to join in the war, without regard to its justice or injustice? Some publicists have laid down the general rule, that where one of the allies has guaranteed to the other certain specified rights or possessions, which are taken away or seized by a third power, this third power places itself in a position of hostility toward both of the contracting parties. In this case, it is said, the guaranteeing party cannot refuse to succor his ally. Here his duty is plain and indisputable, and if he should refuse to take part in the war, he is justly chargeable with a breach of the alliance. The casus foederis takes place, it is said, as soon as the rights or possessions so guaranteed are seized or encroched upon. The agreement, being for the security of a specific right, or the possession of a particular territory, it is special, and the covenant cannot be evaded or avoided by any general plea of the injustice of the war. Others say that treaties of guarantee are of the nature of a defensive alliance; and, consequently, that even where territories are guaranteed, the guarantee does not extend to wars provoked by the aggression of the party guaranteed. If, therefore, the war be manifestly unjust on the part of the ally so guaranteed, the casus foederis does not take place, and the stipulation is not binding. This view is consonant with general principles; for if the war be morally wrong on the part of one ally, he cannot reasonably demand the auxilliary strength of his co-ally to assist him in its prosecution. Again, in the case of the guarantee of a treaty, it is said that the guarantee is not only not obliged, but is not even authorized to interfere to compel its performance, unless required to do so by a party guaranteed, because the contracting parties are at liberty to vary its stipulations, or dispense altogether with their performance. It follows, therefore, that a party to a treaty of guarantee is not necessarily a party to a war undertaken by his co-ally, even though it be in defense of the thing guaranteed. (Vattel, Droit des Gens, liv. 3, ch. 6, § 91; Wheaton, Elem. Int. Law, pt. 3, ch. 2, §§ 14, 15, Garden, De Diplomatie, liv. 6, sec. 2, § 1; Bello, Derecho Internacional, pt. 2, cap. 9, § 1; Heffter, Droit International, §§ 115-117; Wildman, Int. Law, vol. 2, p. 169.)

§ 18. Conflicts not unfrequently occur in warlike alliances. In the case of an alliance for war, made toward and against

all, with the reservation of allies, this exception is to be understood to include present allies only, and not to extend to any subsequent treaty stipulations with other powers. Vattel supposes this case: "Three powers have entered into a treaty of defensive alliance; two of them quarrel and make war on each other; what shall the third do? The treaty does not bind it to assist either the one or the other. For it would be absurd to say that it was promised assistance to each against the other, or to one of the two to the prejudice of the other. All that is incumbent on it, is, to employ its good offices for reconciling its allies; and if such mediation fail, it remains free to assist the one which shall appear to have justice on its side." The latter part of this quotation should, perhaps, be adopted only with certain restrictions. If the alliances are such as to leave the third party in the position of a neutral, and exempt him from all obligations to assist either party, he cannot be considered at liberty to assist the one whose cause he may deem just. This fact alone would not constitute a justifiable cause of war. Moreover, as a neutral he is bound to treat both the belligerents as having justice on their side. What Vattel probably means to say is, that the third party is at liberty, so far as his alliances are concerned, to side with the belligerent whose cause he deems just. (Vattel, Droit des Gens, liv. 3, ch. 6, § 63; Bynkershoek, Quaest. Jur. Pub., lib. 1, cap. 9; Bello, Derecho Internacional, pt. 2, ch. 9, § 1; De Felice, Droit de la Nat. et des Gens, tome 2, lec. 28.)

§ 19. A warlike association is where the alliance is of such an intimate and perfect character as to form a union of interests; where each of the parties is bound to act with his whole force, and all are alike principals in the war at its commencement, or become so during its progress. "Every associate of my enemy," says Vattel, "is indeed himself my enemy; it matters little whether any one makes war on me directly, and in his own name, or under the auspices of another; the same rights which war gives me against my principal enemy, it also gives me against all his associates. This results directly from my right of security and of selfdefense, for I am equally attacked by the one and the other. But the question is, to know who are lawfully to be

accounted my enemy's associates, united against me in a war?" (Vattel, Droit des Gens, liv. 3, ch. 6, § 95; Wolfius, Jus. Gentium, §§ 730-736; Martens, Precis du Droit des Gens, § 300; Garden, De Diplomatie, liv. 6, sec. 2, § 3; Riquelme, Derecho Pub. Int., lib. 1, tit. 1, cap. 12.)

§ 20. Vattel discusses at some length the question, who are, and who are not to be regarded as such associates in the war? and makes the following distinctions. He regards as associates, first, those who make common cause with the enemy, although not appearing as principals; second, those who assist the enemy without being bound to do so by any treaty; third, those who, under the obligations of an offensive alliance, assist the principal in carrying on the war; fourth, those who make defensive alliance with the enemy after the commencement of the war, or on the certain prospect of its declaration, or with special reference to the defense of the enemy against the actual opposing belligerent; and fifth, those who have formed with the enemy, even before hostilities have commenced, a real league or society of war. All such are associates in the war. But if the defensive alliance is general in its character, leaving it doubtful when the casus foederis will take place, or if it has not been made particularly against me, nor concluded at a time when I was openly preparing for war or had already begun it, or if the allies have only stipulated in it, that each of them shall furnish a stated succor to him who shall be first attacked, such allies are not necessarily associates in the war. If auxilliaries are furnished to my enemy, they are enemies, but the nation that furnishes them are not such of necessity. By attacking such nations for that reason, says Vattel, “I should increase the number of my enemies, and instead of a slender succor which they furnished against me, should draw on myself the united force of those nations." (Vattel, Droit des Gens, liv. 3, ch. 6, §§ 95-98; Wheaton, Elem. Int. Law, pt. 3, ch. 2, §15; Bynkershoek, Quaest. Jur. Pub., lib. 1, cap. 9; Bello, Derecho Internacional, pt. 2, ch. 9, §1.)

§ 21. As a general rule, it is not necessary to make a formal declaration of war against the associates of the enemy before treating them as belligerents. The nature of their

obligations, or the character of their acts, makes them public enemies, and puts them in the same position toward us as if they were principals in the war. Our belligerent rights against them commence, in some cases, with the war, and, in others, with their first act of hostility against us. The existence of the alliance, with the acknowledgement of its obligation, and a preparation for carrying on the war, would make them public enemies, even before they actually take part in the military operations, as was the case between France and Great Brirain in 1778. (Vattel, Droit des Gens, liv. 3, ch. 6, § 102; Bynkershoek, Quaest. Jur. Pub., lib. 1, cap. 9; Wheaton, Elem. Int. Law, pt. 3, ch. 2, § 15; Phillimore, On Int. Law, vol. 3, § 60; Heffter, Droit International, § 120.)

§ 22. But, in modern times, there are very few alliances between states which so bind them together as necessarily to make them associates in a war; it is, therefore, in general, a matter of prudence to seek to disarm the enemy's allies by treating them as friends. It is a cheap and honorable means of weaking an opponent's power, and may save the effusion of much innocent blood. The contrary course is not only impolitic on our part, but tends to prolong the war by making it more general, and by involving new elements of discord, and more complicated and conflicting interests. Neutrality may be absolvte or qualified; absolute when the neutral is bound to neither belligerent by a treaty which may affect the other, and qualified, when the execution of a treaty with one would affect the other. The relation of the United States to France and Great Britain, at the beginning of the war of 1793, is an example of such qualified neutrality. There is an obvious difference between an alliance and such neutrality, although it is sometimes difficult to draw the line of separation. This subject will be considered in another chapter. (Vattel, Droit des Gens, liv. 3, ch. 6, §§ 95102; Wheaton, Elem. Int. Law, pt. 3, ch. 2, § 15.)

CHAPTER XVIII.

RIGHTS OF WAR AS TO ENEMY'S PERSON.

CONTENTS.

1. General rights of war as to enemy's person-2. Limitation of the right to take life-83. Exemption of non-combatants-24. When the exemption ceases-85. Is limited in particular cases-86. When quarter may be refused-27. Treatment due to prisoners of war-28. Exchange and ransom-29. No positive obligation to exchange-10. Moral obligation of the state toward its own subjects-11. Release on parol-12. Conditions which may be imposed-13. Delays in effecting exchange- 14. Duties of a state to support its subjects in the hands of the enemy — 215. Duty of the captor in certain cases— -16. Historical example-17. Extent of support to be rendered-318. When each belligerent supports its own prisoners-19. May prisoners of war be put to death-820. Remarks of Vattel-21. Useless defense of a place-22. Sacking a captured town -23. Remarks of Napier-24. Fugitives and deserters found among prisoners of war-25. Rule of reciprocity-26. Limits to this rule.

§ 1. It has already been shown that war places all the subjects of one belligerent state in a hostile attitude toward all the subjects of the other belligerent; and although, in order to justify us at the tribunal of conscience and in the estimation of the world, it is necessary that we should have just cause of war, and justifiable reasons for undertaking it; yet, as the justness or unjustness of a war is usually a matter of controversy between the contending parties, and not always easy to be determined it has become an established principle,