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garded as combatants, and if captured may be treated as prisoners of war.

The status of combatants is not extended to those who without state authorization engage in offensive hostilities, as in case a merchant vessel of one belligerent attacks another merchant vessel, or when private persons engage in offensive hostilities on land. The treatment of such persons may be according to the nature of the act. If the act is piratical, the usual penalty has been hanging. In time of war the strained. feeling due to hostilities is usually taken into consideration. Spies were formerly liable to summary treatment, but at present their status is well defined.

"Chapter II.-Spies.

"Article XXIX. A person can only be considered a spy when, acting clandestinely or on false pretenses, he obtains or endeavors to obtain information in the zone of operations of a belligerent, with the intention of communicating it to the hostile party.

"Thus, soldiers not wearing a disguise, who have penetrated into the zone of operations of the hostile army, for the purpose of obtaining information, are not considered spies. Similarly, the following are not considered spies: Soldiers and civilians, carrying out their mission openly, intrusted with the delivery of dispatches intended either for their own army or for the enemy's army. To this class belong likewise persons sent in balloons for the purpose of carrying dispatches and, generally, of maintaining communications between the different parts of an army or a territory.

"Article XXX. A spy taken in the act shall not be punished without previous trial.

"Article XXXI. A spy who, after rejoining the army to which he belongs, is subsequently captured by the enemy, is treated as a prisoner of war, and incurs no responsibility for his previous acts of espionage." 2

Noncombatant status is in general extended to those who take no direct part in the war. Such status is usually conced

2 Hague Convention, 1907, Laws and Customs of War on Land, Appendix, p. 542.

ed to women, children, clergy, scientists, discoverers, professional men, ordinary laborers, etc., who do not participate in the hostilities, regardless of allegiance.3

The United States, so early as July 6, 1798, authorized the President, in event of war, to regulate the sojourn of subjects of a hostile state remaining within United States jurisdiction. after the outbreak of war. Treaties have also provided for

such contingencies."

3 "When persons are allowed to remain, either for a specified time after the commencement of war, or during good behavior, they are exonerated from the disabilities of enemies for such time as they in fact stay, and they are placed in the same position as other foreigners, except that they cannot carry on a direct trade in their own or other enemy vessels with the enemy country." Hall, Int. Law (5th Ed.) 395. See, also, 1 Kent, Comm. p. 56; 1 Halleck, Int. Law (4th Ed.) 430, 461, 465; 2 Id. 484, 506.

41 Stat. 577.

"If by any fatality which cannot be expected, and which may God avert, the two contracting parties should be engaged in a war with each other, they have agreed, and do agree, now for then, that there shall be allowed the term of six months to the merchants residing on the coasts and in the ports of each other, and the term of one year to those who dwell in the interior, to arrange their business and transport their effects wherever they please, with the safe conduct necessary to protect them and their property, until they arrive at the ports designated for their embarkation. And all women and children, scholars of every faculty, cultivators of the earth, artisans, mechanics, manufacturers and fishermen, unarmed and inhabiting the unfortified towns, villages or places, and, in general, all others whose occupations are for the common subsistence and benefit of mankind, shall be allowed to continue their respective employments, and shall not be molested in their persons, nor shall their houses or goods be burnt, or otherwise destroyed, nor their fields wasted by the armed force of the belligerent, in whose power, by the events of war, they may happen to fall; but if it be necessary that anything should be taken from them for the use of such belligerent, the same shall be paid for at a reasonable price.

"And it is declared that neither the pretense that war dissolves treaties, nor any other whatever, shall be considered as annulling or suspending this article; but, on the contrary, that the state of war is precisely that for which it is provided, and during which its provisions are to be sacredly observed, as the most acknowledged obligations in the law of nations."

Article 21, Treaty between United States and Italy, Feb. 26, 1871.

NEUTRAL INDIVIDUALS DURING WAR.

111. A neutral state is not, in general, responsible for the conduct of its nationals during war; but the individual may be liable under domestic law to the state to which he owes jurisdiction and under international law to the belligerent.

Neutral persons are those who are nationals of states not taking part in the war. They are liable for acts which they commit against a belligerent, especially if they engage in military operations. Liability does not extend, in general, to aid by loans or indirect aid in civil or administrative services." While the neutral power is not obliged to prevent its nationals from engaging in contraband trade, from attempting to violate a blockade, or from unneutral service, yet it has no claim against a belligerent which inflicts the ordinary penalties for such offenses on its nationals.

A neutral state may, however, protest against any exceptionally severe treatment of its nationals, or against any policy which might involve such penalties. There was a general protest against the declaration of the Russian authority in the Far East in 1904 to the effect that correspondents using wireless telegraphy for communicating war news to the enemy would be treated as spies, and this protest was heeded.

• Hague Convention, 1907, Rights and Duties of Neutral Powers and Persons in Case of War on Land, c. III, Neutral Persons, Appendix, p. 548.

7 Foreign Relations U. S. 1904, p. 729.

CHAPTER XIV.

PROPERTY ON LAND.

112. Public Property During War-Immovable Public Property. Movable Public Property.

113.

114.

115.

Property of Municipalities and Institutions.
Immovable Private Property.

116. Movable Property of Military Use.

117. Private Property in Enemy Jurisdiction.

118. Booty.

PUBLIC PROPERTY DURING WAR-IMMOVABLE PUB

LIC PROPERTY.

112. (a) Immovable public property, destined for use in war, is liable to such treatment as the enemy may determine.

(b) Immovable public property, which is not destined for use in war, but which may be productive of national income and is within the jurisdiction or under the military authority of an enemy state, may be administered by that state according to the principles of usufruct. (c) Immovable public property similarly situated, which is not of use for war, but devoted to educational, religious, and like purposes, is exempt.

(a) Immovable public property, destined for military uses, as forts, dry docks, or aresenals, may become of special danger to the enemy, and therefore may be treated in such manner as the enemy may deem best suited to render it innocuous, or it may be used by the enemy against its original owner. A fortification might be destroyed, or might be occupied and used by the enemy for his own ends.

(b) Real estate, public buildings, forests, etc., belonging to one belligerent state, while within the power of the other belligerent, may be administered for his benefit. Formerly such property was regarded as hostile, and liable to destruction or other severe treatment. The title to such property is not now regarded as transferred with the physical control. The title must be confirmed by conquest or other method, and meantime

the occupying state has merely the right of occupancy and use of products of the property. The occupying state may collect and use the rents of public real property falling due, and a receipt for rent paid under such conditions is valid. An invader may use public buildings for public purposes. These buildings are liable to the ordinary wear and tear of such use. Furniture is considered a part of the building, and may not be removed. Likewise, if crops belonging to the state or trees in the public forests come to maturity or the time for cutting, they may be used by the invading state. If such property is sold to a party, that party would not have rights if he had not taken the property within his possession during the period of occupancy, as the original government, after its restoration, might prevent its appropriation.

(c) Immovable property, not of use for war, as educational institutions, churches, etc., though belonging to the state, is exempt, and should be restored at the end of the war in its original condition.

The rents or profits of property permanently set aside for the maintenance of hospitals, educational institutions, or for scientific or artistic purposes, are not liable to seizure, even though the property from which they are derived may be within the power of the enemy.

SAME-MOVABLE PUBLIC PROPERTY.

113. (a) Movable public property of one belligerent, which may be of use for war, is liable to seizure by the other belligerent.

(b) Movable public property, which is not of use for war, is exempt.

(a) Custom has, in general, applied the principle that all public property, which is susceptible of use by the belligerent seizing it for warlike purposes, or which can be of similar use to his enemy, directly or indirectly, can be appropriated. There is no question in regard to the following classes of property: Munitions of war, vessels of war, means of trans

12 Halleck, Int. Law (4th Ed.) 73; Hague Convention, 1907, Laws and Customs of War on Land, art. 55, Appendix, p. 544.

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