a victory meant almost complete extermination of the vanquished army.‡ Modern usage has established a permanent military organization for duty in time of peace, and to serve as the basis of all the armies of a nation in the time of war. Thus, during a war, in addition to the regular forces, it is customary to call into service the militia or volunteers, who are uniformed and subjected to the same discipline as the regular troops, and who become, for the time they are in service, in all respects a part of the regular Volunteers. military establishment. The volunteers have then all the rights 1 Vattel, p. 361; Woolsey, Sec. 127. ↑ Hall, p. 457. * Chap. I, "War in general." and immunities granted to regular troops, and are not to be confounded with guerilla bands. "Partisan and guerilla troops are bodies of men self-organized Guerillas. and self-controlled, who carry on war against the public enemy, without being under the direct control of the State. They have no commissions or enlistments, nor are they enrolled as any part of the military force of the State; and the State is, therefore, only indirectly responsible for their acts. Such partisan and guerilla bands are regarded as outlaws, and, when captured, may be punished as freebooters and banditti. If authorized and employed by the State, they become a portion of its troops, and the State is as much responsible for their acts as for the acts of any other part of its army."* They are no longer partisans or guerillas, but are in every respect on the same footing as other troops. "International law makes a distinction between the unauthor- Levies en masse. ized acts of guerilla bands, and the authorized acts of levées en masse organized and armed by the State. When such militia are called into the field, and organized under the constituted authorities of the State, they are entitled to all the rights of war."+ Mercenary troops are foreigners voluntarily serving a State Mercenaries. for pay alone. The custom of employing mercenaries, once almost universal in Europe, has fallen into complete disuse. Such a practice could not be successfully defended, since the act of engaging in war from no other motive than private gain is clearly repugnant to every principle of morality and justice. Yet Vattel favors such enlistments, on the ground that their own country would be benefited by the knowledge of the art of war acquired by the mercenaries.I "The noble view of gaining instruction in the art of war, and thus acquiring a greater ability to render useful services to their country, has introduced the custom of serving as volunteers even in foreign armies; and the practice is undoubtedly justified by the sublimity of the motive. At present, volunteers, when taken by the enemy, are treated as if they belonged to the army in which they fight."S *Lawrence's Wheaton, p. 95, n. † Halleck, p. 334. Ibid. p. 400. Vattel, p. 297. Employment of savages. Sec. 26. The enlistment of troops. Modern custom permits a few of the officers of the neutral States to accompany armies in the field, to observe military movements, and the use of new arms, in order to report upon them to their governments. Such officers are protected by passports. "Nothing is clearer than 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."* Nevertheless, the practice of employing savages in warfare between civilized nations has been allowed by the rules of war, and many instances of it are afforded by modern history. The French, as late as 1859, brought the "Turcos," a force enlisted in North Africa, into Italy to take part in the operations against Austria. Great Britain habitually made use of savages in her wars in North America, and in 1877 threatened to use her Indian troops in Europe, bringing a body of Sepoys to Malta, as a menace to Russia, after the treaty of San Stefano had been published and pending the meeting of the Berlin Conference. As a war cannot be carried on without soldiers, it is evident that whoever has the right of making war has naturally that of raising troops. The latter, therefore, belongs to the sovereign. The power of levying troops, or raising an army, is of too great consequence in a State to be entrusted to any other than the sovereign. The subordinate authorities are not invested with it; they exercise it only by order or commission from the sovereign. But it is not always necessary that they should have an express order for the purpose. On those urgent exigencies which do not allow time to wait for the supreme order, the governor of a province, or the commandant of a town, may raise troops for the defence of the town or province committed to their care; and this they do by virtue of the power tacitly given them by their commission in cases of this nature."† The Constitution of the United States confers upon Congress the power to raise and support armies, and to make rules for enlistments. The President has the power, under the act of Congress of February 28th, 1795, to call the militia into active *Woolsey, Sec. 127. Vattel, p. 293. Art. I, Sec. 8. service, when the country shall be invaded, or be in imminent danger of invasion by an enemy, or when necessary to suppress an insurrection.* citizenship. "Every citizen is bound to serve and defend the State as far Obligations of as he is capable. Society cannot otherwise be maintained; and this concurrence for the common defence is one of the principal objects of every political association. Every man capable of bearing arms should take them up at the first order of him who has the the power of making war. "In former times, and especially in small States, every man became a soldier immediately on a declaration of war; the whole community took up arms, and engaged in the war. Soon after, a choice was made, and armies were formed of picked men,the remainder of the people pursuing their usual occupations. "No person is naturally exempt from taking up arms in the defence of the State,-the obligation of every member of society being the same. Those alone are exempted who are incapable of handling arms, or supporting the fatigues of war."+ This positive view of the obligation of the citizens in time of war is greatly modified by the present customs of civilization; classes of non-combatants being recognized by municipal law as well as by the law of nations. ments. At the present time, nations guard very jealously the right of Foreign enlistenlisting troops within their territory; not only as an attribute of their sovereignty, but to avoid complications with other States. Laws are passed prohibiting the enlistment of troops for the service of foreign powers, and prescribing severe penalties for their violation. Such are the Neutrality Act of the United States and the Foreign Enlistment Act of Great Britain. foreign en The penalty, in the United States, for enlisting in the military Penalties for service of a country at war with another between which and the listments. United States peace exists, or for inducing others to so enlist, or engaging to go beyond the limits of the United States for such purpose, is fine, not exceeding one thousand dollars, and imprisonment, not exceeding three years. The act is made applicable to all persons within the limits of the United States, * Brightly's Digest, p. 621. † Vattel, pp. 293, 294. Sec. 27. Who are enemies. Kent. Upton. Supreme Court of U. S. except such subjects of foreign States as may be temporarily residing there.* "The enemy is he with whom a nation is at open war. "When the sovereign or ruler of a State declares war against another State, it is understood that the whole nation declares war against another nation; for the sovereign represents the nation, and acts in the name of the whole society. Hence those two nations are enemies, and all the subjects of the one are enemies to all the subjects of the other. In this particular custom and principle are in accord."+ "When war is duly declared, it is not merely a war between this and the adverse government, in their political characters. Every man is, in judgment of law, a party to the acts of his own government, and a war between the governments of two nations is a war between all the individuals of the one, and all the individuals of which the other nation is composed. Government is the representative of the will of all the people, and acts for the whole society. This is the theory of all governments, and the best writers on the law of nations concur in the doctrine that when the sovereign of a State declares war against another sovereign, it implies that the whole nation declares war, and that all the subjects of the one are enemies to all the subjects of the other." "An alien enemy is one who is under the allegiance of a government at war with our own. "Where the allegiance due is of that permanent character which attaches to the citizen or subject, as such, there is no difficulty in determining his position and liabilities. His hostility is coeval with, and as permanent as, his allegiance. It begins with the commencement of his country's quarrel, and ends only with its termination."§ These definitions accord with the decisions of the Supreme Court of the United States, as to the position and obligations of citizens during war. In the war with Mexico it was held that in a state of war, the nations engaged in it, and all their citizens or subjects as well, are enemies of each other. || Brightly's Digest, p. 688; see also "Neutrality." † Vattel, p. 321. ? Upton, p. 44. Lawrence's Wheaton, p. 552, n. |