Levies en masse. to this rule with regard to the so-called "Franctireurs," requesting the production of a special authorisation of the French Government from every irregular combatant they captured, failing which he was shot. But according to article 1 of the Hague Regulations this rule is now obsolete, and its place is taken by the rule that irregulars enjoy the privileges due to members of the armed forces of the belligerents, although they do not act under authorisation, provided (1) that they are commanded by a person responsible for his subordinates, (2) that they have a fixed distinctive emblem recognisable at a distance, (3) that they carry arms openly, and (4) that they conduct their operations in accordance with the laws and customs of war. It must, however, be emphasised that this rule applies only to irregulars fighting in bodies, however small. Such individuals as take up arms or commit hostile acts singly and severally are still liable to be treated as war criminals, and shot.1 § 81. It sometimes happens during war that on the approach of the enemy a belligerent calls the whole population of the country to arms and thus makes them a part, although a more or less irregular part, of his armed forces. Provided they receive some organisation and comply with the laws and usages of war, the combatants who take part in such a levy en masse organised by the State enjoy the privileges due to members of armed forces. It sometimes happens, further, during wars, that a levy en masse takes place spontaneously without organisation by a belligerent, and the question arises whether or not those who take part in such levies en masse belong to the armed forces of the belligerents, and enjoy therefore the privileges due to members 1 See below, § 254. of such forces. Article 2 of the Hague Regulations stipulates that the population of a territory not yet occupied who, on the enemy's approach, spontaneously take up arms to resist the invading enemy, without having time to organise themselves under responsible commanders and to procure fixed distinctive emblems recognisable at a distance, shall nevertheless enjoy the privileges due to armed forces, provided that they act otherwise in conformity with the laws and usages of war. But this case is totally different from a levy en masse by the population of a territory already occupied by the enemy, for the purpose of freeing the country from the invader. The quoted stipulation of the Hague Regulations does cover this case, in which, therefore, the old customary rule of International Law is valid, that those taking part in such a levy en masse, if captured, are liable to be shot.1 not Forces. § 82. As International Law grew up amongst the Barbarous States of Christendom, and as the circle of the members of the Family of Nations includes only civilised, although not necessarily Christian, States, all writers on International Law agree that in wars between themselves the members of the Family of Nations should not make use of barbarous forcesthat is, troops consisting of individuals belonging to savage tribes and barbarous races. But it can hardly be maintained that a rule of this kind has grown up in practice, nor has it been stipulated by treaties, the 1 See below, § 254. Article 85 of the American Instructions for the Government of Armies in the Field of 1863 has enacted this rule as follows: "War rebels are persons within an occupied territory who rise in arms against the occupying or conquering army, or against the authorities established Privateers. Hague Regulations overlooking this point. This being the fact, it is difficult to say whether the members of such barbarous forces, if employed in a war between members of the Family of Nations, would enjoy the privileges due to members of armed forces generally. I see no reason why they should not, provided such barbarous forces would or could comply with the laws and usages of war prevalent according to International Law. But the very fact that they are barbarians makes it probable that they could or would not do so, and then it would be unreasonable to grant them the privileges generally due to members of armed forces, and it would be necessary to treat them according to discretion. But it must be specially observed that the employment of barbarous forces must not be confounded with the enrolling of coloured individuals into the regular army and the employment of regiments consisting of disciplined coloured soldiers. There is no reason whatever why, for instance, the members of a regiment eventually formed by the United States of America out of negroes bred and educated in America, or why members of Indian regiments under English commanders, if employed in wars between members of the Family of Nations, should not enjoy the privileges due to the members of armed forces according to International Law. § 83. Formerly privateers were a generally recognised part of the armed forces of the belligerents, private vessels being commissioned through Letters of Marque by the belligerents to carry on hostilities at sea, and particularly to capture enemy merchantmen. From the fifteenth century, when privateering 1 See Martens, Essai concernant les armateurs, les prises, et surtout les reprises (1795). began to grow up, down to the eighteenth century, belligerents used to grant such Letters of Marque to private ships owned by their subjects and by the subjects of neutral States. But during the eighteenth century the practice grew up that the belligerents granted Letters of Marque to private ships of their own subjects only. However, privateering was abolished by the Declaration of Paris in 1856 as between the signatory Powers and others who joined it later on. And although privateering would still be legal as between other Powers, it will in future scarcely be made use of. In all the wars that occurred after 1856 between such Powers, Letters of Marque were not granted to private ships.2 Fleet. § 84. A case which happened in 1870, soon after Volunteer the outbreak of the Franco-German war, gave occasion for the question whether a volunteer fleet could be considered a part of the armed naval forces of a belligerent. As the North-German Confederation owned only a few men-of-war, the creation of a volunteer fleet was intended. The King of Prussia, as President of the Confederation, invited the owners of private German vessels to make them a part of the German navy under the following conditions: Every 1 Many publicists maintain that nowadays a privateer commissioned by another State than that of which he is a subject is liable to be treated as a pirate when captured. With this, how ever, I cannot agree; see above, Vol. I. § 273, Hall, § 81, and below, § 330. 2 See below, § 177. It is confidently to be hoped that the great progress made by the abolition of privateering through the Declaration of Paris will never be undone. But it is of importance to note the fact that up to the present day endeavours have been made on ship should be assessed as to her value, and 10 per cent. of such value should at once be paid in cash to the owner as a price for the charter of the ship. The owner should engage the crew himself, but the latter should become for the time of the war members of the German navy, wear the German naval uniform, and the ship should sail under the German war flag and be armed and adapted for her purpose by the German naval authorities. Should the ship be captured or destroyed by the enemy, the assessed value should be paid to her owners in full; but should it be restored after the war undamaged, the owner should retain the 10 per cent. received as charter price. All such vessels should only try to capture or destroy French menof-war, and if successful the owner should receive a price between 1,500l. and 7,500l. as premium. The French Government considered this scheme a disguised evasion of the Declaration of Paris which abolished privateering, and requested the intervention of Great Britain. The British Government brought the case before the Law Officers of the Crown, who declared the German scheme to be substantially different from the revival of privateering, and consequently the British Government refused to object to it. The scheme, however, was never put into practice.1 Now the writers on International Law differ, in spite of the opinion of the British Law Officers, as to the legality of the above scheme; but, on the other hand, they are unanimous that not every scheme for a voluntary fleet is to be rejected. Russia,2 in fact, since 1877, has possessed a voluntary fleet. France 3 has 1 See Perels, § 34; Hall, § 182; Lawrence, § 224; Boeck, No. 211; Dupuis, Nos. 81-84. 2 See Dupuis, No. 85. |