it belongs to the ports of the belligerents. This, however, should not be done in contravention of belligerent rights as defined by the law of nations or by treaty. The only limitations of the rights to convoy recognized by the treaty between the United States and Mexico are those contained in the 24th article, which declares that when vessels are under convoy, the verbal declaration of the commander of the convoy, on his word of honor, that the vessels under his protection belong to the nation whose flag he carries, and, when they are bound to an enemy's port, that they have no contraband goods on board shall be sufficient. With these conditions the United States have at all times been willing to comply." Mr. Forsyth, Sec. of State, to Mr. Monasterio, May 18, 1837. MSS. Notes, Mex. "Calhoun asked, (at a Cabinet meeting on October 26, 1822), if we could authorize the merchant vessel itself to resist the belligerent right of search. I said no; and that the British claimed the right of searching convoyed vessels, but that we never admitted that right, and that the opposite principle was that of the armed neutrality. They maintained that a convoy was a pledge on the part of the convoying nation that the convoyed vessel has no articles of contraband on board, and is not going to a blockaded port, and the word of honor of the commander of the convoy to that effect must be given. But, I added, if we could instruct our officer to give convoy at all, we cannot allow him to submit to the search by foreigners of a vessel under his charge, for it is placing our officer and the nation itself in an attitude of infe riority and humiliation. The President agreed with this opinion, and Mr. Calhoun declared his acquiescence in it, and it was determined that the instructions to Biddle should be drawn accordingly." 5 J. Q. Adams's Mem., 86. "The act of sailing under belligerent or neutral convoy is of itself a violation of neutrality, and the ship and cargo if caught in delicto are justly confiscable; and further, if resistance be necessary, as in my opinion it is not, to perfect the offense, still, that the resistance of the convoy is to all purposes the resistance of the associated fleet. I am unable to perceive any solid foundation on which to rest a distinction between the resistance of a neutral and of an enemy master. "I cannot bring my mind to believe that a neutral can charter an armed enemy ship, and victual and man her with an enemy crew with the avowed purpose and necessary intent that she should resist every enemy; that he should take on board hostile shipments or freight, commissions, and profits; that he can be the entire projector and conductor of the voyage, and co-operate in all the plaus of the owner to render resistance to search secure and effectual; and that yet, notwithstanding all this conduct, by the law of nations he may shelter his property from confiscation, and claim the privileges of an inoffensive neutral." Story, J.; The Nereide, 9 Cranch, 445, 453, 454; dissenting opinion. See opinion of court by Marshall, C. J., supra, § 343. IV. RULES OF CIVILIZED WARFARE TO BE OBSERVED. (1) SPIES AND THEIR TREATMENT. § 347. "A spy is a person sent by one belligerent to gain secret information of the forces and defenses of the other, to be used for hostile purposes. According to practice he may use deception under the penalty of being lawfully hanged if detected. To give this odious name and character to a confidential agent of a neutral power, bearing the commission of his country, and sent for a purpose fully warranted by the law of nations, is not only to abuse language but also to confound all just ideas, and to announce the wildest and most extravagant notions, such as certainly were not to have been expected in a grave diplomatic paper; and the President directs the undersigned to say to Mr. Hülsemann that the American Government would regard such an imputation on it by the Cabinet of Austria, as that it employed spies, and that in a quarrel none of its own, as distinctly offensive, if it did not presume, as it is willing to presume, that the word used in the original German was not of equivalent meaning with 'spy' in the English language, or that in some other way the employment of such an opprobrious term may be explained. Had the Imperial Government of Austria subjected Mr. Mann to the treatment of a spy it would have placed itself without the pale of civilized nations, and the Cabinet of Vienna may be assured that if it had carried, or attempted to carry, any such lawless purpose into effect in the case of an authorized agent of this Government, the spirit of the people of this country would have demanded immediate hostilities to be waged by the utmost exertion of the power of the Republic, military and naval." Mr. Webster, Sec. of State, to Mr. Hülsemann, Dec. 21, 1850. MSS. Notes, As to André's case, see 3 Phill. Int. Law (3d ed.), 168. See also supra, §§ 225, 226. (2) PRISONERS AND THEIR TREATMENT. (a) GENERAL RULES. § 348. "An American citizen, being a pilot, may lawfully exercise his usual functions as pilot on board of any vessel-of-war; and if during his employment on board an engagement takes place, his being on board is not to be considered as criminal, but accidental and innocent." Mr. Randolph, Sec. of State, to Mr. Fauchet, Sept. 17, 1794. MSS. Notes, A French decree "that every foreigner found on board the vessels of war or of commerce of the enemy is to be treated as a prisoner of war, and can have no right to the protection of the diplomatic and commercial agents of his nation," is in contravention of the law of nations. Mr. Madison, Sec. of State, report, Jan. 25, 1806. As to treatment of British prisoners during Revolutionary War, see 3 John A subject of a foreign power, acting under a commission from the hostile Government, should be treated as an enemy, and confined as a prisoner of war. 1 Op., 84. See supra, § 21. "By the law of war either party to it may receive and list among his troops such as quit the other, unless there has been a previous stipulation to the contrary. But when they (such refugees) have been received, a high moral faith and irrevocable honor, sanctioned by the usages of all nations, gives to them protection personally and security for all that they have or may possess. They are exempt also from all reproach from the sovereignty to which their services have been rendered. Nothing that they claim as their own can be taken from them upon the imputation that they had forfeited or meant to relinquish it by the abandonment of their allegiance to the sovereignty which they have left." Wayne, J.; U. S. v. Reading, 18 How., 10. "I have the honor to acknowledge the receipt of a letter, dated 25th March, from the Acting Secretary of War, inclosing a paper compiled by Lieutenant-Colonel Poland, which contains the English text of the Geneva (Red Cross) convention (1864), of the additional articles (1868), and of the declaration of St. Petersburg (1868) in regard to explosive bullets. Your Department asks for any further information in respects mentioned in said paper. "I inclose a copy of the President's proclamation (July 26, 1882) by which it will be seen that while this Governmont has acceded to the Geneva convention, its accession to the additional articles has been reserved until it shall be notified of their ratification by the signatory powers. "This notification has never been given, and these articles therefore have not the binding force of a convention. "The only additional ratification of the Geneva convention notified to this Government since July, 1882, is that of Bulgaria, March 1, 1884. "The United States not being a party to the declaration of St. Petersburg, this Department has issued no official copy thereof. LieutenantColonel Poland's version is an essentially correct translation of the French copy on our files, and the signatory powers are correctly enumerated. "The United States has made no conventional agreements with other powers in regard to the subjects of these conventions and this declaration." 46 Mr. Bayard, Sec. of State, to Mr. Endicott, Sec. of War, April 2, 1886. MSS. PROCLAMATION OF THE PRESIDENT OF THE UNITED STATES ANNOUNCING ACCESSION TO THE AFORESAID ARTICLES. "Concluded August 22, 1864; acceded to by the President March 1, 1882; accession concurred in by the Senate March 16, 1882; proclaimed as to the original convention (1864), but with reserve as to the additional articles July 26, 1882. "The President's ratification of the act of accession, as transmitted to Bern, and exchanged for the ratification of the other signatory and adhesory powers, embraces the French text of the convention of August 22, 1864, and the additional articles of October 20, 1868. The French text is therefore for all international purposes the standard one. "By the President of the United States of America-A proclamation. "Whereas on the 22d day of August, 1864, a convention was concluded at Geneva, Switzerland, between the states enumerated, etc., the tenor of which convention is hereinafter subjoined: " (Here follows the text of the original articles.) "And whereas the several contracting parties to the said convention exchanged the ratifications thereof at Geneva, on the 22d day of June, 1865. "And whereas the several states hereinafter named have adhered to the said convention in virtue of Article IX thereof, to wit: Sweden, December 13, 1864; Greece, January 5–7, 1865; Great Britain, February 18, 1865; Mecklenburg-Schwerin, March 9, 1865; Turkey, July 5, 1865; Würtemberg, June 2, 1866; Hesse, June 22, 1866; Bavaria, June 30, 1866; Austria, July 21, 1866; Russia, May 10-22, 1867; Persia, December 5, 1874; Roumania, November 18-30, 1874; Salvador, December 30, 1874; Montenegro, November 17-29, 1875; Servia, March 24, 1876; Bolivia, October 16, 1879; Chili, November 15, 1879; Argentine Republic, November 25, 1879; Peru, April 22, 1880; Bulgaria, March 1, 1884. "And whereas the Swiss Confederation, in virtue of the said Article IX of said convention, has invited the United States of America to accede thereto. And whereas on the 20th October, 1868, certain additional articles were proposed and signed at Geneva on behalf of Great Britain, Austria, Baden, Bavaria, Belgium, Denmark, France, Italy, Netherlands, North Germany, Sweden and Norway, Switzerland, Turkey, and Würtemberg, the tenor of which additional articles is hereinafter subjoined." (Here the text of additional articles follows:) "And whereas the President of the United State of America, by and with the advice and consent of the Senate, did, on the first day of March, one thousand eight hundred and eighty-two, declare that the United States accede to the said convention of the 22d of August, 1864, and also accede to the said convention of October 20, 1868. "And whereas on the ninth day of June, one thousand eight hundred and eightytwo, the Federal Council of the Swiss Confederation, in virtue of the final provision of a certain minute of the exchange of ratifications of the said convention at Bern, December 22, 1864, did, by a formal declaration, accept the said adhesion of the United States of America, as well in the name of the Swiss Confederation as in that of the contracting states. "And whereas, furthermore, the Government of the Swiss Confederation has informed the Government of the United States, that the exchange of the ratifications 321 S. Mis. 162-VOL. III-21 of the aforesaid additional articles of October, 20, 1868, to which the United States of America have in like manner adhered as aforesaid, has not yet taken place between the contracting parties, and that these articles cannot be regarded as a treaty in full force and effect. "Now, therefore, be it known that I, Chester A. Arthur, President of the United States of America, have caused the said convention of August 22, 1864, to be made public, to the end that the same and every article and clause thereof may be observed and fulfilled with good faith by the United States and the citizens thereof, reserving, however, the promulgation of the hereinbefore mentioned additional articles of October 20, 1868, notwithstanding the accession of the United States of America thereto, until the exchange of the ratifications thereof between the several contracting states shall have been effected, and the said additional articles shall have acquired full force and effect as an international treaty. "In witness whereof I have hereunto set my hand and caused the seal of the United States to be affixed. "Done at the city of Washington this twenty-sixth day of July, in the year of our Lord one thousand eight hundred and eighty-two, and of the Independence of the United States, the one hundred and seventh. "By the President: "CHESTER A. ARTHUR. [L. 8.] "Secretary of State." "FREDERICK T. FRELINGHUYSEN, The following is the convention referred to in the above proclamation: CONVENTION FOR THE AMELIORATION OF THE CONDITION OF SOLDIERS WOUNDED IN ARMIES IN THE FIELD. The Swiss Confederation, Baden, Belgium, Denmark, Spain, France, Hesse, Italy, Netherlands, Portugal, Prussia, Würtemberg, being equally animated by the desire to mitigate, as far as depends upon them, the evils inseparable from war, to suppress their useless severities, and to ameliorate the condition of soldiers wounded on the field of battle, have resolved to conclude a convention for that purpose, and have named their plenipotentiaries. Who, after having exchanged their powers, found in good and due form, have agreed upon the following articles: ARTICLE I. Ambulances and military hospitals shall be acknowledged to be nenter, and, as such, shall be protected and respected by belligerents so long as any sick or wounded may be therein. Such neutrality shall cease if the ambulances or hospitals should be held by military force. ART. II. Persons employed in hospitals and ambulances, comprising the staff for superintendence, medical service, administration, transport of wounded, as well as chaplains, shall participate in the benefit of neutrality whilst so employed, and so long as there remain any wounded to bring in or to succor. ADDITIONAL ARTICLE I.* The persons designed (designated) in Article II of the convention shall continue after occupation by the enemy to give their services, according to the measure of the necessities, to the sick and the wounded of the ambulance or hospital which they serve. * The Government of the United States acceded to the original articles of the "Red Cross" convention of 1864, but its accession to the additional articles has been reserved until it shall be notified of their ratification by the signatory powers. This notification has never been given, and these additional articles therefore have not the binding force of a convention. |