Cyclopædia of Political Science, Political Economy, and the Political History of the United States
PRISONERS OF WAR. Persons coming under any of the following heads can not be regarded as prisoners of war, namely: those who are connected with the service of the army, but who do not form part of the combatants; innocent subjects of the enemy who have not taken part in the hostilities; soldiers who have committed acts of violence without orders from their commanders; those who have spontaneously, without order from the state, armed themselves against the enemy; spies, deserters and fugitives. These classes do not include surgeons, chaplains and sutlers, quartermasters, drummers and fifers; they form part of the combatants, and are considered as belonging to the active army; they are likened to soldiers, and classified as prisoners of war. (In pursuance of the convention agreed upon Aug. 22, 1864, between nearly all the countries of Europe, and completed in 1868 by additional articles, all medical persons, and even the wounded in ambulances, as well as chaplains and nurses, are considered as non-combatants. In the war of 1870-71 complaints were made on both sides of infractions of these treaties, but we do not believe that these infractions were voluntary, even supposing that the complaints were well founded. M. B.)—"Even in the best days of pagan antiquity, the laws of war, from which the law of conquest was derived, said, with inflexible severity: 'For the possessions of the enemy, confiscation and pillage; for the person of the enemy, slavery or death.' But, under the influence of Christian principles, customs have become modified. The laws which our fathers, after having conquered the Roman empire, made in fire, in action, in impetuosity, in the pride of victory, they softened; these laws were harsh, they made them impartial. The Burgundians, the Goths and the Lombards always desired that the Romans should remain a conquered people; the laws of Euric, of Gondebaud and of Rotharis made the Romans and barbarians fellow-citizens." (Montesquieu, Esprit des lois, book x., chap. 3.)
—To slay an enemy after the battle, or to reduce him to slavery, is no longer permitted by international law; to make him lay down his arms, and to hold him as prisoner of war until the re-establishment of peace (unless a free retreat be granted him, either at once or at a stated time), are what the laws of modern warfare prescribe.
—The effects of captivity date from the moment of surrender. The prisoners are then placed in the interior of the country under the surveillance and authority of the conqueror, and restored to liberty either unconditionally or on bail, or for a ransom, or in exchange.
—The decree of May 25, 1793, breathing the spirit of human dignity, declares that no person taken from the enemy shall be forced to serve in the army of the state which has taken him.
—The law of June 20, 1792, places prisoners of war, in France, under the safeguard of the nation, and orders that they shall be protected, the same as French citizens, against all insult or outrage. This law contains also other orders full of humanity.
—A decree of April 4, 1811, says: Any prisoner of war, having the rank of an officer, and any hostage, who, after having given his parol, violates it, shall, if recaptured, be regarded and treated like a soldier, as to pay and rations, and confined in a citadel, fort or castle.
—The rules relating to the exchange of prisoners have been established by several legislative provisions. Until very recently, it was customary to agree as to the exchange and the pecuniary ransom according to rank, at the same time, in order to settle the account in case of an inequality in the number or rank of the prisoners. We find an example of this in the cartel of March 12, 1780, between France and England. But France set aside all ransom during the war of the revolution, by decreeing, May 25, 1793, that only an exchange of man for man and rank for rank should be allowed. (See
—We see that legislation with regard to prisoners of war in Europe is founded upon generous sentiments. If the fatal laws of war permit a belligerent power to make prisoners and to hold them, whether to prevent them from again bearing arms or to weaken the enemy, or even to lead them to accept equitable conditions of peace, they do not permit violence or ill-treatment toward them so long as they do not disturb the quiet of the state. It is also customary to allow a greater degree of liberty to higher officers than to non-commissioned officers and soldiers. They are, as a general rule, placed upon honor (parol) in a certain town, and it is not unusual to see them sent back to their own country upon the promise of paying a ransom, and virtually under engagement not to bear arms against the government which has restored them to liberty.
—The victorious state can not, however, be disarmed against prisoners of war and their breach of parol. Thus, besides the penalty which we have cited above in the decree of April 4, 1811, to punish violations of sworn faith, it was necessary to provide for cases in which prisoners of war, taking advantage of their number, might organize a resistance against lawful authority. This was done by the decree of the 17th of frimaire, year XIV., which orders as follows: "All mutiny, resistance to the police or the national guard, all plots of which prisoners of war may be guilty, shall be punished by death."
—Outside of this, the life of a prisoner of war is sacred, inviolable, according to law. The distinction is easily understood. In the later case, there is no longer any question of the application of the laws of war, but of the defense of society and the repression of a crime under the principles of common law. Publicists, however, have propounded this question: "Are there cases in which the care of one's own safety, and the danger to be incurred, will not permit us either to make prisoners or to retain those whom we have already made?" This question recalls a frightful episode of the French-Egyptian campaign. The French army had just taken Jaffa and sacked it during thirty hours of pillage and massacre. There remained several thousand prisoners who could not be kept for want of food, nor yet sent back to swell the ranks of the enemy. The unfortunate wretches stood on the shore with their hands tied behind them, waiting for their doom to be pronounced. "Bonaparte," says M. Thiers (Histoire de la Révolution, vol. viii., p. 401), "determined on a terrible measure, the only cruel act of his life. Transported to a barbarous country, he had involuntarily adopted the customs (morals?) of it; he caused the remaining prisoners to be put to death. The army, appalled but obedient, completed the execution with which it had been charged." "Who shall answer to posterity for so horrible an act? Those who commanded it," adds M. Dalley ("Natural and International Law," No. 123), "unless they tried every means, even in face of the enemy, to prevent it. For the principle is self-evident, that war, even the most just, can legalize only such injury to the enemy as is absolutely necessary."
—Can a monarch and his family be made prisoners of war? International law has decided in the affirmative. Nevertheless, it has long been customary among the civilized powers of Europe, first, to consider it as contrary to the laws of war to take aim at a hostile sovereign or prince of the blood royal; secondly, to treat his family with distinction by exempting them from detention; thirdly, to alleviate for the hostile sovereign personally, or for his family, the evils of war, in all respects which would not affect the result of military operations. (It seems to us that there should be no question as to declaring women and children and non-combatants prisoners of war, even in the case of queens and princesses. Nevertheless, if a queen regnant should command an army, she would be justly considered a combatant. M. B.)
—On the principle that war alone can make prisoners, as cause produces effect, it follows that any act by which the subject of a nation should be declared prisoner of war, even though he had not taken an active part in the hostilities, can be regarded only as a violent measure, in opposition to all the principles of civilization. Such is the provision of the decree of Berlin (Nov. 21, 1806), stating that any English individual in the countries occupied by France or its allies, is declared a prisoner of war. Such a principle, poorly veiled under the pretense of reprisal, demonstrates how far contempt of international law may carry a conqueror irritated by seeing limits put to his ambition. This sad example is happily the only one presented to us by modern history. It is proper to say, that since the war of 1870 the Germans have been driven away, even when a long time settled, and that any of them found upon the territory would have been made prisoners.)
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