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General Smith's oral instructions "were not taken literally and were not followed," and that "no women or children or helpless persons or noncombatants or prisoners were put to death in pursuance of them." He said:

"An examination of the evidence has satisfied me that the conviction was just, and that the reasons stated for the very light sentence imposed are sustained by the facts. General Smith, in his conversation with Major Waller, was guilty of intemperate, inconsiderate, and violent expressions, which, if accepted literally, would grossly violate the humane rules governing American armies in the field, and if followed would have brought lasting disgrace upon the military service of the United States. Fortunately, they were not taken literally and were not followed. No women or children or helpless persons or noncombatants or prisoners were put to death in pursuance of them.

"An examination of the records and proceedings upon the trial of Major Waller, which immediately preceded that of General Smith, shows that the instructions in question bore no relation to the acts for which Major Waller was tried, and were not alleged by him as justification for those acts. Major Waller was tried for causing certain natives, who had acted as bearers or guides of one of his expeditions, to be put to death for treachery without proper trials; and he defended his action, not upon the ground of any orders received from General Smith, but upon the ground that as commanding officer he was justified by the laws of war.

"General Smith's written and printed orders, and the actual conduct of military operations in Samar, were justified by the history and conditions of the warfare with the cruel and treacherous savages who inhabited the island, and their entire disregard of the laws of war, were wholly within the limitations of General Orders, No. 100, of 1863, and were sustained by precedents of the highest authority. Thus, in 1779, Washington ordered General Sullivan in the campaign against the Six Nations to seek the total destruction and devastation of their settlements. He wrote, But you will not by any means listen to overtures of peace before the total ruin of their settlement is effected. Our future security will be in their inability to injure us, the distance to which they are driven, and in the terror with which the severity of the chastisement they receive will inspire them.'

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"The Fort Phil Kearny massacre in 1866, for the base treachery, revolting cruelty, and the conditions of serious danger which followed it did not approach the massacre at Balangiga in Samar in September, 1901. There the natives had been treated with kindness and confidence, liberty and self-government had been given to them. Captain Connell, the American commander, was of the same faith

and had been worshipping in the same church with them. With all the assurance of friendship our men were seated at their meal unarmed among an apparently peaceful and friendly community, when they were set upon from behind and butchered and their bodies when found by their comrades the next day had been mutilated and treated with indescribable indignities. Yet there was no such severity by American soldiers in Samar as General Sherman proposed toward the Sioux after Fort Phil Kearny.

"It is due, however, to the good sense and self-restraint of General Smith's subordinates, and their regard for the laws of war, rather than to his own self-control and judgment, that his intemperate and unjustifiable verbal instructions were not followed, and that he is relieved from the indelible stain which would have resulted from a literal compliance with them.

"It is the duty of a general officer whose age and experience have brought him to high command not to incite his subordinates to acts of lawless violence, but to so explain to them the application of the laws of war and the limitations upon their conduct as to prevent transgressions upon their part and supplement their comparative inexperience by his wise control. In this General Smith has signally failed, and for this he has been justly convicted. Although the sentence imposed is exceedingly light, it carries with it a condemnation which, for an officer of his rank and age, is really severe punishment.

"For this reason and for the further reason that General Smith has served his country long and faithfully, has exhibited high courage and good conduct in many battles, has been seriously wounded in the civil war and in the war with Spain, and is about concluding at long and honorable career as a faithful and loyal servant of his country, I recommend that the mild sentence imposed be confirmed.

"Should you approve the findings and sentence of the court in accordance with this recommendation, I feel bound to say, further. that in view of the findings and sentence and of the evident infirmities which have made it possible that the facts found should exist, it is not longer for the interest of the service that General Smith should continue to exercise the command of his rank. His usefulness as an example, guide, and controlling influence for the junior officers of the Army is at an end; and as he is already upward of sixty-two years of age, I recommend that you exercise the discretion vested in you by law and now retire him from active service."

S. Doc. 213, 57 Cong. 2 sess. 2, 3, 5.

5. DECEIT.

§ 1115.

Deceit against an enemy is as a rule permitted; but it is clearly understood that this does not embrace the abuse of signs which are employed in special cases to prevent the exercise of force or to secure immunity from it. "Thus information must not be surreptitiously obtained under the shelter of a flag of truce, and the bearer of a misused flag may be treated by the enemy as a spy; buildings not used as hospitals must not be marked with a hospital flag; and persons not covered by the provisions of the Geneva Convention must not he protected by its cross. A curious arbitrary rule affects one class of stratagems by forbidding certain permitted means of deception from the moment at which they cease to deceive. It is perfectly legitimate to use the distinctive emblems of an enemy in order to escape from him or to draw his forces into action; but it is held that soldiers clothed in the uniforms of their enemy must put on a conspicuous mark by which they can be recognized before attacking, and that a vessel using the enemy's flag must hoist its own flag before firing with shot or shell."

Hall, Int. Law, 5th ed. 537-539, citing Ortolan, Liv. III. chap. I.; Pistoye et Duverdy, I. 231-234; Bluntchli, § 565; The Peacock, 4 Rob. 187.

"101. While deception in war is admitted as a just and necessary means of hostility, and is consistent with honorable warfare, the common law of war allows even capital punishment for clandestine or treacherous attempts to injure an enemy, because they are so dangerous, and it is so difficult to guard against them."

Instructions for the Government of Armies of the United States in the
Field, General Orders, No. 100, April 24, 1863, War of the Rebellion,
Official Records, series 3, III. 159.

"ARTICLE XXIV. Ruses of war and the employment of methods necessary to obtain information about the enemy and the country, are considered allowable."

Convention respecting the Laws and Customs of War on Land, The
Hague, July 29, 1899, 32 Stat. II. 1818.

6. TREATMENT OF RESIDENT ALIEN ENEMIES.

§ 1116.

See, as to expulsion, supra, § 559.

Various measures have been adopted by governments in relation to alien enemies residing within their territory. Such persons may, says Rivier, be detained, especially those subject to military service;

or they may be interned in determinate places, or yet may be expelled, a brief delay being allowed them for settling up their affairs. But such measures, although justified by the right of self-preservation, are less and less practiced and are often criticised as not being in harmony with the spirit of modern war.

Rivier, Principes du Droit des Gens, II. 230. In 1755 British subjects
were expelled from France; while in 1803 those between the ages
of 18 and 60 were declared prisoners of war by Napoleon, ostensibly
as an act of reprisals for the capture of French ships. During the
Crimean war Russian subjects were permitted to remain in England
and France. In 1870 Frenchmen were permitted to remain in Ger-
many. On the contrary, Germans in France were first detained; but
afterwards, by an order of Aug. 28, 1870, those residing in Paris or
the Department of the Seine, were, on the ground of national defense
as well of their personal safety, required to depart within three days,
and either to leave the country or to retire to one of the depart-
ments below the Loire. By a ukase of May 12, 1877, Turkish
subjects in Russia were permitted to continue to reside there and
continue their business, subject to the laws. In 1879 Chileans were
expelled from Bolivia and their goods confiscated. (Ibid.)
The instructions issued to United States marshals with regard to alien
enemies during the war of 1812 were of a general nature. The
minor police regulations concerning such aliens were confided to the
marshals, respectively, under those general instructions. (Mr.
Adams, Sec. of State, to Mr. Cuthbert, M. C., March 1, 1821, 18 MS.
Dom. Let. 274.)

By treaties of commerce it has often been stipulated that the citizens of the one country residing within the territories of the other shall, in the event of war, have a certain time within which to collect or dispose of their effects and depart. In yet other cases it has been provided that such persons may during the war continue their residence and business, so long as they behave themselves. See, for example, the treaty between the United States and the Argentine Confederation, July 10, 1853, Article XII.

"Japanese subjects are allowed to continue, under the protection of the Russian laws, their sojourn and the exercise of peaceful occupations in the Russian Empire, excepting in the territories which are under the control of the imperial viceroy in the Far East."

Imperial Russian order, Feb. 14, 1904, For. Rel. 1904, 727; also Monthly
Consular Reports, May, 1904, LXXV. 397.

7. PROHIBITION OF EXPORTS.

§ 1117.

A libel was filed against the French privateer La Vengeance for forfeiture for exporting arms and munitions of war in violation of the act of May 22, 1793, prohibiting such exportation for a year. The

district court made a decree of forfeiture, which was reversed by the circuit court on the ground that there had been no exportation within the meaning of the statutes. The Supreme Court affirmed the decree of the circuit court with costs, but the next day ordered the words "with costs" to be stricken out, as there appeared to have been some cause for the prosecution." The question whether costs could in any case be awarded against the United States was left open.

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United States v. La Vengeance (1796), 3 Dall. 297, 301.

The act of May 22, 1793, was passed, not during war, but in expectation or apprehension of war.

As to the British royal proclamation issued Nov. 30, 1861, in apprehension of hostilities on account of the case of the Trent, prohibiting the exportation from the United Kingdom of gunpowder, saltpeter, nitrate of soda, and sulphur, see Moore, Int. Arbitrations, IV. 4379.

April 14, 1862, the Secretary of the Treasury, by order of the President, ordered collectors of customs to "clear no vessel with anthracite coal for foreign ports nor for home ports south of Delaware Bay till otherwise instructed." May 18, 1862, this order was "so far modified as to apply only to ports north of Cape St. Roque, on the eastern coast of South America, and west of the fifteenth degree of longitude east." On July 30, 1864, these orders were modified so far as to permit the exportation of anthracite coal to Canada, except by sea, on condition that the Canadian government should prevent the exportation or use of the article on seagoing vessels. Appropriate action for the fulfillment of this condition was taken by the governor-general of Canada.

Mr. Seward, Sec. of State, to Mr. Stuart, British chargé, Oct. 3, 1862, Dip.
Cor. 1862, 296, 302; Mr. Seward, Sec. of State, to Mr. Chase, Sec. of
Treas., Mar. 31, 1864, 63 MS. Dom. Let. 555; Mr. F. W. Seward,
Assist. Sec. of State, to Mr. Draper, Aug. 5, 1864, 65 MS. Dom. Let.
418; Mr. F. W. Seward, Assist. Sec. of State, to Mr. Harrington,
Act. Sec. of Treas., Aug. 8, 1864, 65 MS. Dom. Let. 467; Mr. Seward,
Sec. of State, to Mr. Fessenden, Sec. of Treas., Aug. 16, 1864, 65 MS.
Dom. Let. 522.

"Until further instructed you will regard as contraband of war the following articles, viz: Cannon, mortars, fire-arms, pistols, bombs, grenades, firelocks, flint, matches, powder, saltpetre, balls, bullets, pikes, swords, sulphur, helmets or boarding caps, sword belts, saddles and bridles, always excepting the quantity of the said articles which may be necessary for the defense of the ship and of those who compose the crew, cartridge-bag material, percussion and other caps, clothing adapted for uniforms, rosin, sail cloth of all kinds, hemp and cordage material, ship lumber, tar and pitch, ardent spirits, military persons in the service of the enemy, despatches of the enemy, and articles of like character with those specially enumerated.

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