Character to be given for their subsistence, and the Junta, when remonstrated with, cast 7,000 ashore on the little desert rock of Cabrera. At Majorca numbers had been massacred by the inhabitants in the most cowardly and brutal manner, but those left on Cabrera suffered miseries that can scarcely be described. Afflicted with hunger, thirst, and nakedness, they lived like wild beasts. Less than 2,000 remained to tell the tale of this inhumanity. After the fall of Tarragona in 1811, Suchet, the French commander, offered to exchange his Catalonian prisoners, the best soldiers in Spain, for the French prisoners confined at Cabrera, men utterly ruined in constitution by their cruel captivity. Cuesta, the Spanish general, was disposed to accede to the proposition, but the Regency, at the request of Wellesley, the British envoy, peremptorily forbad the exchange; and the French prisoners therefore remained, says Napier, 'a disgrace to Spain, and to England, for if her envoy interfered to prevent their release, she was bound to insist that thousands of men, whose prolonged captivity was the result of her interference, should not be exposed on a barren rock, naked as they were born, and fighting for each other's miserable rations, to prolong an existence inconceivably wretched.'1 § 17. Where circumstances render it obligatory upon the of support captor to support the prisoners whom he has taken, this support is usually limited to the regular provision ration, and such clothing and fuel as may be absolutely necessary to prevent suffering. Officers and other persons who have the means of paying for their support cannot require any assistance from the captor. But such as have no money, are certainly entitled to an allowance sufficient for personal comfort; and modern custom and military usage require that it should be proportioned to the rank, dignity, and character of the prisoner. It, however, can never properly be required for any considerable length of time, as prisoners of this description are bound to provide for their own support as soon as they can procure the means of doing so. The moneys expended for the support of prisoners of war may constitute a just demand for reimbursement; and such amounts are either settled by commissioners during the war, or become subjects of stipulations in a treaty of peace.2 1 Napier, Hist. Peninsular War, vol. ii. p. 409. 2 Wildman, Int. Law, vol. ii. p. 26; Garden, De la Diplomatie, exchange § 18. As there is usually no very great disparity of num- Where no probabers in the prisoners taken by the opposing belligerents in bility of the course of the war, it is the more modern custom for each an captor to support those who may fall into his hands till an exchange can be effected, and a cartel for this purpose is usually negotiated at the earliest possible opportunity. It, however, sometimes happens that so very large a number are taken by one party, as to leave no probability of an immediate exchange. The captor is then left the alternative to support them or to release them on parole. But should they refuse to give their parole, or should their own Government forbid their doing so? In the first case they must suffer the consequences of their own obstinacy; and, in the second case, their own Government has no right to forbid their release on parole, unless at the same time it provides the means for their support during their imprisonment. Attempts have sometimes been made to annul such engagements, and to force released prisoners of war to take up arms again in the same campaign, in direct violation of their parole. Such an act on the part of a belligerent Government is utterly futile as a protection to soldiers who may thus be made to violate their parole, and is an evidence of ignorance or semi-barbarism of the Government making such a declaration. In the war between the United States and the republic of Mexico the Mexican authorities not only attempted by proclamation to induce such of their soldiers as had been released by the Americans on parole to regard that obligation as null and void, but in some cases their unexchanged prisoners were actually forced to re-enter the ranks and fight. Many others, under the promise of plunder, were induced to organise themselves into guerrilla bands under robber chiefs, who were furnished with military commissions from the Government. Such attempts to violate the ordinary rules of war not only justify, but require prompt and severe punishment. Accordingly, General Scott announced his intention to hang everyone who should be retaken after thus violating his parole of honour. In making further releases on parole he required, in addition to the ordinary military pledge, the sanctity of a religious oath, administered by the Mexican clergy.' liv. vi. § 9; Scott, United States Army Regulations of 1825, §§ 709, 716. Cong. Doc., 30 Cong., 1 Sess. H. R. Ex. Doc., No. 56, p. 245; May he § 19. Cases have sometimes occurred where a general has kill them taken so large a number of prisoners that he cannot keep cases? them with safety, or cannot supply them with food, and is in certain Useless defence of a place satisfied that, if released on their parole, they would not respect it. If he has not the means of keeping his prisoners, and can safely put them on parole, he is, of course, bound to release them. But the question arises, if he cannot safely do this, and has no means to subsist them, what is he to do? Must he release them, to the imminent danger of his own security, or to his certain destruction, or, will the law of selfdefence justify him in putting them to death? If his own safety is incompatible with that of an enemy—even of an enemy who has submitted-will his duty to his own State justify him in destroying that enemy? The extreme case here supposed can seldom, if ever, happen; the answer must be elicited from the arguments in paragraph 7. § 20. It was an ancient maxim of war, that a weak garrison forfeit all claim to mercy on the part of the conqueror, when, with more courage than prudence, they obstinately persevere in defending an ill-fortified place against a large army, and when, refusing to accept of reasonable conditions offered to them, they undertake to arrest the progress of a power which they are unable to resist. Pursuant to this maxim, Cæsar answered the Aduatici that he would spare their town, if they surrendered before the battering-ram touched their walls. But, though sometimes practised in modern warfare, it is generally condemned as contrary to humanity and inconsistent with the principles which, among civilised and Christian nations, form the basis of the laws of It is sometimes said, that where a garrison makes an Grotius, De Jure Bell. ac Pac., lib. iii. cap. xxiii. §§ 6-10; Riquelme, сар. хіі. till the enemy consumed his strength in the operation of the siege, and wasted the most favourable season for conducting the campaign. In 1760 General Landolm, on appearing before Breslau to besiege that place, informed the governor (inter alia) that in case of obstinacy he could expect no reasonable terms; that the place was a mercantile town, not a fortress; and that he could not defend it without contravening the laws of war. The governor, Count Tavenzien, respected these laws, but did not the less defend the place. He replied that, being surrounded with work and wet ditches, it was to be considered a place of strength, and not merely a mercantile town, that the king had ordered him to defend it to the last extremity, and that he was not frightened at the general's threats to destroy the town, for he was not entrusted with the care of the houses but of the fortifications. The town was most bravely defended, and Landolm eventually was forced to withdraw. In case a place is closely besieged it is customary for the besieging general to offer to the garrison. honourable terms of capitulation; and if they refuse these terms, and the place is carried by force, they may be compelled to surrender at discretion, and the captor may treat such prisoners with all the severity of the law of war. But that law, says Vattel, can never extend so far as to give a right to take away the life of an enemy who lays down his arms, unless he has been guilty of some crime against the conqueror. Where, however, the resistance is not only evidently fruitless and without any reasonable object, but springs from obstinacy instead of firmness of valour, the officer so resisting is guilty of one of the greatest of crimes-the useless sacrifice of human life; and not only does he deserve to be treated with extreme severity by the captor, but also his own Government should see that he be justly dealt with for so serious an offence. But the resistance in such a case must be obviously useless, and known to be such when it is made. If there is any probability of success he is justifiable in holding out to the last extremity.' § 21. We do not, at the present day, often hear, when a Sacking a town is carried by assault, that the garrison is put to the town 1 Vattel, Droit des Gens, liv. iii. ch. viii. § 143; Bynkershoek, Quæst. Jur. Pub., lib. i. cap. iii.; Grotius, De Jure Bell, ac Pac., lib. iii. cap. iv. § 13; cap. xi. § 16. captured Remarks sword in cold blood, on the plea that they have no right to quarter. Such things are no longer approved or countenanced by civilised nations. But we sometimes hear of a captured town being sacked, and the houses of the inhabitants being plundered, on the plea that it was impossible for the general to restrain his soldiery in the confusion and excitement of storming the place; and, under that safer name of plunder, it has sometimes been attempted to veil all crimes which man, in his worst excesses, can commit ; horrors so atrocious that their very atrocity preserves them from our full execration, because it makes it impossible to describe them.1 It is true that soldiers sometimes commit excesses which their officers cannot prevent; but, in general, a commanding officer is responsible for the acts of those under his orders. Unless he can control his soldiers he is unfit to command them. The most atrocious crimes in war, however, are usually committed by militia, and volunteers, suddenly raised from the population of large cities, and sent into the field before the general has time or opportunity to reduce them to order and discipline. In such cases the responsibility of their crimes rests upon the State which employs them, rather than upon the general who is, perhaps, unwillingly, obliged to use them.2 § 22. The truth of these remarks is illustrated by the war of Napier of the Spanish Peninsula. None of the generals in that war pretended, for a moment, that the garrisons and inhabitants 1 Sir Arthur Wellesley, writing to Lord Castlereagh in 1809, remarks that it is impossible to describe the irregularities and outrages committed by the British troops. He considers that there ought to be in the army a regular provost establishment All the foreign armies have such an establishment. The French gendarmerie nationale are to the amount of forty or fifty with each corps. The Spaniards have their police militia to a still larger amount. While we,' says he, who require such an aid more, I am sorry to say, than any other nation of Europe, have nothing of the kind.' But now, by the Army Act, 1881 (§ 74), for the prompt repression of all offences which may be committed abroad, provost marshals with assistants may from time to time be appointed by the general order of the general officer commanding a body of forces. A provost marshal, or his assistants, may at any time arrest and detain for trial persons subject to military law committing offences, and may also carry into execution any punishments to be inflicted in pursuance of a court martial, but shall not inflict any punishment of his or their own authority. These marshals are distinct from the regimental or garrison police. 2 Kent, Com. on Am. Law, vol. i. pp. 92, 93 ; Pinheiro Ferreira, Notes sur Martens, tome ii. note 77; Riquelme, Derecho Púb. Int., lib. i. tit. i. сар. хіі. |