Exemp be forfeited refrain from all hostilities, pay the military contributions which may be imposed on them and quietly submit to the authority of the belligerent who may happen to be in the military possession of their country, they are allowed to continue in the enjoyment of their property, and in the pursuit of their ordinary avocations. This system has greatly mitigated the evils of war, and if the general, in military occupation of hostile territory, keeps his soldiery in proper discipline, and protects the country-people in their labours, allowing them to come freely to his camp to sell their provisions, he usually has no difficulty in procuring subsistence for his army, and avoids many of the dangers incident to a position in a hostile territory.' § 4. But this exemption of the enemy's persons from the tion may extreme rights of war is strictly confined to non-combatants, or such as refrain from all acts of hostility. If the peasantry and common people of a country use force, or commit acts in violation of the milder rules of modern warfare, they subject themselves to the common fate of military men, and sometimes to a still harsher treatment. And if ministers of religion and females so far forget their profession and sex as to take up arms, or to incite others to do so, they are no longer exempted from the rights of war, although always within the rules of humanity, honour, and chivalry. And even if a portion of the non-combatant inhabitants of a particular place become active participants in the hostile operations, the entire community are sometimes subjected to the more rigid rules of war. Exemption is limited § 5. Moreover, in some cases, even where no opposition is made by the non-combatant inhabitants of a particular place, the exemption properly extends no further than to the sparing of their lives; for if the commander of the belligerent forces has good reason to mistrust the inhabitants of any place, he has a right to disarm them, and to require security for their good conduct. He may lawfully retain them as prisoners, either with a view to prevent them from taking up arms, or for the purpose of weakening the enemy. Even women and Lord Wellington writing of the dastardly conduct of the Spanish troops, says that they had become odious to their country. The peaceable inhabitants, much as they detested and suffered from the French, almost wished for the establishment of Joseph Bonaparte's government, to be protected from the outrages of their own troops. children may be held in confinement, if circumstances render entitled to quarter § 6. As the right to kill an enemy in war is applicable Prisoners 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 or asks for quarter. 'Qui merci prie, merci doit avoir,' is an old maxim. After such surrender, the opposing belligerent has no power over his life, unless new rights are given by some new attempt at resistance. 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. of § 7. Although the practice of putting to death prisoners Treatment of war has become obsolete among all civilised nations-for prisoners we deem the killing of wounded French and English soldiers, of war helpless on the battle-field, by the Russians in the Crimean war of 1854 to have been a sad exception-yet it is to be 1 Vattel, Droit des Gens, liv. iii. ch. viii. §§ 147, 148; Phillimore, On Int. Law, vol. iii. $$ 94, 95. By order of the War Department, a circular was issued to the army of the United States, in February 1866, that copies of such newspapers as were published in the several military departments, and which contained sentiments of hostility to the Government, should be sent to headquarters, and that it should be stated whether such papers were habitual in the utterance of such sentiments; the persistent publication of articles calculated to keep up hostility of feeling between the people of different parts of the United States could not be tolerated. Letters of advice, correspondence, and intelligence, from an English subject in England, to the enemy to enable the latter to cause annoyance or to defend themselves, written and sent in, in order to be delivered to them, are, though intercepted, overt acts of treason. —R. v. Hensey, 1 Burr. R., 650; R. v. Stone, 6 D. and E., 527. entirely attributed to the clemency of the victor; the right remains, and might still be exercised in cases of dire necessity. 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; 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. By the milder rules of modern warfare, prisoners of war cannot be treated harshly, but 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 extreme measures should never be resorted to except in cases of absolute necessity. Persons who escape from, and are retaken by the enemy, or even who are recaptured in battle, do not deserve any punishment, for they have only obeyed their love of liberty. 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. 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 Vattel is evidently of opinion that cases may occur where the putting of prisoners of war to death may be justifiable. 'But,' he says, 'to justify us in coolly and deliberately putting to death a great number of prisoners, the following conditions are indispensable: Ist, That no promise has been made to spare their lives; and 2nd, That we be perfectly assured that our own safety demands such a sacrifice. If it is at all consistent with prudence, either to trust to their parole, or to disregard their perfidy, a generous enemy will rather listen to the voice of humanity than to that of timid circumspection. Charles XII., being encumbered with his prisoners after the battle of Narva, only disarmed them, and set them at liberty; but his enemy, still impressed with the apprehensions which his warlike and formidable opponents had excited in his mind, sent into Siberia all the prisoners he took at Pultowa. The Swedish hero confided too much in his own generosity: the sagacious monarch of Russia united, perhaps, too great a degree of severity with his prudence. When Admiral Anson took the rich Acapulco galleon, near Manilla, he found that the prisoners outnumbered his whole ship's company; he was, therefore, under the necessity of confining them in the hold, where they suffered cruel distress. But, had he exposed himself to the risk of being carried away a prisoner, with his prize and his own ship together, would the humanity of his conduct have justified the imprudence of it? Henry V., King of England, after his victory in the battle of Agincourt, was reduced, or thought himself reduced, to the cruel necessity of sacrificing the prisoners to his own safety.' 'Nothing,' continues Vattel, 'short of the greatest necessity, can justify so terrible an execution; and the general, whose situation requires it, is greatly to be pitied.' At the present day, the conduct of any general who should deliberately put his prisoners to death would probably be declared infamous.2 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; Speech of Lord J. Russell, House of Commons, December 1854. During the Peninsular war the people of Talavera, and Spanish soldiers, beat out the brains of wounded Frenchmen lying on the battlefield in the neighbourhood. The English, in every case, checked these inhuman perpetrators. (Nap. Pén. vol. ii.) 2 Vattel, Droit des Gens, liv. iii. ch. viii. § 151; Manning, Ław of Made slaves in ancient times Ransom and § 8. To the ancient practice of putting prisoners of war to death succeeded that of making them slaves, and it was exercised for many ages. It had not become extinct in England in 1628,' so far as detention of prisoners by private persons is concerned. The Dutch used to sell to the Spaniards, as slaves, the Algerines whom they had taken prisoners in the Atlantic or Mediterranean. In the 1664 the States-General gave orders to their admiral to sell as slaves all the pirates he should take. But the custom of making slaves of prisoners of war has fallen into disuse among Christians, although the right remains. It was on this principle that Buonaparte was sent to Elba and St. Helena by the British Government at the beginning of this century, and that Arabi Pasha was exiled to Ceylon by the Egyptian Government at the close of 1882. § 9. The practice of slavery gradually gave way to that of exchange ransoming, which continued through the feudal wars of the middle ages. By a cartel of March 12, 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 ranson, was early introduced among the more polished nations, and was pretty firmly established in Europe before the end of the seventeenth century. But this usage is not, even now, considered obligatory upon those who do not choose to enter into a cartel for that purpose. 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 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 Nations, p. 165. Rutherforth, Institutes, book ii. chap. ix. § 17; Philli- |