"Almost universally the higher officers have so borne themselves as to supply this necessary check; and with but few exceptions the officers and soldiers of the army have shown wonderful kindness and forbearance in dealing with their foes. But there have been exceptions; there. have been instances of the use of torture and of improper heartlessness in warfare on the part of individuals or small detachments.

"In the recent campaign ordered by General Smith, the shooting of the native bearers by the orders of Major Waller was an act which sullied the American name, and can be but partly excused because of Major Waller's mental condition at the time, this mental condition being due to the fearful hardship and suffering which he had undergone in his campaign. It is impossible to tell exactly how much influence language like that used by General Smith may have had in preparing the minds of those under him for the commission of the deeds which we regret. Loose and violent talk by an officer of high rank is always likely to excite to wrongdoing those among his subordinates whose wills are weak or whose passions are strong.

"General Smith has behind him a long career distinguished for gallantry and on the whole for good conduct. Taken in the full, his work has been such as to reflect credit upon the American Army, and therefore upon the nation; and it is deeply to be regretted that he should have so acted in this instance as to interfere with his further usefulness in the Army. I hereby direct that he be retired from the active list."

The foregoing order was accompanied with a report by Mr. Root, Secretary of War. In this report Mr. Root found as a fact that General Smith's oral instructions "were not taken literally and were not followed," and that "no women or children or helpless persons or noncombatants or prisoners were put to death in pursuance of them." He said:

"An examination of the evidence has satisfied me that the conviction was just, and that the reasons stated for the very light sentence imposed are sustained by the facts. General Smith, in his conversation with Major Waller was guilty of intemperate, inconsiderate, and violent expressions, which, if accepted literally, would grossly violate the humane rules governing American armies in the field, and if followed would have brought lasting disgrace upon the military service of the United States. Fortunately, they were not taken literally and were not followed. No women or children or helpless persons or noncombatants or prisoners were put to death in pursuance of them.

"An examination of the records and proceedings upon the trial of Major Waller, which immediately preceded that of General Smith, shows that the instructions in question bore no relation to the acts

for which Major Waller was tried, and were not alleged by him as justification for those acts. Major Waller was tried for causing certain natives, who had acted as bearers or guides of one of his expeditions, to be put to death for treachery without proper trials; and he defended his action, not upon the ground of any orders received from General Smith, but upon the ground that as commanding officer he was justified by the laws of war.

"General Smith's written and printed orders, and the actual conduct of military operations in Samar, were justified by the history and conditions of the warfare with the cruel and treacherous savages who inhabited the island, and their entire disregard of the laws of war, were wholly within the limitations of General Orders, No. 100, of 1863, and were sustained by precedents of the highest authority. Thus, in 1779, Washington ordered General Sullivan in the campaign against the Six Nations to seek the total destruction and devastation of their settlements. He wrote, 'But you will not by any means listen to overtures of peace before the total ruin of their settlement is effected. . . . Our future security will be in their inability to injure us, the distance to which they are driven, and in the terror with which the severity of the chastisement they receive will inspire them.'

"The Fort Phil Kearny massacre in 1866, for the base treachery, revolting cruelty, and the conditions of serious danger which followed it did not approach the massacre at Balangiga in Samar in September. 1901. There the natives had been treated with kindness and confidence, liberty and self-government had been given to them. Captain Connell, the American commander, was of the same faith and had been worshiping in the same church with them. With all the assurance of friendship our men were seated at their meal unarmed among an apparently peaceful and friendly community, when they were set upon from behind and butchered and their bodies when found by their comrades the next day had been mutilated and treated with indescribable indignities. Yet there was no such severity by American soldiers in Samar as General Sherman proposed toward the Sioux after Fort Phil Kearny.

"It is due, however, to the good sense and self-restraint of General Smith's subordinates, and their regard for the laws of war, rather than to his own self-control and judgment, that his intemperate and unjustifiable verbal instructions were not followed, and that he is relieved from the indelible stain which would have resulted from a literal compliance with them.

"It is the duty of a general officer whose age and experience have brought him to high command not to incite his subordinates to acts of lawless violence, but to so explain to them the application of the laws of war and the limitations upon their conduct as to prevent

transgressions upon their part and supplement their comparative inexperience by his wise control. In this General Smith has signally failed, and for this he has been justly convicted. Although the sentence imposed is exceedingly light, it carries with it a condemnation which, for an officer of his rank and age, is really severe punishment. "For this reason and for the further reason that General Smith has served his country long and faithfully, has exhibited high courage and good conduct in many battles, has been seriously wounded in the civil war and in the war with Spain, and is about concluding a long and honorable career as a faithful and loyal servant of his country, I recommend that the mild sentence imposed be confirmed. "Should you approve the findings and sentence of the court in accordance with this recommendation, I feel bound to say, further, that in view of the findings and sentence and of the evident infirmities which have made it possible that the facts found should exist, it is not longer for the interest of the service that General Smith should continue to exercise the command of his rank. His usefulness as an example, guide, and controlling influence for the junior officers of the Army is at an end; and as he is already upward of sixty-two years of age, I recommend that you exercise the discretion vested in you by law and now retire him from active service."

Moore's Digest, vol. VII, pp. 187-190.

Barron v. Baltimore, 7 Peters, 249.-The Court said that to grant letters of marque and reprisal would lead directly to war, the power of declaring which is expressly given to Congress.

CARTELS.

Cartel ships.

But cartel Ships are not allowed to abuse their privilege; the sacred character which is the cause of it must be religiously maintained, and their employment must be wholly unconnected with commercial or other objects. Therefore Cartel Ships have no right to trade or take in a cargo; and the doing so subjects, strictly speaking, the vessel, and always the cargo, to confiscation.

But it has been holden that a Cartel appointed in time of peace, but in contemplation of War, which, in accordance with the stipulations of the Cartel contract, took on board a cargo at an intermediate port after the breaking out of hostilities, had not forfeited her privileges of a Cartel thereby; and restitution of a ship and cargo was accordingly decreed, save as to some few articles subsequently taken on board, and as to which no proof of property was adduced.

A ship going to be employed as a Cartel Ship is not protected by mere intention on her way from one port to another of her own country, for the purpose of taking on herself the character when she arrives at the latter port. If such a necessity occurs, it is proper to apply to the Commissary of Prisoners in the enemy's country for a pass.

Lastly, it is to be remembered that persons put on board a Cartel Ship with their own consent by the Government of the enemy, to be carried to their own country, are bound to do no act of hostility. Therefore, a capture made by such persons of a vessel of their own country from the enemy, is not a recapture in contemplation of law; it gives them no title to salvage, and confers on the former owner no title to claim the vessel; and property so recovered has been decreed to be given up to the disposal of the Crown.

Phillimore, vol. III, pp. 182, 183.

Cartel ships.

The same interdiction of trade applies to ships of truce, or cartel ships, which are a species of navigation, intended for the recovery of the liberty of prisoners of war. Such a special and limited intercourse is dictated by policy and humanity, and it is indispensable that it be conducted with the most exact and exclusive attention to the original purpose, as being the only condition upon which the intercourse "an be tolerated. All trade, therefore, by means of such vessels is unlawful, without the express consent of both the governments

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concerned. It is equally illegal for an ally of one of the belligerents, and who carries on the war conjointly, to have any commerce with the

enemy.

Kent, vol. I., p. 83; The Venus, 4 C. Rob. 55; The Carolina, 6 C. Rob. 336.

A cartel is an agreement between belligerents for the exchange or ransom of prisoners of war. The actual existence of a war is not essentially necessary to give effect to cartels, but it is sufficient if they are entered into prospectively and in expectation of approaching hostilities; for the occasions for them may just as naturally arise from a view of approaching events, and parties may contract to guard against the consequence of hostilities which they may foresee. Both belligerents are bound to faithfully observe such compacts, and a cartel party sent under a flag of truce to carry into execution the provisions of a cartel is equally under the protection of both. "Good faith and humanity," says Wheaton, "ought to preside over the execution of these compacts, which are designed to mitigate the evils of war, without defeating its legitimate purposes. By the modern usages of nations, commissaries are permitted to reside in the respective belligerent countries, to negotiate and carry into effect the arrangements necessary for this object. Breach of good faith in these transactions can be punished only by withholding from the party guilty of such violation the advantages stipulated by the cartel; or, in cases which may be supposed to warrant such a resort, by reprisals or vindictive retaliation." In the United States such compacts are not deemed treaties in the sense of the Constitution; a cartel for the exchange of prisoners, between the United States and Great Britain, in 1813, was ratified by the American Secretary of State (May 14).

Halleck, pp. 666, 667; Wheaton, pt. 4, ch. 2, sec. 3.

Cartel ships.

A cartel ship is a vessel commissioned for the exchange or ransom of prisoners of war, or to carry proposals from one belligerent to the other, under a flag of truce. Such commission and flag are considered to throw over the vessel, and the persons engaged in her navigation, the mantle of peace; she is, pro hoc vice, a neutral licensed vessel, and her crew are also neutrals; and so far as relates to the particular service in which she is employed, she is under the protection of both belligerents. But she can carry no cargo, and no ammunition or implements of war, except a single gun for firing signals. This is regarded as a species of navigation which, on every consideration of humanity and policy, should be conducted with the strictest regard to the original purpose, and to the rules which are built upon it, since, if this mode of intercourse be broken off, it will be followed by calamitous results to individuals of both belligerents. It is, therefore, said by