"23. Private citizens are no longer murdered, enslaved, or carried off to distant parts, and the inoffensive individual is as little disturbed in his private relations as the commander of the hostile troops can afford to grant in the overruling demands of a vigorous war.

"24. The almost universal rule in remote times was, and continues to be with barbarous armies, that the private individual of the hostile country is destined to suffer every privation of liberty and protection and every disruption of family ties. Protection was, and still is with uncivilized people, the exception.

"25. In modern regular wars of the Europeans, and their descendants in other portions of the globe, protection of the inoffensive citizen of the hostile country is the rule; privation and disturbance of private relations are the exceptions." 2

Those liable to be made prisoners of war at the present time include (1) the regular armed forces of a belligerent, as members of the army and navy; (2) those who lawfully resist attack, as levies en masse; (3) those who are permitted to accompany the armed forces without forming a part of those forces, as newspaper correspondents, sutlers, contractors, etc.; (4) in exceptional cases persons who may be of special service to the enemy.

TREATMENT OF PRISONERS OF WAR.

149. (1) Prisoners of war are in the power of the hostile government and entitled to humane treatment, which includes respect for person, private property not of a military character, and private rights, and reasonable maintenance in accordance with rank.

(2) They may be interned, may be given fit opportunity to engage in remunerative labor, or may be paroled. (3) In order to secure the treatment accorded to prisoners of war, captured persons are under obligation to observe regulations, to give on request to the proper authority their true name and rank, and to observe the conditions of parole.

Appendix, arts. 22-25, p. 491.

Hague Convention, 1907, Iaws and Customs of War on Land, Appendix, pp. 537-540.

(4) Prisoners of war, if taken trying to escape, are liable to disciplinary punishment for attempting to escape; but if the attempt is successful, and they are subsequently recaptured, they are not to be punished for the previous act.

In early warfare any inhabitant of an enemy territory might be made a captive, might be put to death, might be enslaved, or might be ransomed. Each of these methods of treatment marks a stage in the development of warfare. Captives, being an impediment in the movement of an army, unless kept for sake of ransom, were often slain. Captives in large numbers were put to death during the fifteenth century. The captives made by armies even up to the seventeenth century were liable to be sent into slavery. The captives were regarded as property of the persons capturing them, and so late as 1863 Dr. Lieber felt called upon to state: "A prisoner of war, being a public enemy, is the prisoner of the government, and not of the captor." "4 It was not till about the time of Grotius that the more liberal treatment of prisoners of war became common. There had been from time to time, in very early days, limitations upon the exercise of capture in time of war. Even in the First and Second Punic Wars, exchange of prisoners and special consideration to certain private persons is recorded. Sallust denounces the putting to death of the inhabitants of a certain Numidian town by Marius as contrary to the rules of war. The fairness of treatment at one period might be followed by barbarities in the next, and these might extend to the entire population. In the mediæval period there was great difference in practice. Toward the end of the seventeenth century the subject of capture in war was considered by various publicists, and the principles were developed.

So late as 1785 the United States and Prussia provide by treaty "to prevent the destruction of prisoners of war." This treaty sets forth many principles which have subsequently been generally adopted."

4 Appendix, art. 74, p. 498.

5 Livy, XXII.

6 Jugurtha, c. 91.

7 "And to prevent the destruction of prisoners of war, by sending them into distant and inclement countries, or by crowding them into

The Hague Convention of 1907 provides with fullness for the treatment of prisoners of war. It provides that prisoners of war shall be in the power of the government, that they shall be humanely treated, the standard of their maintenance

close and noxious places, the two contracting parties solemnly pledge themselves to each other and to the world that they will not adopt any such practice; that neither will send the prisoners whom they make take from the other into the East Indies, or any other parts of Asia or Africa, but that they shall be placed in some part of their dominions in Europe or America, in wholesome situations; that they shall not be confined in dungeons, prison ships, nor prisons, nor be put into irons, nor bound, nor otherwise restrained in the use of their limbs; that the officers shall be enlarged on their paroles within convenient districts, and have comfortable quarters, and the common men be disposed in cantonments open and extensive enough for air and exercise, and lodged in barracks as roomy and good as are provided by the party in whose power they are for their own troops; that the officers shall also be daily furnished by the party in whose power they are with as many rations, and of the same articles and quality as are allowed by them, either in kind or by commutation, to officers of equal rank in their own army; and all others shall be daily furnished by them with such ration as they allow to a common soldier in their own service; the value whereof shall be paid by the other party on a mutual adjustment of accounts for the subsistence of prisoners at the close of the war; and the said accounts shall not be mingled with, or set off against any others, nor the balances due on them be withheld as a satisfaction or reprisal for any other article or for any other cause, real or pretended, whatever; that each party shall be allowed to keep a commissary of prisoners of their own appointment, with every separate cantonment of prisoners in possession of the other, which commissary shall see the prisoners as often as he pleases, shall be allowed to receive and distribute whatever comforts may be sent to them by their friends, and shall be free to make his reports in open letters to those who employ him; but if any officer shall break his parole, or any other prisoner shall escape from the limits of his cantonment, after they shall have been designated to him, such individual officer or other prisoner shall forfeit so much of the benefit of this article as provides for his enlargement on parole or cantonment. And it is declared, that neither the pretence that war dissolves all treaties, nor any other whatever, shall be considered as annulling or suspending this and the next preceding article; but, on the contrary, that the state of war is precisely that for which they are provided, and during which they are to be as sacredly observed as the most acknowledged articles in the law of nature or nations." Article 24, Treaty of Sept. 10, 1785.

8 Laws and Customs of War on Land, c. 2, Appendix, p. 538.

being determined by that of similar troops in the captor's forces. They are to be allowed to work, to have so much freedom as consistent with military necessity. Provision is made for gathering and furnishing information in regard to those in captivity and for preserving their property and other legal rights and for parole.

By the Hague Convention of 1907 prisoners of war are liable to necessary discipline in order that rules and regulations may be observed. It recognizes that it is natural that a prisoner of war not under parole should attempt to escape and provides that,

"Escaped prisoners, who are retaken before being able to rejoin their own army, or before leaving the territory occupied by the army which captured them, are liable to disciplinary punishment.

"Prisoners who, after succeeding in escaping, are again taken prisoners, are not liable to any punishment on account of the previous flight."

RELEASE OF PRISONERS.

150. Prisoners may be released conditionally or fully. (a) Prisoners may be released conditionally on parole, a verbal agreement, entered into by an individual of the enemy for himself, by which he pledges his honor that he will do or refrain from doing certain things in consideration of certain privileges or advantages. An officer may sometimes make such an agreement in behalf of his command.

(b) Prisoners of war are sometimes fully released on payment of ransom, in compensation for their discharge from custody.

(c) Or prisoners may be fully released by exchange, which consists in the mutual turning over by each government of a certain number of prisoners in accord with a special agreement, called a "cartel."

(d) Prisoners are at liberty when coming upon neutral soil, and when brought into neutral waters on a ship taken as prize, unless under stress.

Laws and Customs of War on Land, art. VIII, Appendix, p. 539.

(e) Prisoners are also at liberty on coming within the territory of their own state, if not under parole or other obligation.

(f) Prisoners are generally released under specific agreement at the close of war.

(a) "Prisoners of war may be set at liberty on parole if the laws of their country allow, and, in such cases, they are bound, on their personal honor, scrupulously to fulfill, both towards their own government and the government by whom they were made prisoners, the engagements they have contracted.

"In such cases their own government is bound neither to require of nor accept from them any service incompatible with the parole given.

"A prisoner of war cannot be compelled to accept his liberty on parole. Similarly the hostile government is not obliged to accede to the request of the prisoner to be set at liberty on parole.

"Prisoners of war, liberated on parole and recaptured bearing arms against the government to whom they had pledged their honor, or against the allies of that government, forfeit their right to be treated as prisoners of war, and can be brought before the courts." 10

A neutral power, which has interned within its territory troops belonging to the belligerent armies, may decide whether officers may be allowed liberty on their parole not to leave neutral territory without permission.11

(b) The release of prisoners of war on payment of ransom was quite common during the Middle Ages, but is now practically obsolete, although, in the instructions for the government of the armies of the United States in the field provision is made as follows: "The surplus number of prisoners of war remaining after an exchange has taken place is sometimes released, either for the payment of a stipulated sum of money,

10 Id. arts. X-XII, Appendix, p. 539. For full treatment, see, also, Ariga, La Guerre Russo-Japonaise, 114. Takahashi, Int. Law applied to Russo-Japanese War, 107–147.

11 Rights and Duties of Neutral Powers, art. XI, Appendix, p. 547.