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prisoners, either with a view to prevent them from taking up arms, or for the purpose of weakening the enemy. Even women and children may be held in confinement, if circumstances render such a measure necessary, in order to secure the just objects of the war. But if the general, without reason, and from mere caprice, refuses women and children their liberty, he will be taxed with harshness and brutality, and will be justly censured for not conforming to a custom established by humanity. When, however, he has good and sufficient reasons for disregarding, in this particular, the rules of politeness and the suggestions of pity, he may do so without being justly accused of violating the laws of war. The presumption, however, is against him, and, if he wishes to preserve a fair fame, he must give good and satisfactory reasons for conduct so unusual.1

§ 6. As the right to kill an enemy, in war, is applicable only to such public enemies as make forcible resistance, this right necessarily ceases so soon as the enemy lays down his arms and surrenders his person. After such surrender, the opposing belligerent has no power over his life, unless new rights are given by some new attempt at resistance.

'It was

a dreadful error of antiquity,' says Vattel, 'a most unjust and savage claim, to assume a right of putting a prisoner of war to death, and even by the hand of the executioner.' By the present rules of international law, quarter can be refused the enemy only in cases where those asking it have forfeited their lives by some crime against the conqueror, under the laws and usages of war.2

1 Vattel, Droit des Gens, liv. iii. ch. viii. §§ 147, 148; Phillimore, On Int. Law, vol. iii. §§ 94, 95.

2 Kent, Com. on Am. Law, vol. i. p. 90; Vattel, Droit des Gens, liv. iii. ch. viii. § 149. Deserters acquire no rights from having joined the enemy, but may be put to death.

Heffter says, that persons escaping from captivity and retaken, or even recaptured in war, do not merit punishment, for they only obeyed their love of liberty. But this does not apply to those on parole.

The garrison of El Arish, near Gaza, having capitulated to Buonaparte, during the time of the campaign in Egypt, he set it free on the condition that it should proceed to Bagdad, and not serve against the French for a year. Having arrived at Jaffa, he found it necessary to make an assault before his troops could take possession of it, on which occasion three thousand prisoners were taken, who turned out to be, for the most part, those very soldiers whose lives and liberty had been spared upon conditions which they had immediately violated. To restore these prisoners a second time to liberty, was in fact to send fresh recruits to the Turks;

7. According to the laws of war, as practised by some of the nations of antiquity, and by savage and barbarous nations of the present time, prisoners of war might be put to death, or sold into slavery. But, in the present age, no nation claiming a semi-civilisation makes slaves of prisoners of war, or claims the general right to put them to death, although such a right is sometimes exercised 'in those extreme cases where resistance on their part, or the part of others who come to their rescue, renders it impossible to keep them. Both reason and general opinion concur in showing that nothing but the strongest necessity will justify such an act.' Although, by the milder rules of modern warfare, prisoners of war can not be treated harshly, the captor may, nevertheless, take all proper measures for their security, and, if there be reason to apprehend that they will rise on their captors, or make their escape, he may put them in confinement and even fetter them. But such extreme measures should never be resorted to, except in cases of absolute necessity. Self-security is the first law of the conqueror, and the laws of war justify the use of means necessary to that end, but, beyond that, no harshness or severity is allowable. Each particular case, as it arises, must be judged by the attending circumstances, the means employed, and the danger they were designed to guard against. The responsibility of a commanding officer is always very great, and his conduct should not be hastily condemned, as it may be induced by circumstances not generally known, or easily explained. Too much leniency is often as fatal to his plans as an unjust severity to his reputation for humanity. to forward them to Egypt under escort was to lessen the strength of an army already too weak. The law of necessity decided their fate; they were treated, in consequence of such an act of perjury, in the same manner as they had treated the French wounded after a battle, whose heads they cut off on the spot.-(Mem, of Rov., 1.)

Lord John Russell, writing to Lord Lyons, January 24, 1862, says, respecting the letter of Judge Daly on the question whether Southern privateers'-men can be regarded as pirates, 'Her Majesty's Government are glad to find that the pretension has been so successfully combated. There can be no doubt, that men embarked on board a man-of-war or privateer, having a commission, or of which the commander has a commission, from the so-called President Davis, should be treated in the same way as officers and soldiers, similarly commissioned for operations on land. An insurrection extending over nine States in space, and ten months in duration, can only be considered as a civil war; and persons taken prisoners on either side, should be regarded as prisoners of war. Reason, humanity, and the practice of nations, require that this should be the case.' (See also opinion of Judge Daly, ante, ch. iii. § 21).

He should be judged by his general course and character, rather than by a single act, the motives of which are so easily misunderstood, and so often misconstrued.1

§ 8. The ancient practice of putting prisoners of war to death, or selling them into slavery, gradually gave way to that of ransoming, which continued through the feudal wars of the middle ages. By a cartel of March 12th, 1780, between France and England, the ransom in the case of a field-marshal of France, or an English field-marshal, or captain-general, was fixed at sixty pounds sterling. And even as late as the treaty of Amiens, in 1802, between Great Britain and the French and Batavian republics, it was deemed necessary to stipulate that the prisoners on both sides should be restored without ransom. The present usage, of exchanging prisoners without any ransom, was early introduced among the more polished nations, and was pretty firmly established in Europe before the end of the seventeenth century.3

§ 9. But this usage is not, even now, considered obligatory upon those who do not choose to enter into a cartel for that purpose. 'Whoever makes a just war,' says Vattel, 'has a right, if he thinks proper, to detain his prisoners till the end of the war.' 'If a nation finds a considerable advantage in leaving its soldiers prisoners with the enemy during the war, rather than exchange them, it may certainly, unless bound by cartel, act as is most agreeable to its interests. This would be the case of a State abounding in men, and at war with a nation more formidable by the

1 Wheaton, Elem. Int. Law, pt. iv. ch. ii. § 2 ; Vattel, Droit des Gens, liv. iii. ch. viii. §§ 149, 150, 152; Phillimore, On Int. Law, vol. iii. § 95; Martens, Précis du Droit des Gens, § 275.

2 Bynkershoek states, that the Dutch revived the ancient practice of putting prisoners to death, in the case of Spanish prisoners who were not ransomed; also that they decreed death against enemies, who made a descent on the coast for the purpose of plunder, or approached the coast within a certain distance. The same author mentions that the Dutch enslaved prisoners by way of retaliation, when they sold prisoners from the Barbary States to the Spaniards.

The people of Talavera, and Spanish soldiers, beat out the brains of wounded Frenchmen lying on the battle-field in the neighbourhood. The English, in every case, checked these inhuman perpetrators, and in some instances fired on them. (Nap. Pen. vol. ii.)

Wheaton, Hist. Law of Nations, pp. 162-4; Burlamaqui, Droit de la Nat. et des Gens, tome v. pt. iv. ch. vi.; Phillimore, On Int. Law, vol. iii. § 95; Heffter, Droit International, §§ 126–9.

courage than the number of its soldiers. It would have been of little advantage to the czar, Peter the Great, to restore the Swedes his prisoners for an equal number of Russians.' In 1810, Great Britain had, confined in prisons, hulks, and guardships, about fifty thousand French prisoners of war, while Napoleon had a much less number of English, but probably enough Spanish and Portuguese prisoners (allies of England) to more than make up the equality of numbers. He offered to exchange the whole against the whole, or one thousand English and two thousand Spanish and Portuguese for three thousand French. But the British negotiators at first insisted upon the exchange being confined to French and English; they, however, afterward consented to a general exchange, beginning with the English for an equal number of Frenchmen. Napoleon would not agree to this, because, he said, as soon as the English got back their own countrymen, they would find some excuse for not carrying the exchange further, and retain the remainder of the French in the hulks for ever. The negotiations were, therefore, broken off. That both parties had a legal right to decline the exchange cannot be denied; and the subsequent attempts of each to cast odium upon the other for refusing its own proposition was unbecoming the character of two great nations. Napoleon's proposition was in accordance with the usages of war in such cases, and not unreasonable in itself; moreover, by the same code England was bound to provide for the exchange of her allies who had been made prisoners in the common cause. But if she believed that she would, by the proposed arrangement, lose more than she gained in relative power, she had an undoubted right to decline its acceptance. And certainly Napoleon had good reasons for declining the arrangement proposed to him by Great Britain.'

§ 10. But while no State is obliged, by the positive rules of international law, to enter into a cartel for the exchange of prisoners of war, there is a strong moral duty imposed upon the Government of every State to provide for the release of such of its citizens and allies as have fallen into the hands of the enemy. They have fallen into this misfortune only by

1 Las Cases, Mémoires de Sainte-Hélène, tome vii. pp. 39, 40; Alison, Hist. of Europe, vol. iii. pp. 394, 395; Annual Register, 1811, p. 76, Parliamentary Debates, vol. xx. pp. 623-691.

acting in its service, and in the support of its cause. 'This,' says Vattel, 'is a care which the State owes to those who have exposed themselves in her defence."1

§ II. Sometimes prisoners of war are permitted to resume their liberty, upon the condition that they will not again take up arms against their captors, either for a limited time, or during the continuance of the war, or until duly exchanged. Officers are very frequently released upon their parole, subject to the same conditions. Such agreements made by officers for themselves, or by a commander for his troops, are valid, and cannot be annulled by the State to which they belong. Agreements of this kind come within the necessary limits of the implied powers of the commander, and are obligatory upon the State. Good faith and humanity,' says Wheaton, 'ought to preside over the execution of these compacts, which are designed to mitigate the evils of war, without defeating its legitimate purposes."3

1

Grotius, de Jur. Bel. ac Pac., lib. iii. cap. vii. §§ 8, 9; Wheaton, Hist. Law of Nations, pp. 162-4; Phillimore, On Int. Law, vol. iii. § 95. 2 The following answer was directed by the author to be returned to the general commanding the Confederate forces, who had complained that many citizens of the United States, engaged in peaceful avocations, had been imprisoned because they refused to take the oath of allegiance to the United States, while others per duress had been required to take an oath not to bear arms against that Government. August 13th, 1862. The Government of the United States has never authorised any extortion of oaths of allegiance or military paroles, and has forbidden any measures to be resorted to tending to that end. Instead of extorting oaths of allegiance and paroles it has refused the application of several thousand prisoners to be permitted to take them, and return to their homes in the rebel States. At the same time this Government claims and will exercise the right to arrest, imprison, or place beyond its military lines any persons suspected of giving aid and information to its enemies, or of any other treasonable act. And if persons so arrested voluntarily take the oath of allegiance, or give their military parole, and afterwards violate their plighted faith, they will be punished according to the laws and usages of war. You will assure General Lee that no unseemly threats of retaliation on his part will deter this Government from exercising its lawful rights over both prisoners and property of whatever name or character.'

The Brussels Conference, 1874, declares: Art. 36. The population of an occupied territory cannot be compelled to take part in military operations against their own country. Art. 37. The population of occupied territories cannot be compelled to swear allegiance to the enemy's power. Art. 38. The honour and rights of the family, the life and property of individuals, as well as their religious convictions and the exercise of their religion should be respected. Private property cannot be confiscated. Art. 39. Pillage is expressly forbidden.

3 Wheaton, Elem. Int. Law, pt. iv. ch. ii. § 3; Phillimore, On Int. Law, vol. iii. § 95; Riquelme, Derecho Pub. Int., lib. i. tit. i. cap. xii.

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