CHAPTER XVI. MEANS AND INSTRUMENTS FOR CARRYING ON WAR. CONTENTS. 82. Persons exempt from military 4. In whom is vested 1. Duty to serve and defend the state duty-3. If such persons engage in hostilities the right to raise troops - 5. Duty of a state to support its troops- 6. Pensions, asylums, hospitals, etc.-27. Use of mercenaries—28. Of partisans and guerrilla troops - 9. Insurgent inhabitants and levies en masse — 10. Hostile acts of private persons on the high seas—¿ 11. Use of privateers - 12. Privateers not used in recent wars-13. Declaration of the conference of Paris in 1856-214. How received by other states- 15. Privateers, by whom commissioned - 16. Treaty stipulations respecting privateers 17. Implements of war-2 18. Use of poisoned weapons — 19. Poisoning wells, food, etc.-20. Assassination of an enemy - 21. Surprises-22. Allowable deceptions- 23. Stratagems-2 24. Use of a false flag at sea- 25. Deceitful intelligence- 26. Employment of spies-27. Cases of Hale and André-228. Rewarding traitors - 29. Intestine divisions of enemy's subjects. § 1. As a general rule, every citizen is bound to serve and defend the state of which he is a member, as far as he is capable. This concurrence, for the common defense and general security, is one of the principal objects of every political association, and without this society could not be maintained. When, therefore, a state has declared war, every citizen is bound to assist in carrying it to a successful conclusion, whatever may be his individual opinion of the necessity or propriety of the resort to arms by his own government. Even though he may not deem the objects of the war justifiable, or its motives commendable, he is, nevertheless, bound to stand by the state in the prosecution of that war. This, however, will not prevent his directing his best efforts and influence to bring about a just and satisfactory settlement of the causes of the war. If he thinks that his own government has entered into the contest rashly and inconsiderately, he may seek to convince it of its error, and to induce a withdrawal or modification of its pretentions, and a concession of some of the enemy's demands; but, however justifiable and proper his efforts to restore peace, till this is effected the state is entitled to his services in carrying on the war. (Vattel, Droit des Gens., liv. 3, ch. 2, § 8; Burlamaqui, Droit de la Nat. et des Gens, tome 5, pt. 4, ch. 1; Phillimore on Int. Law, vol. 3, §§ 70, 71.; Wildman, Int. Law, vol. 2, § 8; Polson, Law of Nations, sec. 6; De Felice, Droit de la Nature, etc., tome 2, lec. 20.) § 2. Although every man, capable of bearing arms, is bound to take them up if required, in the service of the state, this duty is limited and regulated by municipal law. At present most nations maintain regular military and naval forces, which are increased in time of war by volunteers, militia, or new levies. Moreover, the soldiers and sailors required for carrying on military operations are generally enlisted without compulsion, which greatly mitigates the evils of war. Even where levies are made to fill up the ranks of the army, or to supply the navy, the great body of the people are left to pursue their ordinary peaceful avocations. Occasionally, however, the public authorities of particular places call out all citizens capable of carrying arms; but even then there are certain classes exempt from military duty. Old men, women and children are, in general, unfit for the occupation of war, being incapable of handling arms, or of supporting the fatigues of military service. Magistrates, and other civil officers, are exempted, their time being occupied in the administration of justice and the maintenance of order. The clergy are also usually exempted from military service, the duties of their profession being deemed incompatible with those of All these classes, which, by general usage, or the municipal laws of the belligerent state, are exempt from military duty, are not subject to the general rights of a belligerent over the enemy's person. To these are added, by modern usage, all persons who are not organized or called into military service, though capable of its duties, but who are left to pursue their usual pacific avocations. All these are regarded as non-combatants. (Bello, Derecho Internacional, pt. 2, cap. 3, § 4; Vattel, Droit des Gens, liv. 3, ch. 2, §§ 9, 10; Burlamaqui, Droit de la Nat. et des Gens, tome 5, pt. 4, ch. 1.; Phillimore, On Int. Law, vol. 3, § 70.; De Felice, Droit de la Nature, etc., tome 2, lec. 20.; Polson, Law of Nations, sec. 6.) § 3. Nevertheless, it often happens, in case of invasions, and in the seige of fortified towns, that not only merchants, mechanics, and the common peasantry, but also the the clergy, magistrates, old men, women, and even children, take up arms and render good service in the common defense. In doing this they lose the character of non-combatants, and become subject to the ordinary rules of war. Those who lay aside their peaceful avocations and engage, either directly or indirectly, in hostile acts toward the enemy, whether by the orders of their government, or their own free will, are liable to the consequences which lawfully result from such acts, but to none others. (Vattel, Droit des Gens, liv. 3, ch 2, § 10; ch 8, § 145; Burlamaqui, Droit de la Nat. et des Gens, tome 5, pt. 4, ch. 1; Phillimore, On Int. Law, vol. 3, § 94; De Felice, Droit de la Nat., etc., tome 2, lec. 25; Riquelme, Derecho Pub. Int., lib. 1, tit. 1, cap. 10; Real, Science du Gouvernement, tome 5, ch. 2, sec. 6, § 8.) §4. "As war cannot be carried on without soldiers," says Vattel, "it is evident that whoever has the right of making war, has also naturally that of raising troops." This is true with respect to the state in its sovereign capacity, but not with respect to the particular departments into which the government of the state is divided. The constitution must determine to what department these powers shall belong, and whether they shall be combined or separate. In most European countries they both belong to the sovereign, and are regarded as prerogatives of majesty. In England the sovereign declares war, but he cannot compel persons to enlist, nor can he, in fact, keep an army on foot without the concurrence of parliament. In the United States, congress alone can declare war, or authorize the raising of troops. The general right of the state to raise troops is a part of the jus eminens, or superior right, which the entire body may, for the common good, exercise over the individual members of which it is composed. (Vattel, Droit des Gens, liv. 3, ch. 2, § 7; Grotius, de Jur. Bel. ac Pac., lib. 1, cap. 1, § 6; Burlamaqui, Prin. du Politique, pt. 4, cap. 1, § 12; Kent, Com. on Am. Law, vol. 1, p. 262; Story, On the Constitution, § 950; Bowyer, Universal Public Law, ch. 20.) § 5. If every citizen, as among the Romans, took his turn in serving in the army, such service would naturally be gratuitous. But where only a portion are called into military service, while the others are left to pursue their ordinary avocations, it is right and proper that those who bear arms should be paid by those who do not, for no individual is bound to do more than his proportion for the service and defense of the State. The duty of the state to support its troops is evident, and its right to levy taxes for this purpose results from its general sovereign power over property within its territory, when necessity or the public good requires. It is a part of the jus eminens, which, when it regards property, is called by writers on public law dominium eminens. This right has, by some, been placed on the ground of an implied consent of individuals to part with a portion of their property for the public good, while others regard it as arising from the obligations of natural equity, the obligation to contribute to the support of the government being similar to other obligations of secondary natural law, resulting as consequences from the institution of civil society. (Grotius, de Jur. Bel. ac. Pac., lib. 1, cap. 1, § 6; Vattel, Droit des Gens, liv. 1, ch. 20, § 244; liv. 3, ch. 2, § 11; Zallinger, Inst. Jur. Nat. et Pub., tome 1, liv. 3, c. 4, § 214; Domat, Droit Pub. liv. 1, tit. 5; Bowyer, Universal Pub. Law, ch. 20.) § 6. The rights and duties of a state, with respect to the support of its soldiers, are not limited to the time of their actual service in bearing arms; the provisions made for their support in old age, or when disabled by toil, sickness, or wounds such as pensions, asylums, hospitals, etc.—are, therefore, regarded as constituting a part of their military pay; and the extent of these provisions generally determines the character of the state, and of its citizens, for humanity, generosity, and good government. A country which does not properly support and pay those who bear arms in its service, will soon find itself without the means of defense, and a government which leaves those who have wasted their strength, and shed their blood in its service, to beg their bread or perish with want, deserves, as it will always receive, the contempt of every noble and generous heart. Moreover, if the state neglect to provide for its troops regularly and systematically, they will provide for themselves by pillage, robbery and massacres while in the field, and by a subversion of the civil government on the return of peace. It is only, with respect to their conduct in war, that the provisions made by a state for the support of its troops become matters of serious international interest. The horrible atrocities committed by the unpaid troops of the middle ages, form the most bloody pages in the annals of history. (Hallam, Middle Ages, ch. 2; Manning, Law of Nations, p. 171; Vattel, Droit des Gens, liv. 3, ch. 2, §§ 11, 12; Ward, Law of Nations, vol. 1, pp. 265, et seq.) §7. Foreigners, who voluntarily serve a state for stipulated pay, are called mercenaries. The right of citizens of one state to be so employed by another, and of this other to so employ them, has often been discussed by publicists. That any citizen, with the consent of his own state, may serve another, cannot be denied. But, in doing this, he changes his nationality, and must thereafter look for support and protection to the state in whose service he is engaged. The right of a state, to permit its citizens to be employed in the military service of another, is very questionable, but the right of this other to so employ them, (with such permission,) cannot be doubted. The policy of doing so, is a very different question. Mercenaries enlist voluntarily, for no state has a right to require such service of undomiciled foreigners. Domiciled foreigners may be required to do duty in the militia, or the civic and national guards, for the preservation of order and the enforcement of the laws, within a reasonable distance of their place of domicil. But such duty is rather of a civil than a military character. It does not include service against a foreign enemy, nor general military service in a civil war. |