during the occupation. This has been done, and the great powers of Europe, in arranging the treaty of peace, either ignored or assented to this spoliation.*

Property of individual enemy subjects.-2. Property belonging to the individual subjects of the enemy state assumes the character of enemy property.

Property on land of this kind is in modern times exempt from direct seizure, but through contributions and requisitions, fines, etc., such property suffers indirectly but heavily in occupied territory, not to speak of the direct results of the march of a great army through a territory. Besides there is the possibility of its use for hostile purposes and a liability to direct destruction of anything approaching military resources in case a devastation is ordered to prevent the supplies reaching the other belligerent. Private property under an enemy flag at sea is still liable to capture and confiscation by the laws of the United States, although we have by action of Congress expressed our desire to see this liability abolished by the universal assent of the maritime powers.

There are some anomalies that would come within this subject, as when one belligerent assumes a protectorate over another state or country. In this case war does not necessarily exist between the protected state and the other belligerent. A case in point was the position of the Ionian Islands in the Crimean War. This little republic, under the protectorate of Great Britain, still kept up its trade with Russia, and an Ionian vessel captured for trading with the enemy was released by the English courts on the ground that the Ionian Republic was not at war with Russia. Hall gives a good rule for such cases when he says that the use which a country or place is put by the power which exercises de facto control determines the neutrality or belligerency of the territory.

2 Art. 56 of Hague Laws of War on Land.

As to persons living in enemy country.-One of the first questions arising at the outbreak of war would be the future status of enemy subjects or citizens residing in the state of the other belligerent at the outbreak of war.

The treatment of such persons has varied very much since the Middle Ages, but the usage has been progressively more and more humane and liberal.

The modern doctrine can be stated to be that expulsion may be resorted to in extreme cases, the necessity to be judged by the government of the state, but unless there are special reasons existing the subjects or citizens of the enemy state should be allowed to remain in the state of the other belligerent so long as they gave no aid or information to their own country.

The United States took the stand by special treaty with Great Britain in 1794 that in future wars between the countries, subjects or citizens of each residing in the country of the other should remain undisturbed so long as they lived peaceably and observed the laws. If their conduct was such as to cause them to be suspected they were to be allowed a term of twelve months to settle their affairs before leaving.

Dr. T. J. Lawrence sums up the modern rule of international law as to this matter in general terms to be “that, in absence of treaty stipulations, the right to arrest no longer exists, and, though the right to expel remains, it should be used sparingly and only in great emergencies."

The last instance of expulsion was in 1870 of Germans from the Department of the Seine during the Franco-German War of that date.

CHAPTER IX.

WAR CODES.-LAWS OF WAR.-GENEVA CONVENTIONS.

War codes. It is gratifying to quote the statement of Bluntschli, a distinguished European publicist, when he says that of the various modern acts and movements that have tended to ameliorate the evils of war, the promulgation of the "instructions for the government of the armies of the United States in the field, drawn up mainly by Dr. Francis Lieber, as a general order in 1863, was among the first and most remarkable." These rules are still in existence, and are in substantial accordance with the existing conventions adopted by The Hague Conferences in 1899 and 1907. These latter codes were adhered to by the United States, and that of 1907 will be found in the Appendix.

To these codes have been added the authoritative rules embraced in what is known as the Geneva Convention for the amelioration of the condition of the sick and wounded. This convention has been agreed to generally by the civilized powers, the United States acceding to the original articles March 1, 1882, and the convention is also authorized by The Hague code for warfare on land. The additional articles of the Geneva Convention which were tentatively adopted by the United States, have been superseded by the articles adopted by The Hague Conference of 1907, which are also in the Appendix.

Men who take up arms against one another in public war do not, as one of the articles of the code says, cease on that account to be human beings, responsible to one another and to God. The laws of war do not recognize in belligerents

an unlimited liberty as to the means of injuring the enemy. Belligerents are expected to avoid all needless severity and all perfidious, unjust or tyrannical acts. Agreements made by them during the continuance of war are to be scrupulously observed and respected. Religion and morality, the persons of the inhabitants, especially those of women, and the sacredness of domestic relations must be acknowledged and protected during hostilities and in hostile countries.

All municipal law of the land upon which the armies stand, or of the countries to which they belong, is silent and of no effect between armies in the field, but crimes punishable by all penal codes, such as arson, murder, maiming, assaults, highway robbery, theft, burglary, fraud, forgery and rape, if committed in an hostile country, are not only punishable as at home, but in all cases in which death is not inflicted the severest punishment shall be preferred.

The laws of war.—Before going more into detail as to the rulings of the law or laws of war upon various subjects during war and hostilities, let us ascertain the definition and scope of the law of war in its international aspect. Colonel Winthrop, of the United States Army, one of the most distinguished writers upon military law, says:

"By the term of law of war is intended that branch of international law which prescribes the rights and obligations of belligerents or, more broadly, those principles and usages which in time of war define the status and relations not only of enemies-whether or not in arms-but also of persons under military government or martial law, and persons simply resident or being upon the theatre of war, and which authorize their trial and punishment when offenders."

"On the actual theatre of military operations," says Mr. Justice Field," the ordinary laws of the land are superseded.

1 1 Beckwith vs. Bean, 98 U. S., 293.

by the laws of war. The jurisdiction of the civil magistrate is there suspended and military authority and force are substituted. Finding, indeed, its original authority in the war powers of Congress and the Executive and thus constitutional in its source the law of war may in its exercise substantially supersede for the time even the Constitution itself." ("Inter arma silent leges.")

The laws of war apply to the Navy as well as to the Army of the United States; the military establishment of our country in a legal sense being composed of the army and navy. For this reason an examination of the various usages and laws of war which may apply to both services is not out of place. It is not necessary perhaps to more than mention generally that the laws of war as now in force do not permit the use of poison or poisoned weapons, cold-blooded murder of individuals by treachery, the killing of antagonists who have surrendered, the use of arms, projectiles or substances that will cause unnecessary suffering, the refusal of quarter, or a declaration that no quarter will be given. By the Convention of 1907 which is now, alone of the two mentioned, in force with the signatory powers, a belligerent state is responsible for all acts committed by persons forming part of its armed forces.

Prisoners of war.-Prisoners of war are to be treated with humanity and should be exchanged without unreasonable delay. Capture is now neither a matter of punishment nor an act of vengeance, but a detention devoid of any penal character. The persons entitled to the consideration and privileges of prisoners of war are members of the army or navy of the enemy, both combatants and non-combatants, and the wounded and sick taken during operations or in hospitals. Civilians engaged in military or auxiliary duties such as clerks, telegraphers, aeronauts, teamsters, laborers, messengers, guides, scouts, pilots and men employed in trans