THE LAWS OF WAR 39 vs. Arnold (83 N.C. 210) the court said, referring to the Constitution, that during the Civil War "Its voice was hushed and its power suspended amid the din of arms.” b. The term "Laws of War" is, in a way, a misnomer. The word law gives us two quite definite mental impressions. One is that a rule has been laid down by superior authority, and the other is that it must be obeyed at the peril of punishment, for disobedience, by the power which laid it down for guidance. It is perfectly clear that the rules of international law are not laid down by superior authority, and that they are not enforceable on sovereign states by any legally constituted superior power. Why, then, does a sovereign state live up to rules which may have become inconvenient or irksome to it? There are a number of forces which operate to secure obedience, even though they do not penalize in the ordinary sense. In peace, these forces consist of the pressure which the better and more moral element of the citizens of a state will bring to bear on its central government to compel right action, the ever-present likelihood that the injured or offended people will take action through their central government by way of a declaration of war or something of that nature to secure proper treatment and respect for their rights, and the view that international public opinion will take of the situation. In war, these forces consist principally of public opinion in neutral nations, and the possibility that the enemy will resort to reprisals or some other form of retaliation. These are subtle but very effective forces. They are easily recognizable in the affairs of our daily lives, where they are not less potent than in the affairs of the great modern states. 33. WHERE THE LAWS OF WAR MAY BE FOUND.-The laws of war have been formulated in special treaties and discussed in a series of authoritative publications which have already been considered in Section I of this chapter. Of these, and official manuals on the subject in which extracts may be found, the following may be listed here for the purpose of convenience: a. Instructions for the Government of the Armies of the United States in the Field.-Lieber. (Published in G.O. No. 100, A.G.O., 1863.) 40 MILITARY AID TO THE CIVIL POWER b. Geneva Convention of 1864. c. Declaration of St. Petersburg of 1868. d. Project of the Brussels Conference of 1874. e. Manual of the Laws of War on Land, prepared by the Institute of International Law, 1880. f. Declaration of The Hague Conference of 1899. g. International Red Cross Convention, Geneva, 1906. h. Second International Peace Conference, The Hague, 1907. i. Rules of Land Warfare, 1914. (NOTE.-Important extracts will be found in No. 34, Appendix A, of this text.) 34. TOPICAL SUBDIVISIONS. For the purposes of this text, the laws of war may be considered as topically subdivided as follows: a. The laws of war as affecting the rights of our own people. b. The laws of war as affecting intercourse between enemies. c. General principles governing the conduct of war. d. Military government. e. Martial law. The first three of these are considered briefly in the next three sections of this chapter. The last two are covered in Chapters III and IV, respectively. SECTION III Laws of War as Affecting the Rights of Our Own People The taking or destruction of private property Paragraph 35 36 35. THE TAKING OR DESTRUCTION OF PRIVATE PROPERTY.-a. In time of war, when there is urgent necessity or immediate public danger, the military commander may appropriate such private property of our own citizens, even in our own territory, as may be needed for the use or subsistence of our army or for defense against the enemy, and he may seize or destroy any private property to keep it from falling into the hands of the enemy or from being availed of by him for attack or defense. THE LAWS OF WAR 41 b. It is the emergency which gives this right, but the right is not given by all emergencies. The exigency must be imminent, not contingent or remote, and the danger immediate or impending, or the necessity for the public service must be so urgent as not to admit of delay, otherwise the taking or destruction will not be justified and the individual commander (not the government) will be held to be a trespasser and liable in damages to the owner. c. Ordinarily, property taken by the government must be paid for by the government, for our Constitution provides that private property shall not be taken for public use without due compensation. This, however, should be distinguished from the destruction or damage to private property incidentally occasioned by legitimate operations against an enemy in an emergency, in which case the owner is not in a position successfully to prosecute any claim whatever against the government except as sanctioned by the government in special statutory provisions. (See the Acts of Aug. 24, 1912, [37 Stat. 586], April 18, 1918 [40 Stat. 532], June 4, 1920 [41 Stat. 779], and June 30, 1922 [42 Stat. 725].) 36. ARREST AND RESTAINT.-Such of our own people as may become chargeable with relieving or communicating with the enemy, carrying on illicit trade or intercourse, or other violations of the laws of war, may be arrested, tried, and punished. 37. RULE OF NON-INTERCOURSE.-Upon the declaration or initiation of a foreign war, or of a civil war such as our own War of the Rebellion, not merely the opposing military forces but all citizens or subjects of each belligerent be 42 MILITARY AID TO THE CIVIL POWER come the legal enemies of both the adverse government and its citizens or subjects, and all intercourse between them, direct or indirect, is terminated and interdicted, even innocent correspondence having no relation to the war being prohibited. (See Chap. I, Sec. III, par. 20.) Violations of this rule by selling to, buying from, or contracting with enemies, furnishing them with supplies, corresponding with or carrying mail to them, passing the lines without authority, etc., are among the offenses most frequently tried and punished by military commissions. 38. EXCEPTIONS TO THE ABOVE RULE.-Among the more familiar exceptions to the foregoing rule of non-intercourse may be mentioned the use of flags of truce, entering into armistices, cartels, or other conventions, and special communications respecting the exchange of prisoners of war. A more distinctive exception is the licensing of trade between belligerents. During the Civil War, Congress authorized such licenses to be granted in special cases by the President (not by military commanders), and Congress later authorized the Treasury Department to make purchases of products from insurrectionary States. SECTION V General Principles Governing the Conduct of War (As specially applicable to enemies in arms) Paragraph War waged against the state as a belligerent only, and not against individuals 39 Operations of war carried on only by legitimate forces of the state 40 Authorized weapons and means of warfare 41 42 Treatment of prisoners of war 43 Punishment of persons guilty of violations of the laws of war---- 44 39. WAR WAGED AGAINST THE STATE AS A BELLIGERENT ONLY, AND NOT AGAINST INDIVIDUALS.—α. Except where THE LAWS OF WAR 43 unavoidable in the course of legitimate operations, private individuals and non-combatants are not to be involved in injury to life, person, or property. b. Life and person.-(1) The laws of war justify the killing or disabling of the members of one army by those of a hostile army, in battle or hostile operations, but, except as may be incidentally unavoidable in the armed contests of war, it is a crime to kill or commit violence against noncombatants and private individuals not in arms, including women and children, the sick, persons taken prisoner or surrendering in good faith, surgeons, assistants and employees charged with the care and transport of the wounded on the field and attendance upon them in field ambulances or hospitals, and inhabitants of the country who, in good faith, bring aid to the wounded in the field or assist in their care. (See par. 12, Rules of Land Warfare.) (2) Camp-followers, though they may be taken prisoner, are to be treated as non-combatants so long as they abstain entirely from offensive acts. (3) Sick or wounded officers or soldiers of the enemy taken in the field or in hospital are prisoners of war and are entitled to receive the same treatment as members of the capturing army similarly disabled. c. Property (1) Formerly all property of the enemy, public or private, whether taken in battle or seized otherwise during the war, became the absolute property of the capturing or appropriating belligerent. This no longer applies to private property, or to lands or other real property belonging to the state unless the state be destroyed and cease to exist. It is still true, however, as to other public property, such as funds, money-securities, munitions, supplies, and means of transportation. The same rule extends to, and permits the destruction at will of, factories, mills, foundaries, warehouses, depots, offices, or other buildings in which munitions of the enemy may be manufactured or stored; but all public institutions of a civil character, such as capitols, statehouses, buildings of the departments of the government, courthouses, churches, colleges, schools, libraries, hospitals, asylums, museums, col |