Employment and punishment of spies.

768. It is lawful to employ spies, without corrupting public or military officers'; but a spy is punishable with death if captured while acting as such,' or in going or returning.

1 Fioré, Nouveau Droit Intern., v. 2, p. 283.

2 The act of Congress of the United States, of March 3, 1863, § 38, punishes with death, all persons found in time of war, lurking or acting as spies, in or about any of the fortifications, posts, quarters or encampments of any of the armies of the United States, or elsewhere.

Lieber, (Instructions, ¶ 83,) says, that a scout, that is a person who with disguise or other deception lurks within or about the lines of the enemy to obtain information,-is punishable with death.

But it seems that one who lurks without the lines should not be punished for that alone.

A successful spy or war-traitor safely returned to his own army and afterwards captured as an enemy, is not subject to punishment for his acts as a spy or war-traitor, but he may be held in closer custody as a dangerous person.

Guides.

769. A belligerent may compel any inhabitant to serve as guide or pilot; and one who serves his own nation as guide, or who by compulsion serves the enemy as guide, is not punishable therefor.

Lieber's Instructions, ¶¶ 93–95; Bluntschli, Droit Intern. Codifié, 634, 635.

If a citizen of a hostile and invaded district voluntarily serve as a guide to the enemy, or offer to do so, he is deemed a war-traitor, and may be punished with death.

A citizen serving voluntarily as a guide against his own country commits treason, and may be dealt with according to the law of his country.

Punishment of guides.

770. Guides or pilots who intentionally mislead, are punishable with death.

Lieber's Instructions, ¶97; Bluntschli, Droit International Codifié, $ 636.

Solicitation of desertion unlawful.

771. It is unlawful to solicit desertion from military

duty; but, except during a truce or armistice,' deserters may be received and enlisted into service.

Fioré, Nouveau Droit Intern., v. 2, p. 282.

12 Wildman's International Law, p. 27; citing Grotius, III., 21, viii Puffendorf, VIII., 7, xi.

Enlistment of deserters no protection from punish

ment.

772. A deserter who enlists with the enemy is not thereby protected from punishment according to the military law of the nation whose service he deserted, if he fall into its power again.

Lieber's Instructions,

48; Woolsey's International Law, § 128, p. 220.

ARTICLE 773. Truce" and "armistice" defined.

774. Authority to make a truce.

775. Authority to make armistice.

776. Publication of truce.

777. Interpretation.

778. Effect of armistice or truce.

779. Enforcing.

780. Expiration.

781. Unauthorized breach.

782. Recommencing hostilities.

783. Flags of truce.

784. Effect of capitulation.

"Truce" and "armistice" defined.

773. The term "truce," as used in this Code, means a suspension of hostilities as to a part of the forces on either side, or as to one or more places.

The term "armistice" means a suspension of all hostilities between the belligerents.

Halleck, (Intern. Law and Laws of War, p. 654,) and Bluntschli, (Droit Intern. Codifié, § 687, 689,) distinguish between a suspension of arms, as being a temporary and local cessation of hostilities by a detachment of

troops, and a truce, as a suspension of hostilities for a considerable length of time, and for a general purpose.

Authority to make a truce.

774. A truce may be concluded between the commanders of the belligerent forces respectively, extending to their own commands, without special authority.

Authority to make armistice.

775. An armistice can be concluded only by agreement of the governments of the respective nations.

In the exercise of a general implied power incidental to their official stations, generals and admirals may suspend or limit the exercise of hostilities within the sphere of their respective military and naval commands, by means of special licenses to trade, of cartels for the exchange of prisoners, of truces for the suspension of arms, or capitulations for the surrender of a fortress, city or province. These conventions do not, in general, require the ratification of the supreme power of the State, unless such ratification be expressly reserved in the act itself. Lawrence's Wheaton, Elem. of Intern. Law, p. 442, § 3; Dana's Wheaton, § 254, citing Martens, Précis, liv. II., ch. 2. §§ 49, 51, 65; Heffter, Droit International, 87; Grotius, de Jure Belli ac Pacis, lib. III., cap. 22, §§ 6–8; Vattel, Droit des Gens, liv. II., ch. 14, § 207.

The conclusion of a general armistice, by the general or admiral com manding in chief the military or naval forces of the State, applicable to all hostilities in every place, and to endure for a long or indefinite period, requires either the previous special authority of the superior power of the State, or a subsequent ratification by such power. Lawrence's Wheaton, p. 685, § 19; Dana's Wheaton, § 401, citing 1 Kent's Commentaries, 59; see Halleck, Intern. Law & Laws of War, p. 655; Executive Documents, 31st Cong., No. 17, p. 601; Klüber, Droit International, § 277, 278; Bluntschli, Droit Intern. Codifié, § 688, 689. This amounts in effect to a temporary peace, except that it leaves undecided the controversy out of which the war originated.

Such acts or agreements, when made without authority, or exceeding the limits of the authority under which they purport to be made, are called sponsions. These must be confirmed by express or tacit ratification. Lawrence's Wheaton, p. 442, § 4 ; Dana's Wheaton, § 255.

Publication of truce.

776. A truce or armistice binds the principals from the time of making the same, but no others until it has been published. Persons ignorantly violating it are not responsible civilly or criminally, but the principal

whose duty it was to publish it is bound to make compensation to the party injured.

2 Wildman's International Law, 28.

To prevent the difficulties and damage that might arise from acts committed in ignorance of a truce, it is usual to fix a prospective period for the cessation of hostilities, with reference to distance and the situation of places. Lawrence's Wheaton, Elem. of Intern. Law, p. 686, § 21; Dana's Wheaton, § 402; 1 Kent's Commentaries, p. 160; citing Vattel Droit des Gens, bk. 3, c. 15, 239, 244.

Interpretation.

777. Where the language of a truce or armistice is ambiguous, that construction is to be preferred which extends the benefits thereof.

2 Wildman's Intern. Law, 27; citing Grotius, de Jure Belli ac Pacis, III., 21, 4; Vattel, Droit des Gens, III., § 244.

Effect of truce or armistice.

778. Unless the terms of a truce or armistice indicate a different intention of the parties, the following rules apply:

1. It takes effect from the moment it is agreed on ;' 2. Neither party, during its continuance, can do any act directly injurious to the other;"

3. Neither party can take advantage of the cessation of hostilities to gain a different position, or to threaten or strengthen a besieged place by works or military supplies, or to do any other act which could not safely be done in the midst of hostilities; but all things are to remain as they were in the places contested, and of which the possession was disputed at the moment of concluding the truce or armistice; and,

4. Subject to the foregoing restrictions, either party may continue general active preparations for war, by constructing or repairing fortifications, raising troops and gathering supplies.

1 Fior? Nouveau Droit Intern., v. 2, p. 356.

21 Kent's Commentaries, pp. 160, 161; Vattel, Droit des Gens, liv. III., ch. 16, § 245-251. Bluntschli, (Droit Intern. Codifié, § 692,) says, that a

belligerent may take possession of places which the enemy has abandoned, but not those which he accidentally omits to occupy or guard.

It is lawful during a truce, unless its terms forbid, to withdraw forces or collect reinforcements, but not to advance or occupy unguarded positions, or receive deserters. 2 Wildman's Intern. Law, 27.

It is obvious that the contracting parties may, by express compact, derogate in any respect from these general conditions. For a full treatment of this subject in detail, see Halleck, Intern. Law and Laws of War, pp. 657–660 ; Phillimore's Intern. Law, III., §§ 117, 118, 197-8; 1 Kent's Commentaries, 16, 180; Heffter, Europ. Volker., §§ 142–3; Marten's Précis du Droit des Gens, §§ 293-4; Wildman's Intern. Law, II., 27. See also Lieber's Instructions for the Govern. of Armies of United States, 135147; Bluntschli, Droit Intern. Codifié, § 691.

The computation of time is regulated by Article 994

Enforcing.

779. Any party to a truce or armistice may interfere to prevent any other party from doing any act in violation thereof.

The hostilities it seems must be confined to what is necessary for such prevention, unless the acts are a breach of conditions which terminate the truce. Halleck, Intern. Law and Laws of War, p. 658.

Expiration.

780. A truce or armistice is terminated, either,

1. By the expiration of the time limited by its terms; or,

2. If no time be limited, then upon the expiration of due notice given to either party by the other to terminate it at a specified time; or,

3. By a breach of its stipulations, expressed to be conditions' thereof.

1 Halleck, Intern. Law and Laws of War, p. 658. Wildman, (Intern. Law, v. 2, p. 27, citing Grotius, de Jure Belli ac Pacis, III., 21, XI.,) says, that the obligation of a truce ceases if violated by the other party, for the obligation is conditional.

When a penalty is annexed to a violation an option is given, and if the penalty is demanded and paid the truce continues. 2 Wildman's Intern. Law, 28.

Unauthorized breach.

781. A truce or armistice is not terminated by acts