Russians. In 1810 Great Britain had, confined in prisons,
hulks, and guard-ships, 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. Napoleon's proposition was in accordance with
the usages of war in such cases, and not unreasonable in
itself; while 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.1

10. But while no State is obliged, by the positive rules No posiof international law, to enter into a cartel for the exchange of tive obligation to prisoners of war, there is a strong moral duty imposed upon exchange 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 acting in its service, and in the support of its cause. This is a care which the State owes to those who have exposed themselves in her defence.

§ 11. Sometimes prisoners of war are permitted to resume Re'ease their liberty, upon the condition that they will not again take on parɔle up arms against their captors, either for a limited time, or

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.

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.

Conditions imposed

on

release

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 ought to preside over the execution of these compacts, which are designed to mitigate the evils of war, without defeating its legitimate purposes.

§ 12. There are certain limits to the conditions which the captor may impose on the release of prisoners of war, and to the stipulations which an officer is authorised to enter into, either for himself or for his troops. The captor may impose the condition that the prisoners shall not take up arms against him, either for a limited period or during the war; but he cannot require them to renounce for ever the right to bear arms against him; nor can they, on their part, enter into any engagements inconsistent with their character and duties as citizens and subjects. Such engagements made by them would not be binding upon their sovereign or State. The reason of this limitation is obvious: the captor has the absolute right to keep his prisoners in confinement till the termination of the war; but on the conclusion of peace he would no longer have any reasons for detaining them. They, therefore, have the right to stipulate for their conduct during that period, but not beyond the time when they would have been released had no agreement been entered into. Nor can the captor generally impose conditions which extend beyond the period when the prisoners would necessarily be entitled to their liberty. Beyond this, their services are due to, and at the disposition of, the State to which they owe allegiance, and they have no right to limit them by contracts with a foreign power. The following answer was directed by General Halleck 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

Bello, Derecho Internacional, pt. ii. cap. iii. § 5; De Cussy, Droit Maritime, liv. i. tit. ii. § 32.

to the United States, while others per duress had been required
to take an oath not to bear arms against that Government :-
'August 13, 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 re-
sorted 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 volun-
tarily 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.'

exchanges

§ 13. By the modern usage of nations, commissaries are Delay in permitted to reside in the respective belligerent countries, making for the purpose of negotiating and carrying into effect the necessary arrangements for the support, as well as the release and exchange of prisoners of war, but difficulties sometimes occur in arranging the terms of such agreements, and it not unfrequently happens that a considerable length of time will elapse after their capture before they can be exchanged or released. Moreover, by the conditions of their parole, they are sometimes required to remain in the captor's country for a fixed term after their release. During these periods they must be subsisted either by the captor or by their own Government, and it sometimes becomes a question to which this duty properly belongs.'

support of

§ 14. The duty of a State to support its subjects, while General prisoners in the hands of an enemy, is the same as its duty to rule for provide for their ransom and release. Indeed, a neglect, or prisoners refusal to do so, would seem to be even more criminal than a neglect or refusal to provide for their exchange; for the

1 Wheaton, Elem. Int. Law, pt. iv. ch. ii. § 3; Phillimore, On Int. Law, vol. iii. § 95.

Where

cannot be

exigencies of the war may make it the temporary policy of the State to decline an exchange, but nothing can excuse it in leaving its subjects to suffer in an enemy's country, without any fault of their own, when the State has the means of relieving them from the misfortune in which they are involved, by acting in its service and by supporting its cause. It follows, therefore, that although a State may properly, under certain circumstances, refuse to exchange its prisoners, it cannot, without a violation of moral duty, neglect to make the proper and necessary arrangement for their support while they are thus retained, by a captor who is willing to exchange them. It is stated that, in the wars of Napoleon, the British authorities regularly remitted the whole cost of the support of English prisoners, in France, to the French Government, but that the latter failed to make any provision whatever for the support of its subjects in the hands of the English, leaving them to starvation, or the charity of their enemies. The Earl of Liverpool, referring in 1814 to the large sum of money then due from the French to the British Government for the maintenance of prisoners of war, remarks that an Article to liquidate such debts has usually been inserted in treaties of peace, but that he did not believe in the present case such an Article would be likely to give the British Government the money, and that it certainly could not give it without material pressure and inconvenience to the French Government; that it occurred to him, therefore, there might be some grace in abandoning it, and that the honour of the French Government might perhaps be saved, on some other points, by a formal relinquishment of the claim in an Article of the treaty, and that he was sincerely desirous to see the credit of the French upheld, as far as the English Government could contribute to it without sacrifice of its public principles.

§ 15. It not unfrequently happens in a war, that, although exchanges both parties are willing to make an exchange of prisoners, effected much delay occurs in agreeing upon the terms of the cartel. This sometimes results from a want of good faith on both sides, the parties entering into negotiations with no intention of coming to an agreement. Again, when the cartel has been 1 Alison, Hist. of Europe, vol. iii. pp. 394, 395; Hansard, Parliamentary Debates, vol. xx. pp. 634, 694; Hardenburg, Mémoires d'un Homme d'Etat, tome ii. p. 438; tome ix. p. 105; Las Cases, Mémoires de SainteHélène, tome vii. pp. 39, 40; Annual Register, 1811, p. 76.

negotiated, it is sometimes impossible to carry it into effect immediately, the peculiar circumstances of the war and the character of the military operations interrupting, or preventing, its execution. Such delays are the more frequent in great wars, which embrace several countries and seas, within the theatre of their operations. In all cases where the circumstances prevent an exchange of prisoners of war, or render it impossible for them to receive the means of support from their own State, it is the duty of the captor to furnish them with subsistence; for humanity would forbid his allowing them to suffer or starve. But if their own Government should refuse to make arrangements for their support, exchange, or release, and if the captor should give them sufficient liberty to enable them to earn their own support, his responsibility ceases, and whatever sufferings may result, are justly chargeable upon their own Government. Under ordinary circumstances, prisoners of war are not required to labour beyond the usual police duty of camp and garrison; but where their own State refuses, or wilfully neglects to provide for their release or support, it is not unreasonable in the captor to require them to pay with their labour for the subsistence which he furnishes them. But this can be done only in extreme cases, and even then they should be treated kindly and with mildness, and no degrading or very onerous labour should be imposed on them. All harshness and unnecessary severity would be contrary to the modern laws of war.1

§ 16. But, sometimes the captor refuses to enter into any Historical example cartel for the exchange of his prisoners, or even to release them on parole. He may, for reasons satisfactory to himself, persist in retaining in confinement the prisoners whom he has taken from the enemy, at the same time leaving the enemy to keep and provide for those of his own people, which the latter may have captured. In such a case he cannot expect the opposing belligerent to provide for the support of prisoners thus retained, and the laws of war as well as of humanity require that he himself shall provide, in a proper manner, for their subsistence. In 1809 the Spaniards had sent thousands of prisoners of war to the Balearic Isles without any order

1 Wildman, Int. Law, vol. ii. p. 26; Scott, United States Army Reg., 1825, $$ 709-716; the 'St. Juan,' 5 Rob. Rep., p. 39; Heffter, Droit International, § 129.