continuously to warlike avocations without intervals of the peaceful pursuits of ordinary life. They often perform valuable services to their own side by attacking convoys of arms and provisions on the way to the enemy, cutting off his communications, blowing up bridges and destroying railways in his rear, intercepting his despatches, and harassing him in the numberless ways that patriotic ingenuity can suggest and superior mobility carry out. Knowledge of the country, coolness and daring are the conditions of success in guerilla. warfare. With small means it may inflict irreparable damage upon the side against which it is directed; but those who engage in it are free from many of the restraints of more regular combatants, while at the same time their opportunities for plunder and outrage are numerous and tempting. It is easy, therefore, to understand the unfavorable opinions of partisan bands usually expressed by great military authorities. Self-interest, professional jealousy and humanity combine in urging them to advocate the entire prohibition of irregular hostilities, or their reduction to a minimum by imposing severe conditions upon any recognition of their legality. Halleck settles the question in a summary way by calling those who engage in partisan warfare robbers and murderers, and declaring that when captured they are to be treated as criminals. This is the view of a general rather than a publicist. It obtained largely in the earlier part of the eighteenth century, when the powers which kept large standing armies on foot would hardly allow the rights of combatants to militia.2 Military pride accounted for it to some extent, but it was also due to a natural and creditable reaction from the license of times before the distinction between combatants and non-combatants was drawn, and when every subject of one belligerent was free to commit acts of hostility upon every subject of the other. But in the great

cycle of wars which began with those of the French Revolu

1 International Law, Ch. XVIII., § 8.

2 Hall, International Law, § 179 and notes.

tion, the most powerful states of the European continent found good reason to value and rely upon the patriotism of their populations. Irregular troops came therefore to be regarded as permissible even by military men, who often busied themselves with the organization of the national guard and other popular levies. No further doubt was felt as to the legality of militia. It is even included in "l'armée proprement dite" by Article 2 of the military code adopted by the Institute of International Law at Oxford in 1880.1 The questions that remain concern guerilla troops and levies en masse; and with regard to them the principle that they may exist is conceded, the degree of irregularity which is permissible forming the only problem left for solution.

In the Franco-Prussian war of 1870 the French raised irregular bands of Franc-Tireurs; but the Prussians declined to recognize them as lawful combatants unless each individual member of them had been personally called out by legal authority and wore a uniform or badge irremovable and sufficient to distinguish him at a distance. At the Brussels Conference of 18742 the matter was thoroughly discussed from every point of view. The representatives of the great military powers naturally desired to keep spontaneous movements within the narrowest possible bounds, while the delegates from the secondary states, who have to rely for their defence chiefly upon the patriotism of their people, endeavored to give the widest extension to the right of resistance to an invader. In the debates the case of guerilla bands and that of levies en masse were a good deal confused; but at length the Conference came to see that there was a great difference between them, and the attempt to cover both by the same rules was abandoned. With regard to the former, the less powerful states, headed by Belgium and Switzerland, succeeded in foiling the efforts of Prussia and Russia to have it declared that irregular volunteers must be under 1 Tableau Général de L'Institut de Droit International, p. 173. 2 See § 185.

the Commander-in-Chief. Finally, the Conference adopted a compromise which fairly met the views of all parties. It agreed to accord the rights of combatants to those guerilla bands which

(a) Have at their head a person responsible for his subordinates.

(b) Wear some settled distinctive badge recognizable at a distance.

(c) Carry arms openly.

(d) Conform in their operations to the laws and customs of war.1

It is to be hoped that the concession of the first of these conditions marks the definite abandonment of the theory that members of partisan bodies must, individually and collectively, be summoned to arms by their government and connected directly with its military system. The second condition is just and reasonable, if it be not interpreted to mean that the distance must be considerable. A badge which is visible as far off as the inconspicuous uniform of modern infantry should be amply sufficient. The great point to be secured is its irremovable character. A man cannot have the slightest moral right to the privileges of a combatant, if he appears one minute as the armed defender of his country and the next as a peaceful peasant tilling his fields under the protection of the occupying army. The third condition is justified by the same consideration. The inhabitants of an invaded country must choose whether they will fight or whether they will go about their ordinary business. They cannot do both. Their position is well expressed in Article 82 of the Instructions for the Government of Armies of the United States in the Field, which declares that those who commit hostilities "with intermitting returns to their homes and avocations, or with the occasional assumption of the semblance of peaceful pursuits. . . if captured, are not enti

1 British State Papers, Miscellaneous, No. 1 (1875), pp. 252–257.

tled to the privileges of prisoners of war, but shall be treated summarily as highway robbers or pirates.' The fourth condition is demanded by humanity. Irregular soldiers who do not conform to the laws of war become mere criminals and deserve the severest punishment.

On the whole there seems every reason to be satisfied with these rules. They give sufficient scope to the spontaneous activities of patriotism, without neglecting either the claims of mercy or a reasonable consideration for the safety of the invading belligerent. The lapse of several years, and the criticisms of the leading jurists of the civilized world, have served but to bring out the general approval with which they are regarded. They were adopted with only a few alterations in form by the Institute of International Law and are embodied in the second article of its military code;1 and though they are not formally binding upon the powers who took part in the Brussels Conference, it will be very difficult for any of them in a future contest to ignore the work of their representatives. Indeed Russia in her war with Turkey of 1877-1878 ordered all her officials to observe them, and distributed among her troops a kind of military catechism which brought to their knowledge in a simple and effective form the principles on which they were expected to act.2 It is to be hoped that other belligerents will follow her example in this respect. The only case not covered by the Brussels Code is that of isolated individuals in non-occupied districts, who render service to their country by such acts as destroying a road or blowing up a bridge and thus impeding the advance of the enemy. It was brought forward by the Delegate of Belgium, but dropped without being settled, owing to the expression of a general opinion that it would be unwise to attempt to formulate any rule that would cover it.3

1 Tableau Général de L'Institut de Droit International, p. 173.

2 Ibid., pp. 165-166.

3 British State Papers, Miscellaneous, No. 1 (1875), p. 265.

§ 220.

We have next to consider the subject of

Levies en masse.

Levies en masse.

They may be regarded historically in the same light as guerilla troops; for the account given in the last section of the way in which the latter came to be regarded as legitimate agents of warfare applies to them also. But we must not go further and place them under the rules which deal with partisan forces. Not only do they differ from irregular bands in some essential circumstances, but they also differ so widely among themselves that the same provisions will not apply to all of them. When the whole manhood of a country is called to arms by its government and drafted into its armies, there can be no doubt as to the legality of the process.1 Such a levy is merely a specially drastic and comprehensive method of recruiting. Its adoption is a matter of internal policy, not of international concern. A good example is to be found in the French levy en masse of 1793, which filled the ranks of the revolutionary armies with brave and devoted soldiers, who had as much right as other soldiers to the privileges of combatants. Another kind of levy en masse may take place in countries where the entire male population is passed through the army. If at the approach of an invader the people rise, either spontaneously or in obedience to an order from the government, and at once adopt the military organization to which they have been trained, they are to be regarded as regular combatants. The Delegate of Germany at the Brussels Conference alluded to this as a possible case, and pointed out that in his own country there was a Landstrum numbering nearly three million men, who would form the levy en masse in case of necessity.2

1 Acollas, Droit de la Guerre, pp. 49-50. The recent Boer war affords a good example. All the able-bodied men of both the Transvaal and the Orange Free State were placed in the field.

2 British State Papers, Miscellaneous, No. 1 (1875), p. 263.