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Peru, equally with Spain, has as absolute a right to decline the good offices or mediation of the United States for peace as either has to accept the same. The refusal of either would be inconclusive as an evidence of determination to resume or continue the war. It is the interest of the United States, and of all nations, that the return of peace, however it may be brought about, shall be accepted whenever it has become clearly established. Whenever the United States shall find itself obliged to decide the question whether the war still exists between Spain and Peru, or whether that war has come to an end, it will make that decision only after having carefully examined. all the pertinent facts which shall be within its reach, and after having given due consideration to such representations as shall have been made by the several parties interested."

Mr. Seward, Sec. of State, to Mr. Goñi, Spanish min., July 22, 1868, Dip.
Cor. 1868, II. 32, 34.

"I have yet to learn that a war in which the belligerents, as was the case with the late civil war, are persistent and determined, can be said to have closed until peace is conclusively established, either by treaty when the war is foreign, or when civil by proclamation of the termination of hostilities on one side and the acceptance of such proclamation on the other. The surrender of the main armies of one of the belligerents does not of itself work such termination; nor does such surrender, under the law of nations, of itself end the conqueror's right to seize and sequestrate whatever property he may find which his antagonist could use for a renewal of hostilities. The seizure of such property, and eminently so when, as in the present case, it is notoriously part of the war capital of the defeated government, is an act not merely of policy and right, but of mercy, in proportion to the extent to which the party overthrown is composed of high-spirited men who are ready to submit only when their military resources are wholly exhausted, and not until then. This, in the summer of 1865, was the condition of things in the Southern and Southwestern States of this nation. The period was one in which the maintenance of military rule and the taking into the possession of the United States of all the property capable of use as military resources of those States was essential to the permanent restoration of order, peace, and a common municipal law. This was so from the nature of things, and such was the course of public action. It is in accordance with this principle that the Supreme Court of the United States has formally decided that the late civil war terminated in the particular sections of the United States at the period designated in the proclamations of the President of the United States. (Brown r. Hiatts, 15 Wall. 177; Adger v. Alston, ibid. 555; Batesville Institute e. Kauffman, 18 Wall. 151.) And by the President's procla

mation of April 2, 1866, the insurrection which heretofore existed in the States of Georgia, South Carolina, Virginia, North Carolina, Tennessee, Alabama, Louisiana, Arkansas, Mississippi, and Florida is at an end, and is henceforth to be so regarded.' Up to and before that date the insurrection in those States was held to exist. After that date it was held to be at an end.”

Mr. Bayard, Sec. of State, to Mr. Muruaga, Span. min., Dec. 3, 1886, For.
Rel. 1887, 1015, 1019. As to termination of Indian wars, see Mr.
Evarts, Sec. of State, to Sir E. Thornton, May 27, 1879, For. Rel.
1879, 496.

See, also, The Protector, 12 Wall. 700.

XIV. CODIFICATIONS OF THE LAWS OF WAR.

§ 1164.

Various attempts have been made to codify the laws of war. Of these, one of the most celebrated is that known as General Orders, No. 100, April 24, 1863, being instructions for the government of armies of the United States in the field. This code was drafted by Dr. Francis Lieber, and was revised by a board of army officers.

The work of the Brussels Conference of 1874, although the code framed by it was not ratified by the powers, has had a lasting effect. The early literature of the laws of war is reviewed in Holland's Studies in International Law, chapter ii.

As to war, generally, see Fiore, Droit Int. Public, I. 1-145; Pillet, Les Lois Actuelles de la Guerre; Rivier, Principes du Droit des Gens. Of writers on the philosophy of war, a large proportion are Germans, who are divided into two schools, the military and the juridical. The military writers are represented by Gen. J. von Hortmann, Militärische Nothwendigkeit und Humanität, I. 878; and, in briefer form. in Rodenberg's Deutscher Rundschau, XIII. 1877, s. 111 et seq., 450 et seq.; XIV. 1878, s. 71 et seq. See, also, Gen. Carl. von Clausewitz, Vom Kriege.

The names of other military writers and their works are given in Holtzendorff's Handbuch des Völkerrechts, IV. 191.

Bluntschli's Code, and Lueder's Treatise in Holtzendorff's Handbuch are the most important writings of the juridical school.

In English, the laws of war are ably discussed by Halleck, Hall, Holland, and Westlake.

We may mention, in French, the essays of Prof. Henri Brocher, of Lausanne, in the Revue de Droit Int. IV. 1, 381; V. 321, 566.

The Government of the United States explained the fact that it was not represented at the Brussels Conference of 1874 on the ground (1) that it was its established policy to refrain from participating "in international congresses for the discussion and determination of either dynastic questions or of abstract questions of general policy," and that "the proposed convention was looked upon as one of Euro

pean states, to be held in conformity with a custom not unusual with them, but not in accordance with the habits or policy of this Government;" and (2) that, even had it been consistent with the policy of the United States to take part in the congress, the official invitation was received too late to permit the sending of a representative and the preparation of suitable instructions.

Mr. Fish, Sec. of State, to the diplomatic officers of the United States, circular, July 27, 1874, MS. Circulars, I. 666.

The programme of the Hague Conference, as embodied in the Russian circular of Dec. 30, 1898, contained the following article:

7. Révision of the declaration concerning the laws and customs of war elaborated in 1874 by the conference of Brussels, and not yet ratified."

The American delegates to The Hague were instructed to give their earnest support to "any practicable propositions" based on this article.

A convention on the subject was adopted by the conference. The American delegates, although they approved the convention, thought it best to withhold their signatures and to refer it to their Government, with the recommendation that it be submitted to the proper authorities for special examination and signed, unless such examination should disclose imperfections not apparent to the American commission. It was afterwards signed by the United States, ratified, and put into operation.

See For. Rel. 1899, 511, 512, 516.

The convention respecting the laws and customs of war on land signed at The Hague July 29, 1899, by the plenipotentiaries in the peace conference refers in its preamble to the Brussels conference of 1874. It is in reality like all other international arrangements on the same subject since that time, but a revision of the project adopted by the Brussels conference, a body whose discussions and conclusions were marked by high intelligence and great practical wisdom. The Hague convention does not purport to provide for all cases and to cover all questions that arise in the conduct of war. In this relation, however, it declares that it is not the intention of the contracting parties that the cases not provided for shall be left to the arbitrary judgment of the military commanders,” but that " until a more complete code of the laws of war is issued," the " populations and belligerent," in the cases not included in the convention, "remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity, and the requirements of the public conscience.“

For the proceedings of the Brussels Conference and correspondence relating thereto, see British Parl. Papers, Miscellaneous, No. 1 (1874), No. 2 (1874), No. 1 (1875), No. 2 (1875), No. 3 (1875).

"ARTICLE I. The High Contracting Parties shall issue instructions to their armed land forces, which shall be in conformity with the ‘Regulations respecting the Laws and Customs of War on Land' annexed to the present Convention.

"ARTICLE II. The provisions contained in the Regulations mentioned in Article I are only binding on the Contracting Powers, in case of war between two or more of them.

'These provisions shall cease to be binding from the time when, in a war between Contracting Powers, a non-Contracting Power joins one of the belligerents."

"ARTICLE IV. Non-Signatory Powers are allowed to adhere to the present Convention.

"For this purpose they must make their adhesion known to the Contracting Powers by means of a written notification, addressed to the Netherlands Government, and by it communicated to all the other Contracting Powers.

"ARTICLE V. In the event of one of the High Contracting Parties denouncing the present Convention, such denunciation would not take effect until a year after the written notification made to the Netherlands Government, and by it at once communicated to all the other Contracting Powers.

"This denunciation shall affect only the notifying Power." (Convention respecting the Laws and Customs of War on Land, The Hague, July 29, 1899, 32 Stat. II. 1808-1809.)

XV. INDIAN WARS.

§ 1165.

The question whether an Indian tribe, some of whose members have committed depredations upon the property of persons subject to the authority of the United States, was "in amity" with the United States, within the meaning of the act of March 3, 1891 (26 Stat. 851), so as to entitle the claimants to a judgment against the United States and the tribe for the value of the property, is a question of fact, depending upon whether the tribe was in the relation of actual peace with the United States, and not upon whether there was a subsisting treaty between it and the United States which had never been formally abrogated by a declaration of war by either party.

Marks v. United States, 161 U. S. 297.

The existence of hostilities and military operations constitutes an Indian war, without formal declaration by Congress or proclamation by the President.

Marks . United States, 28 Ct. Cl. 147.

Where a party of bad white men or bad Indians engage in rapine or murder, and the rest of the community or tribe do not take up arms, it is crime, not war; but where every man on the one side is ready to kill any man on the other, and military operations take the place of peaceful intercourse, amity ceases to exist, and the purpose of the statute allowing indemnity is at an end.

Dobbs v. United States, 33 Ct. Cl. 308.

The treaty of the Creek Nation with the rebel government abrogated the treaty with the United States, and the provisions in the treaty of 1866, wherein the United States reaffirmed and reassumed all obligations existing under the earlier treaty, can not be held to cover the period during which the Creeks were in rebellion.

Connor r. United States, 19 Ct. Cl. 675.

A public war, within the Constitution and the rules and articles of war, has existed with the Seminoles since the day Congress recognized their hostilities and appropriated money to suppress them.

Butler, At. Gen., 1838, 3 Op. 307.

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