CHAPTER XVII.

THE ENEMY AND HIS ALLIES.

CONTENTS.

1. Character of public enemies-2. Limits to hostility between public enemies-3. With regard to persons and property-4. Allies not necessarily associates in a war-25. How distinguished - 6. Hostile alliances -7. The casus foederis of an alliance-28. Offensive alliances - 9. Defensive alliances — § 10. Remarks on character and effect of such alliances - 11. General presumption in favor of cause of ally-12. Treaties of succor, if the war be unjust-13. If unable to furnish the promisei aid - 14. Subsidy and succor not necessarily causes of war- - 15. Capitulations for mercenaries-16. Remarks of Vattel on subsidy-treaties -17. Effect of treaties on guarranty - 18. Conflicting alliances- 19. A warlike association- 20. Vattel's opinion - 21. Declaration of war unnecessary against enemy's associates - 22. Policy of treating enemy's allies as friends.

§ 1. It has already been stated that a war, duly commenced and ratified, is not confined to the governments or authorities of the belligerent state, but that it makes all the subjects of the one state the legal enemies of each and every subject of the other. This hostile character results form political ties, and not from personal feelings or personal antipathies; their status is that of legal hostility, and not of personal enmity. So long as these political ties continue, or so long as the individual continues to be the citizen or subject of one

of the belligerent states, just so long does he continue in legal hostility toward all the citizens and subjects of the opposing belligerent. Public enemies are such, whatever may be their occupation, and in whatever country they may be found. The Romans had a particular term (Hostis,) to denote a public enemy, and to distinguish him from a private enemy, whom they dalled Inimicus. The distinction is a marked one, and should never be lost sight of. Private enemies have hatred and rancor in their hearts, and seek to do each other personal injury. Not so with public enemies. They do not, as individuals, seek to do each other personal harm. And even where brought into actual conflict, as armed belligerents, there is usually no personal enmity between the individuals of the contending forces. So far from this, when peace is declared, the military forces of the opposing belligerents are usually personal friends, and vie with each other in politeness and mutual kindness. (Vattel, Droit des Gens, liv. 3, ch. 5, §§ 69, 70, 71; Leiber, Political Ethics, b. 7, § 24; Massé, Droit Commercial, etc., liv. 2, tit. 1, ch. 2; Alber. Gentilis, De Jur. Bel., com. 1, in pr.; Rutherforth, Institutes, b. 2, ch. 9, § 15.)

§ 2. Moreover, there is a limit to public enmity. The law of nature gives to a belligerent nation the right to use such force as may be necessary, in order to obtain the object for which the war was undertaken. Beyond this, the use of force is unlawful; this necessity forms the limit of hostility between subjects of the belligerent states. They, therefore, have no right to take the lives of non-combatants, or of such public enemies as they can subdue by other means, nor to inflict any injuries upon them or their property, unless the same should be necessary for the object of the war. (Vattel, Droit des Gens, liv. 3, ch. 8, § 138; Wheaton, Elem. Int. Law, pt. 4, ch. 2, § 2; Rutherforth, Institutes, b. 2, ch. 9, § 15; Burlamaqui, Droit de la Nat. et des Gens, tome 5, pt. 4, ch. 6; Corum v. Blackburn, Doug. Rep., p. 644; Massé, Droit Commercial, liv. 2, tit. 1, ch. 2; De Felice, Droit de la Nat., ete., tome 2, lec. 25; Riquelme, Derecho Pub. Int., lib. 1, tit. 1, cap. 12.)

§ 3. We have already stated the general effect of a declaration of war upon the persons and property of the subjects of

an enemy found within our own territory, and, that while, by the strict rights of war, we can retain them all as prisoners or prizes, this right, by modern usage, is only applied to the military and to ships of war, mere residents, merchants, and merchant vessels, being allowed a certain time to withdraw themselves from our jurisdiction without molestation. Subjects of a neutral state, resident or domiciled in the enemy's country, are, in many respects, to be regarded as enemies; but, as they are not liable to military duty, in the proper sense of that term, they cannot be treated either as actual combatants or as enemy's subjects, who are liable to be called upon by their own state to oppose us by force. Moreover, our own subjects, resident or domiciled in the enemy's country, are, in certain matters relating to trade and the rights of maritime capture, regarded as legal enemies, but not with respect to their personal status and personal duties. Again, as belligerents are not permitted to use force against each other within neutral territory, we cannot exercise there the same rights against the person and property of an enemy as we can within our own or enemy's territory, or upon the high seas. The treatment of an enemy, therefore, depends in a measure, upon the place in which he may be found. (Burlamaqui, Droit de la Nat., etc., tome 5, pt. 4, ch. 6; Vattel, Droit des Gens, liv. 3, ch. 4, § 63; Bynkershoek, Quaest. Jur. Pub., lib. 1, ch. 7; Massé, Droit Commercial, liv. 2, tit. 1, ch. 2; Ragnenal, Droit de la Nat., etc., liv. 3, ch. 5, § 4; Bello, Derecho Internacional, pt. 2, cap. 2, § 2.)

§ 4. It has already been remarked, that we have the same rights of war against the co-allies or associates of an enemy as against the principal belligerent. It must, however, be observed that general allies are not necessarily associates in a war. The allies of our enemy, therefore, may, or may not, themselves become our enemies, according to the character of the alliance which they have formed with that enemy, the time of making it, and the circumstances under which it was entered into. We must, therefore, distinguish between the general allies of an enemy, and his associates in a war. (Hefter, Droit International, §§ 115-117; Vattel, Droit des Gens, liv. 3, ch. 6, § 95; Bynkershoek, Quaest. Jur. Pub., lib. 1, cap. 9; Wheaton, Elem Int. Law, pt. 3, ch. 2, §§ 13, 14; Bello, Derecho Internacional, pt. 2, cap. 9, § 1.)

§ 5. But the question here arises, how are we to know whether an enemy's ally is himself to be regarded as an enemy, and to be treated in the same manner as the principal belligerent? In the first place, if he has made common cause with our enemy in beginning or carrying on hostilities against us, we have toward him the same belligerent rights as toward the principle in the war, for both are equally our enemies. There is no need of proving him an enemy, for his own conduct has made him such. Again, even where there are no obligations of treaty, if he freely and voluntarily declares in favor of his ally and against us, he, of his own accord, becomes our enemy, and is to be treated in every respect as the principal. But the simple fact of there being an alliance between our enemy and other nations would not justify us in treating such nations as belligerents. (Vattel, Droit des Gens, liv. 3, ch. 6, §§ 96-98; Wheaton, Elem. Int. Law, pt. 3, ch. 2, § 14; Bello, Derecho Internacional, pt. 2, cap. 9, §1; Heffter, Droit International, §§ 115–117.)

§6. Alliances, for warlike purposes, are divided into two classes, offensive and defensive. In the former, the state unites with its ally for the purpose of jointly waging war against a third party; but in the latter, the state engages to defend its ally in case of an attack. Some alliances are both offensive and defensive; others are only defensive; but there is seldom an offensive alliance which is not also a defensive one. Some are against all opponents, and without restriction; while others are only against a particular state, and on specified conditions, with limitations and exceptions. The character of such alliances is discussed elsewhere. We shall here consider their legal effects with respect to belligerent rights and not their moral character. Warlike alliances, made at the commencement of, or during a war, are necessarily binding, for the contracting parties then know the character of the war and the exact nature of the obligations which they have assumed. Alliances, made under such circumstances, are acts of hostility which make the ally an enemy equally with the principal belligerent. It is important, however, to satisfy ourselves as to the character of such alliances, to see whether or not they are really warlike compacts which make the contracting parties also parties to the war. The alliance

between France and the English revolted colonies in North America, being made during the war of the American revolution, was very properly regarded by Great Britain as tantamount to a declaration of war on the part of France, and as justifying immediate hostilities against this ally of the revolted colonies. (Riquelme, Derecho Pub. Int., lib. 1, tit. 1, cap. 11; Heffter, Droit International, §§ 115-117; Vattel, Droit des Gens, liv. 3, ch. 6, §§ 80, 85; Bynkershoek, Quaest. Jur. Pub., lib. 1, cap. 9; Phillimore, On Int. Law, vol. 3, § 73.)

§ 7. A warlike alliance made by a third party before the war with a state, then our friend, but now our enemy, will not, as a general rule, be, of itself, a sufficient cause for commencing hostilities against such third party; for there may be good reason why he should not regard himself as bound by the obligations of the alliance. It would certainly be very impolitic, as well as improper, for us to treat as a belligerent one who may not be disposed to become our enemy. The character of the alliance, and the peculiar circumstances of the case, must serve as guides for our conduct, always keeping in mind the maxim, that it is better to have a friend than an enemy, and the rule of international law, that we are justifiable in engaging in hostilities only so far as may be necessary for our own security and the protection of our just rights. In case of alliances, made before the war, the question is, to determine whether the actual circumstances are such as were contemplated in the engagement, whether they are such as were expressly specified, or tacitly supposed, in the treaty. This is what the civilians call casus foederis, or the case of the alliance. Whatever has been promised, either expressly or tacitly, in the treaty, is due in the casus foederis. But if not so promised, it is not due. If the war is not such a case as the treaty contemplated, the ally does not become a party to it; for the casus foederis does not take place. (Vattel, Droit des Gens, liv. 3, ch. 6, § 88; Wheaton, Elem. Int. Law, pt. 3, ch. 2, § 15; Grotius, de Jur. Bel. ac Pac., liv. 2, cap. 15, § 13; Bynkershoek, Quest. Jur. Pub., lib. 1, cap. 9; Martens, Precis du Droit des Gens, § 299; Moser, Versuch, etc. b. 9, pt. 1, p. 24; Garden, De Diplomatie, liv. 7, § 1; Heffter, Droit International, § 115; Riquelme, Derecho Pub. Int., b. 1, tit. 1, cap. 11.)