tion. "Deserters merit severe and exemplary punishment; and the Sec. 39. Desersovereign may, if he thinks necessary, annex the penalty of death to desertion."* The punishment of death, or such other punishment as a court martial may adjudge, may be inflicted upon any person in the naval service who, in time of war, deserts or entices others to desert."+ "Fugitives and deserters, found by the victor among his enemies, are guilty of a crime against him; and he has undoubtedly a right to put them to death. They are perfidious citizens, traitors to their country; and their enlistment with the enemy cannot obliterate that character or exempt them from the punishment they have deserved."‡ Vattel speaks of a custom, no longer observed, of allowing the garrison, evacuating a surrendered place, a certain number of covered wagons in which deserters were placed to save them from detection, and as he says, to avoid too frequent executions. "Deserters from the Army and Navy of the United States, who did not within sixty days after the President's proclamation of March 11th, 1865, return to their commands, or report themselves to a provost marshal, are deemed to have forfeited their citizenship, as well as their right to become citizens of the United States; and such deserters shall be forever incapable of holding any office of honor or trust under the United States, or of exercising any of the rights of citizens."§ While it is dishonorable to induce persons in the service of an Sec.40. Traitors. enemy to betray their trusts, it, nevertheless, is done, and acts of treason when successful are rewarded.]] "To lead the officers, counsellors, or troops of an enemy to treachery by bribes, or to seduce his subjects to betray their country, are temptations to commit a plain crime, which no hostile relation will justify. Yet to accept the services of a traitor is allowable." Woolsey makes an exception in the case of a nation conquered, and under the rule of a usurper, when it should be considered allowable, he says, to incite the people to revolt. * Vattel, p. 298. Vattel, p. 351. Vattel, p. 375. † Act of July 17, 1862. ? Act of Congress, March 13, 1865. Sec. 41. Good faith towards an enemy. Stratagems lowable. al Sec. 42. Truce or armistice. "The faith of promises and treaties is the basis of the peace of nations. It is sacred among men, and absolutely essential to their common safety. It is certain that the promises and treaties are to be held sacred in war as well as in peace, between enemies as well as between friends. All promises made to an enemy in the course of a war are obligatory. But conventions made during a war are like all other compacts and treaties, of which the reciprocal observance is a tacit condition; we are no longer bound to observe them towards an enemy who has himself been the first to violate them." But while we are bound to hold sacred all promises to an enemy, and keep all engagements, expressed or implied, we may take any advantage of an enemy possible by stratagem or surprise without perfidy; indeed to make use of such means is highly commendable. On this account the circulation of any intelligence calculated to deceive an enemy is allowable. A vessel may hoist false colors to decoy an enemy within range of her guns, but to make signals of distress for such a purpose would be an act of the greatest perfidy. Vattel mentions the reported case of an English frigate making signals of distress off Calais, and making prisoners of some French sailors who went to her assistance; and says that, if true, such an action deserves a severe punishment.† "There are various modes in which the extreme rigor of the rights of war may be relaxed at the pleasure of the respective belligerent parties. Among these is that of a suspension of hostilities, by means of a truce or armistice. This may be either general or special. If it be general in its application to all hostilities in every place, and is to endure for a very long or indefinite period, it amounts in effect to a temporary peace, except that it leaves undecided the controversy in which the war originated. Such were the truces formerly concluded between the Christian powers and the Turks. Such, too, was the armistice concluded in 1609, between Spain and her revolted provinces in the Netherlands. A partial truce is limited to certain places, such as the suspension of hostilities, which may take place between two contending armies, or between a beseiged fortress and the army by which it is invested."‡ *Vattel, p. 371. Lawrence's Wheaton, p. 685. 1 Ibid. p. 374. into a truce. A general truce can be made only by the sovereign power, who may enter or its agents, specially empowered for this purpose. A special or partial truce may be concluded, according to the law of nations, by a military officer, even by a subordinate one within his district. This usage rests on the consideration that both policy and humanity require that such a discretionary power should be lodged in those who, being on the spot, can best understand the exigencies of the case. If an officer should be restricted in the use of this power contrary to usage, and yet should exercise it, his agreement, at least if not corruptly made, would be binding on his sovereign, provided that the other party knew nothing of the restriction. For that party had a right to infer from prevalent usage, and the nature of the command entrusted to him, that he had this power."* The convention made between General Sherman and the Confederate General Johnson, in April, 1865, for a suspension of hostilities, and the disbandment of the remaining Confederate armies, was set aside by the government, on the ground that the former had exceeded the powers entrusted to a military commander in making arrangements affecting the subsequent status of persons who had been engaged in rebellion, that could only be legally made by the supreme authority of a nation. Halleck calls a cessation of hostilities for a very short period and for a definite purpose, as for burying the dead and recovering the wounded after a battle, a “suspension of arms"; applying the phrase "truce" or "armistice" to cases of longer continuance, and for general or remote purposes.† truce. "A suspension of hostilities binds the contracting parties, and Effects of a all acting immediately under their direction, from the time it is concluded; but it must be duly promulgated in order to have a force of legal obligation with regard to other subjects of the belligerent States; so that if, before such notification, they have committed any act of hostility, they are not personally responsible, unless their ignorance be imputable to their own fault or negligence. But as the supreme power of the State is bound to fulfil its own engagements, or those made by its authority, express or implied, the government of the captor is bound, in the case of a suspension of hostilities by sea, to restore all prizes made in contravention of the armistice. To prevent the † Halleck, p. 654. * Woolsey, Sec. 148. truce. disputes and difficulties arising from such questions, it is usual to stipulate in the convention of armistice, as in treaties of peace, a prospective period within which hostilities are to cease, with a due regard to the situation and distance of places."* "If any of the subjects, whether military men or private citizens, offend against the truce, this is no violation of the public faith; nor is the truce thereby broken. But the delinquents should be compelled to make ample compensation for the damage, and severely punished. Should their sovereign refuse to do justice, on the complaints of the party injured, he thereby becomes accessory to the trespass, and violates the truce."+ Violation of a Any violation of a truce is an injury to the other party, and he may commence active hostilities at once, except where a penalty has been reciprocally stipulated, in which case the truce still holds until satisfaction is refused.‡ The general rule governing a truce is, that neither party shall do anything to the prejudice of the other, which could be prevented during active operations, but which the truce affords the opportunity of doing.§ The right of a garrison in a place under siege to repair and strengthen its defences, during a truce, is maintained by some writers; but is denied by others of such authority as Bynkershoek, Vattel and Wheaton. The authors that would allow the besieged to repair his defences during a truce would prohibit the besieging force from adding to its works of attack. || "The question is whether to strengthen works of offence or defence is an act of hostility, and consistent with a promise to suspend hostilities. It would appear that neither party can thus act in good faith, unless it can be shown that the usages of war have restricted the meaning of truce to the suspension of certain operations. The rule then laid down by Vattel, and which he is obliged to qualify by several others, namely, that each may do among themselves, that is, within their own territories or where they are respectively masters, what they would have the right to do in peace, is true only of the general operations of war. A power may use the interval in collecting its forces, *Lawrence's Wheaton, p. 686. | Vattel, p. 406. Ibid. p. 407. § Woolsey, Sec. 149; Vattel, p. 408. Vattel, p. 409; Bynkershoek, p. 194. strengthening its works which are not attacked, and the like. But when we come to the case of besieged towns, the question is of what are the two parties masters, and various quibbles might be devised to allow either of them to do what he pleased. 'The governor of a town,' says Vattel, 'may not repair breaches or construct works which the artillery of the enemy would render it dangerous to labor upon during siege, but he may raise up new works or strengthen existing ones to which the fire or attacks of the enemy were no obstacle.' Why, if this be so, may not the besiegers strengthen their works which are not exposed to the guns of the fortress? "'* Vattel says: "The truce concluded between the governor of a town and the general besieging it, deprives both of the liberty of continuing their works. With regard to the latter, this is manifest-his works being acts of hostility. But neither can the governor, on his part, avail himself of the armistice for the purpose of repairing the breaches or erecting new fortifications. But the suspension of arms does not hinder the governor from continuing within his own town such works as were not liable to be impeded by the attacks or fire of the enemy."† It is necessary that the time of the truce be accurately specified, in order to prevent all doubt or dispute respecting the period of its commencement and that of its expiration. truce. "In national compacts, the word 'day' is to be understood Duration of a of a natural day, since it is this meaning that a day is the common measure of time among nations. The computation by civil days owes its origin to the civil law of each nation, and varies in different countries. The natural day begins at sunrise, and lasts twenty-four hours, or one diurnal revolution of the sun. If, therefore, a truce of one hundred days be agreed upon, to begin on the first of March, the truce begins at sunrise on the first of March, and is to continue a hundred days of twenty-four hours each."+ Where no time is specified for the commencement of a truce, it is binding on the parties immediately, and must be published at once. At the expiration of a truce, concluded for a specified time, hostilities recommence without notice. "Every one who * Woolsey, Sec. 149. † Vattel, p. 409. Ibid. pp. 407-408. |