5. DECEIT. § 1115. Deceit against an enemy is as a rule permitted; but it is clearly understood that this does not embrace the abuse of signs which are employed in special cases to prevent the exercise of force or to secure immunity from it. "Thus information must not be surreptitiously obtained under the shelter of a flag of truce, and the bearer of a misused flag may be treated by the enemy as a spy; buildings not used as hospitals must not be marked with a hospital flag; and persons not covered by the provisions of the Geneva Convention must not he protected by its cross. A curious arbitrary rule affects one class of stratagems by forbidding certain permitted means of deception from the moment at which they cease to deceive. It is perfectly legitimate to use the distinctive emblems of an enemy in order to escape from him or to draw his forces into action; but it is held that soldiers clothed in the uniforms of their enemy must put on a conspicuous mark by which they can be recognized before attacking, and that a vessel using the enemy's flag must hoist its own flag before firing with shot or shell." Hall, Int. Law, 5th ed. 537-539, citing Ortolan, Liv. III. chap. I.; Pistoye et Duverdy, I. 231-234; Bluntchli, § 565; The Peacock, 4 Rob. 187. "101. While deception in war is admitted as a just and necessary means of hostility, and is consistent with honorable warfare, the common law of war allows even capital punishment for clandestine or treacherous attempts to injure an enemy, because they are so dangerous, and it is so difficult to guard against them." Instructions for the Government of Armies of the United States in the "ARTICLE XXIV. Ruses of war and the employment of methods necessary to obtain information about the enemy and the country, are considered allowable." Convention respecting the Laws and Customs of War on Land, The 6. TREATMENT OF RESIDENT ALIEN ENEMIES. § 1116. See, as to expulsion, supra, § 559. Various measures have been adopted by governments in relation to alien enemies residing within their territory. Such persons may, says Rivier, be detained, especially those subject to military service; or they may be interned in determinate places, or yet may be expelled, a brief delay being allowed them for settling up their affairs. But such measures, although justified by the right of self-preservation, are less and less practiced and are often criticised as not being in harmony with the spirit of modern war. ་ Rivier, Principes du Droit des Gens, II. 230. In 1755 British subjects were expelled from France; while in 1803 those between the ages of 18 and 60 were declared prisoners of war by Napoleon, ostensibly as an act of reprisals for the capture of French ships. During the Crimean war Russian subjects were permitted to remain in England and France. In 1870 Frenchmen were permitted to remain in Germany. On the contrary, Germans in France were first detained; but afterwards, by an order of Aug. 28, 1870, those residing in Paris or the Department of the Seine, were, on the ground of national defense as well of their personal safety, required to depart within three days, and either to leave the country or to retire to one of the depart ments below the Loire. By a ukase of May 12, 1877, Turkish subjects in Russia were permitted to continue to reside there and continue their business, subject to the laws. In 1879 Chileans were expelled from Bolivia and their goods confiscated. (Ibid.) The instructions issued to United States marshals with regard to alien enemies during the war of 1812 were of a general nature. The minor police regulations concerning such aliens were confided to the marshals, respectively, under those general instructions. (Mr. Adams, Sec. of State, to Mr. Cuthbert, M. C., March 1, 1821, 18 MS. Dom. Let. 274.) By treaties of commerce it has often been stipulated that the citi zens of the one country residing within the territories of the other shall, in the event of war, have a certain time within which to collect or dispose of their effects and depart. In yet other cases it has been provided that such persons may during the war continue their residence and business, so long as they behave themselves. See, for example, the treaty between the United States and the Argentine Confederation, July 10, 1853, Article XII. "Japanese subjects are allowed to continue, under the protection of the Russian laws, their sojourn and the exercise of peaceful occupations in the Russian Empire, excepting in the territories which are under the control of the imperial viceroy in the Far East." Imperial Russian order, Feb. 14, 1904, For. Rel. 1904, 727; also Monthly 7. PROHIBITION OF EXPORTS. § 1117. A libel was filed against the French privateer La Vengeance for forfeiture for exporting arms and munitions of war in violation of the act of May 22, 1793, prohibiting such exportation for a year. The district court made a decree of forfeiture, which was reversed by the circuit court on the ground that there had been no exportation within the meaning of the statutes. The Supreme Court affirmed the decree of the circuit court with costs, but the next day ordered the words with costs" to be stricken out," as there appeared to have been some cause for the prosecution." The question whether costs could in any case be awarded against the United States was left open. United States v. La Vengeance (1796), 3 Dall. 297, 301. The act of May 22, 1793, was passed, not during war, but in expectation or apprehension of war. As to the British royal proclamation issued Nov. 30, 1861, in apprehension of hostilities on account of the case of the Trent, prohibiting the exportation from the United Kingdom of gunpowder, saltpeter, nitrate of soda, and sulphur, see Moore, Int. Arbitrations, IV. 4379. April 14, 1862, the Secretary of the Treasury, by order of the President, ordered collectors of customs to "clear no vessel with anthracite coal for foreign ports nor for home ports south of Delaware Bay till otherwise instructed." May 18, 1862, this order was "so far modified as to apply only to ports north of Cape St. Roque, on the eastern coast of South America, and west of the fifteenth degree of longitude east." On July 30, 1864, these orders were modified so far as to permit the exportation of anthracite coal to Canada, except by sea, on condition that the Canadian government should prevent the exportation or use of the article on seagoing vessels. Appropriate action for the fulfillment of this condition was taken by the governor-general of Canada. Mr. Seward, Sec. of State, to Mr. Stuart, British chargé, Oct. 3, 1862, Dip. "Until further instructed you will regard as contraband of war the following articles, viz: Cannon, mortars, fire-arms, pistols, bombs, grenades, firelocks, flint, matches, powder, saltpetre, balls, bullets, pikes, swords, sulphur, helmets or boarding caps, sword belts, saddles and bridles, always excepting the quantity of the said articles which may be necessary for the defense of the ship and of those who compose the crew, cartridge-bag material, percussion and other caps, clothing adapted for uniforms, rosin, sail cloth of all kinds, hemp and cordage material, ship lumber, tar and pitch, ardent spirits, military persons in the service of the enemy, despatches of the enemy, and articles of like character with those specially enumerated. "You will also refuse clearances to all vessels which, whatever the ostensible destination, are believed by you, on satisfactory grounds, to be intended for ports or places in possession or under the control of insurgents against the United States, or that there is imminent danger that the goods, wares, or merchandise, of whatsoever description, will fall into the possession or under the control of such insurgents. And in all cases where, in your judgment, there is ground for apprehension that any goods, wares, or merchandise shipped at your port will be used in any way for the aid of the insurgents or the insurrection, you will require substantial security to be given that such goods, wares, or merchandise shall not in any way be used to give aid or comfort to such insurgents. You will be especially careful, upon applications for clearances, to require bonds with sufficient sureties for fulfilling faithfully all the conditions imposed by law or departmental regulations from shippers of the following articles to the ports opened, or to any other ports from which they may easily be and are probably intended to be reshipped in aid of the existing insurrection, namely, liquors of all kinds, coals, iron, lead, copper, tin. brass, telegraph instruments, wire, porous cups, platinum, sulphuric acid, zinc, and all other telegraph materials, marine engines, screw propellers, paddle wheels, cylinders, cranks, shafts, boilers, tubes for boilers, fire bars, and every article whatever which is, can, or may become applicable for the manufacture of marine machinery or for the armor of vessels." Order of the Secretary of the Treasury, May 23, 1862, under the act of May 20, 1862, given in Mr. Seward, Sec. of State, to Mr. Stuart, British chargé, Oct. 3, 1862, Dip. Cor. 1862, 296, 300, 302–303. May 5, 1864, an Executive order was issued "authorizing and directing a relaxation of the restriction on the exportation of horses, in favor of the exportation of certain horses which have been bought for the personal use of the Emperor of the French and the captaingeneral of Cuba." Mr. Seward, Sec. of State, to Mr. Chase, Sec. of Treas., May 5, 1864, 64 By a joint resolution of Congress of April 22, 1898, the President was "authorized, in his discretion and with such limitations and exceptions as shall seem to him expedient, to prohibit the export of coal or other material used in war from any seaport of the United States until otherwise ordered" by himself or by Congress. For the purpose of enforcing the provisions of this act, as well as of regulating the subject of exportations generally during the continuance of the war, a circular was issued by the Treasury Department April 27, 1898. Under the regulations and practice of that Depart ment, the interested persons were required to apply to the proper collector of customs for permission to clear the coal, stating who were the shippers and who the consignees. They were also required to make affidavit that the coal was not destined directly or indirectly for the enemies of the United States, and to agree to advise the Treasury Department by telegraph of the arrival of the coal at its destination immediately upon such arrival. The Treasury Department reserved the right to require the shipper to give bond for the transportation of the coal to the port for which clearance was asked, and from this bond he was not released till the cargo had arrived at that port or had been satisfactorily accounted for. This requirement was designed to prevent collusive captures, and was not as a rule exacted where the collector recommended the clearance and the standing of all the parties concerned was such as to convince the Treasury that the additional safeguard might be dispensed with. In this and in other particulars the action of the Treasury was largely governed by the circumstances of the case. The restrictions on exportation naturally resulted in a real or apprehended scarcity of coal at places which depended on the United States, in whole or in part, for their supply. At Vera Cruz, for example, where there is a considerable demand for the article for railways, double freight rates were offered for cargoes in the latter part of May. See Mr. Day, Sec. of State, to Mr. Andrade, Venezuelan min., June 6, 1898, MS. Notes to Venezuelan Leg. II. 22; Mr. Moore, Assist. Sec. of State, to Mr. Chamberlain, Bureau of Navigation, Treasury Dept., May 25, 1898, 227 MMS. Dom. Let. 641. By a proclamation of Oct. 14, 1905, the President, by virtue of the authority conferred upon him by the joint resolution of April 22, 1898, prohibited the export of arms and munitions of war from the United States or Porto Rico to the Dominican Republic, " until otherwise ordered by the President or by Congress." See supra, § 962. 8. PROTECTION OF NEUTRAL PERSONS AND PROPERTY. § 1118. Neutral persons and their property are as a general principle exposed to the same extent as noncombatant enemy subjects to the consequences of hostilities. To a certain extent however, which is not easily definable, neutral persons taken as individuals are in a more favourable position, relatively to an occupying belligerent, than are the members of the population with which they are mixed." Special measures are often taken to save them, so far as may be practicable, from the injurious effects of military operations. Hall, Int. Law, 5th ed. 736–738. |