their ancient sovereign are dissolved, but their relations to each other and their rights of property remain undisturbed.' One change only is effected, and that is, that one sovereign takes the place of the other. In a civil war sovereigns are not changed, unless the rebellion is successful." Argument in McCardle Case, Forsyth's Cases and Opinions in Constitutional Law, pp. 491, 519. Effect of reconquest on civil and political rights. 733. When a belligerent regains and maintains possession of territory taken from his control during war: 1. All the acts of political administration done by order of the invader, and all modifications made in the constitution and the political relations of the people, unless made by the will and consent of the nation, cease to be in force ;' 2. All executed transactions, whether transfers of property, judgments rendered, or other acts, if consistent with the organic law of the nation, and lawful at the time when they took place, remain valid. 1 Fioré, Nouveau Droit International, v. 2, p. 352. 2 Fioré says, these transactions are not valid by law, but ought to be confirmed by the sovereign. Ib. And see Bluntschli, Droit Intern. Codifié, § 731. The exception in case of an expulsion of the enemy by a third power, in which case the authority of such power is held to some extent paramount, is not here recognized. See Bluntschli, § 729. As to acts of courts of an insurgent power, see Hickman v. Jones, 9 Wallace's U. S. Supr. Ct. Rep., 197. TITLE XXXIII. CHAPTER LVII. LVIII. LIX. HOSTILITIES. Who may wage hostilities. Against whom hostilities may be waged. LX. Truce and armistice. LXI. Medical service. CHAPTER LXIV. Hostilities against property. LXVI. Visitation, search and capture. LXVII. LXVIII. Blockade. LXIX. Effect of a state of war on obligations of LXX. nations and their members. Effect of a state of war upon intercourse. CHAPTER LVII. WHO MAY WAGE HOSTILITIES. ARTICLE 734, 735. Authority to commit hostilities. 736. Persons impressed with military character. 738. Compulsory service. 739. Savage allies. 740. Defensive hostilities. 741. Privateering abolished. 742. Punishment of privateering. 743. Pirates and brigands. Authority to commit hostilities. 2 734. All acts of hostility are unlawful,' except when committed under authority of a belligerent, or in selfdefense. 1 Talbot v. Jansen, 3 Dallas, U. S. Supr. Ct. Rep., 133, 160. An alien, a native of a State at peace with Great Britain, and not in the service of any State at war with that government, who levies war against it within its dominions, is deemed guilty of treason, although he enters it in a hostile manner. Forsyth's Cases and Opinions in Constitutional Law, p. 199. The authority is usually that of the nation of which the individual is a member; but the principle includes the authority of any nation, as in the case of mercenaries, or persons of one nation, enlisting in the military service of another, against a third.. War should be regarded as subsisting between nations, not individuals. Bluntschli, Droit Intern. Codifié, § 530, &c. Puffendorf, (bk. 8, ch. 6, § 21,) observes that it is “a part of the war to appoint what persons are to act in a hostile manner against the enemy, and how far; and, in consequence, no private person hath power to make devastation in an enemy's country, or to carry off spoil or plunder, without permission from his sovereign; . . . for to be a soldier, and to act offensively in a hostile manner, a man must be commissioned by public authority." And see Cases and Opin. in Const. Law, by Forsyth, p. 479. War is waged between governments by persons whom they authorize, and is not waged against the passive inhabitants of a country. Woolsey's International Law, § 125, p. 214. Portalis, in his speech at the installation of the council of prizes, (see Heffter, § 119,) said. “The right of war is founded on this, that a people, in the interests of self-conservation, or for the sake of self-defense, will, can or ought to use force against another people. It is the relation of things, and not of persons, which constitutes war; it is the relation of State to State, and not of individual to individual. Between two or more belligerent nations, the private persons of which these nations consist are enemies only by accident; they are not such as men, they are not even as citizens, they are such solely as soldiers." 66 To the same effect are Talleyrand's words in a dispatch to Napoleon, of November 20, 1806, (see Woolsey's Intern. Law, § 130, note, p. 225 *) Three centuries of civilization have given to Europe a law of nations, for which, according to the expression of an illustrious writer, human nature cannot be sufficiently grateful. This law is founded on the prin ciple, that nations ought to do to one another in peace, the most good, and in war, the least evil possible. "According to the maxim that war is not a relation between a man and another, but between State and State, in which private persons are only accidental enemies, not such as men, nor even as members or subjects of the State, but simply as its defenders, the law of nations does not allow that the rights of war, aird of conquest thence derived, should be applied to peaceable, unarmed citizens, to private dwellings and properties, to the merchandise of commerce, to the magazines which contain it, to the vehicles which transport it, to unarïned ships which convey it on streams and seas; in a word, to the person and the goods of private individuals. “This law of war, born of civilization, has favored its progress. It is to this that Europe must ascribe the maintenance and increase of her prosperity, even in the midst of the frequent wars which have divided her." The same. 735. Subject to article 737, no persons other than those impressed with a military character may lawfully wage hostilities, except in self-defense. Halleck, Int. Law and Laws of War, p. 386; Vattel, Droit des Gens b. 3, ch. 15, § 224; and Id., ch. 5, § 70; 1 Gallison's U. S. Circ. Ct. Rep., 563; Lawrence's Wheaton, Elements of Intern. Law, pp. 626, 627, pt. iv. ch. ii., 8, 9; Dana's Wheaton, §§ 356, 357. Halleck, (above,) says, that the hostile acts of bands of men, self-organized and self-controlled, are not belligerent acts, but crimes. There must be, as stated in Article 734, the authority of a power capable of making war, to justify any person in committing offensive hostilities. Persons impressed with military character. 736. The following persons and no others are deemed to be impressed with the military character: 1. Those who constitute a part of the military' forces of the nation; and, 2. Those who are connected with the operations thereof, by the express authority of the nation." 2 Lawrence's Wheaton, Elem. of Intern. Law, p. 627, pt. iv., ch. ii., $8; Dana's Wheaton, 356; Bluntschli, Droit Intern. Codifié, § 569. 3 Wheaton, as above. This will include subsidiary forces; camp followers, &c. In modern warfare partisan and guerrilla bands are regarded as outlaws, and may be punished by a belligerent as robbers and murderers. Halleck, Int. Law and Laws of War, 386, 387; Heffter, Droit International, 126; 3 Phillimore's Intern. Law, § 96; Lieber's Instructions for the Government of Armies of the United States, section iv. But if employed by the nation, they become part of its forces. Halleck, p. 386, 8. Fiore, on this point says that the army, which may consist of regulars, volunteers, mercenaries, troops of allies, &c., must be organized, disciplined and subjected to the command of the public authority. Fioré, Nouveau Droit International, v. 2, p. 277. As to the status of franc-tireurs during the Franco-German war, 1870, Count Bismarck declared to the French government, that "only men who can be recognized within gunshot, as soldiers, shall be considered and treated as such," and "that all those who, not being on all occasions and at a proper distance recognizable as soldiers, may kill or wound any Prussians, shall be tried by court-martial." Foreign Relations of the United States, 1870, p. 142. Temporary want of authority. 2 737. Inhabitants of a country invaded, who spontaneously unite in arming to oppose invasion,' or who, under military organization, and for political reasons, without motives of private gain, take part in hostilities existing between belligerents," are not to be treated as criminals, unless after being required by the enemy to lay down their arms or to join the regular military forces within a reasonable time, they fail to do so. 1 Halleck, (Int. Law and Laws of War, p. 388,) says, the proper distinction in relation to inhabitants rising en masse, was made by Wellington, in his invasion of the South of France, (1814.) He required the peasants engaged in partisan warfare to take arms openly and join Soult, or stay peaceably at home. 2 Persons waging offensive hostilities on land, without express authority of a belligerent, should be treated as criminals if they act without military organization, whatever the circumstances or motives. 3 Bluntschli, (Droit International Codifié, § 570, and note,) inclines to the opinion that an unauthorized corps, which, believing they have a just cause, adopt a military organization, and fight for a political end, are to be treated as lawful enemies, not criminals: and he instances the corps of Garibaldi, in the Italian wars of 1859 and 1866, and in the expeditions of 1860 and 1867. The above Article will allow this, subject to the right of the enemy to require them to join the forces. Lieber, (Instructions, ¶ 85,) lays down a stricter rule. He says, that "war-rebels are persons within an occupied territory who rise in arms against the occupying or conquering army, or against the authorities established by the same. If captured, they may suffer death, whether they rise singly, in small or large bands, and whether called upon to do so by their own, but expelled, government or not. They are not prisoners of war; nor are they, if discovered and secured before their conspiracy has matured to an actual rising, or to armed violence.” Compulsory service. 738. Except as provided in article 358,' a nation cannot exact military service from any persons but its own members. 1 The reference is to the Article in the BOOK on PEACE, which regulates the obligation of military service on the part of foreigners. The inhabitants of a conquered territory are not deemed members of the victorious nation, within this Article, except when the latter, after complete conquest, has proclaimed its intention and manifested its power to hold and annex such territory. Lieber's Instructions, ¶¶ 23, 93; Bluntschli, Droit International Codifié, § 576. See Part IX., concerning THE TERMINATION OF WAR. Savage allies. 739. The employment, against a civilized enemy, of savage allies, who are not subjected to the rules of war, contained in this Code, and to the military law of the employing power, is unlawful. This seems to be the principle recognized on this subject. Dana, (Wheaton, Elem. of Intern. Law, § 343, note 166,) says, that the |