§ 28. Deserters from the American army, having entered the service of
the enemy, suffer death, if they fall again into the hands of the United
States, whether by capture, or being delivered up to the American army;
and if a deserter from the enemy having taken service in the army of the
United States, is captured by the enemy, and punished by them with death
or otherwise, the United States do not consider it a breach against the
law and usages of war, requiring redress or retaliation.
§ 29. A prisoner of war is a public enemy, armed or attached to the
hostile army for active aid, having fallen into the hands of the captor,
either fighting or wounded, on the field or in the hospital, by
individual surrender or by capitulation.
All soldiers, of whatever species of arms; all men who belong to the
rising _en masse_ of the hostile country; all those who are attached to
the army for its efficiency, and promote directly the object of the war,
such as officers of the commissariat or teamsters, if captured; all
enemies who have thrown away their arms and ask for quarter; all
disabled men or officers on the field or elsewhere: all such persons are
prisoners of war, and as such exposed to the inconveniences as well as
entitled to the privileges of a prisoner of war.
§ 30. Moreover, citizens who accompany an army for whatever purpose,
such as sutlers, editors or reporters of journals, or contractors, if
captured, are prisoners of war, and may be detained as such.
The chief of the hostile government, the monarch and members of the
hostile reigning family, male or female, the chief officers of the
hostile government, its diplomatic agents, and all persons who are of
particular and singular use and benefit to the hostile army or its
government, are, if captured on belligerent ground, and if unprovided
with a safe conduct granted by the captor’s government, prisoners of
war.
§ 31. The enemy’s army surgeons, apothecaries, hospital nurses, hospital
servants and superintendents, and chaplains, if they fall into the hands
of the American army, are not prisoners of war, unless the commander has
reasons to retain them. In such cases, or if, at their own desire, they
are allowed to remain with their captured companions, they are treated
as prisoners of war.
American generals are permitted, if they see fit, to exchange captured
surgeons and others belonging to the medical staff.
§ 32. A prisoner of war is subject to no punishment for being a public
enemy, nor is any revenge wreaked upon him by the intentional infliction
of any suffering, or disgrace, by cruel imprisonment, want of food, by
mutilation, death, or any other barbarity.
§ 33. At all periods of history, ancient or modern, governments have
employed as soldiers people of different races or color. Every European
nation, having an opportunity of enlisting men of different races,
actually does so, without exception.
So soon as a man is armed by a sovereign government, and takes the
soldier’s oath of fidelity, he is a belligerent; his killing, wounding,
or other warlike acts, are no individual crimes or offences. Thus, in
ancient times, the _sacramentum_, changed the homicide of an enemy, from
murder to a lawful act.
The Law of Nations knows of no distinction of color, and if an enemy of
the United States should enslave and sell any captured persons of their
army, it would be a case for the severest retaliation, if not redressed
upon complaint.
The United States cannot retaliate by enslavement; therefore death must
be the retaliation for this crime against the Law of Nations.
§ 34. The prisoner of war remains answerable for the crimes committed
against the captor’s army or people, committed before he was captured
and for which he has not been punished by his own authorities. The
prisoner of war remains liable to the infliction of retaliatory
measures.
§ 35. No regiment or division of troops has the right to declare that
for a single occasion it will not give, and therefore will not receive,
quarter.
A commander is permitted to direct his troops to give no quarter, in
great straits only, when his own salvation makes it impossible to cumber
himself with prisoners.
[The chief commander may permit a regiment or division to declare, for
the duration of the war, that it will not give, and therefore does not
expect, quarter.]
Troops that give no quarter, have no right to kill enemies already
disabled on the ground, or prisoners captured by other troops.
It is against the usage of modern war, because it is savage, to resolve,
in hatred and revenge, to give no quarter.
All troops of the enemy, known or discovered to give no quarter to any
portion of the army, receive none.
§ 36. The Law of Nations allows every sovereign government to make war
upon another sovereign state, and, therefore, admits of no different
rules regarding the treatment of prisoners of war, although they may
belong to the army of a government which the captor may consider as a
wanton and unjust assailant; nor has the defensive government the right
to proclaim that it will ill-treat the prisoners it may make, against
the rules and laws of regular warfare.
§ 37. Modern wars are not internecine wars, in which the killing of the
enemy is the object. The destruction of the enemy, in modern war, and,
indeed, modern war itself, are means to obtain that object of the
belligerent which lies beyond the war.
Unnecessary or revengeful destruction of life, is not lawful.
Outposts, sentinels, or pickets, are not fired upon, except to drive
them in, or when a positive order, special or general, has been issued
to that effect.
The use of poison in any manner, be it to poison wells, or food, or
arms, is wholly excluded from modern warfare. He that uses it, puts
himself out of the pale of the law and usages of war. Thousands of years
ago it was held that no one who fears a supreme avenger of wrong, will
poison his arrow.
§ 38. Whoever intentionally inflicts additional wounds on an enemy
already disabled from fighting, or kills such an enemy, or who orders or
encourages soldiers to do so, shall suffer death if duly convicted,
whether he belongs to the army of the United States, or is an enemy
captured after having committed his misdeed.
§ 39. Arms, ammunition, horses, wagons, and implements of war, as well
as provision and clothing, taken on the battle-field, or captured
otherwise, belong to the United States.
All regulation arms found upon prisoners of war belong to the United
States; but small arms, not usually belonging to the regulation arms of
the respective troops, such as daggers or private pistols, belong to the
captor or captors.
If any dispute arises among the captors regarding the ownership or fair
division of the latter, the commissioned officer next in rank above the
disputants, on the spot where the dispute arises, shall decide the
dispute, and the decision shall be final.
§ 40. It is the usage in European armies that money and all valuables on
the person of a prisoner, such as watches or jewelry, as well as extra
clothing, belong to the captor; but it distinguishes the army of the
United States that the appropriation of such valuables or money is
considered dishonorable, and not suffered by the officers.
Nevertheless, if large sums are found upon the persons of prisoners,
they shall be taken from the prisoners, and appropriated for the army.
Nor can prisoners claim, as private property, large sums found and
captured in their train, although it had been placed in the private
luggage of the prisoners. Such luggage must always be searched.
§ 41. A prisoner of war, being a public enemy, is the prisoner of the
government, and not of the captor. No ransom can be paid by a prisoner
of war to his individual captor, or to any officer in command. The
government alone releases captives, according to rules prescribed by
itself.
§ 42. Prisoners of war are subject to the confinement or imprisonment
deemed necessary on account of safety, but they are subjected to no
other intentional suffering or indignity. The confinement, or mode of
releasing the prisoner, may be varied during his captivity according to
the demands of safety.
§ 43. Prisoners of war are fed upon plain and wholesome food, according
to circumstances, and are treated with all humanity.
They may be required to work for the benefit of the captor’s government,
according to their rank and condition.
They may be temporarily assigned, under proper restrictions, to private
citizens willing to take them, and with whom they may earn wages, and
thus pay for their expenses.
§ 44. A prisoner of war, who escapes, may be shot, or otherwise killed
in his flight; but neither death nor any other punishment is inflicted
upon him simply for his attempt to escape, which the law of war does not
consider a crime. Stricter means of security are used after an
unsuccessful attempt at escape.
If, however, a conspiracy is discovered, the purpose of which is a
united or general escape, the conspirators are rigorously punished, even
with death, as capital punishment is also inflicted upon prisoners of
war discovered to have plotted rebellion against the authorities of the
captors, whether in union with fellow-prisoners or other persons.
§ 45. If prisoners of war, having given no pledge nor made any promise,
on their honor, forcibly, or otherwise escape, and are captured again in
battle, after having rejoined their own army, they are not punished for
their escape, and are treated as simple prisoners of war, although they
will be subjected to stricter confinement.
§ 46. Every captured wounded enemy is medically treated, according to
the ability of the medical staff, like a wounded friend.
§ 47. Honorable men, when captured, will abstain from giving to the
enemy information concerning their own army, and the modern law of war
permits no longer the use of any violence against prisoners, in order to
extort the desired information, or to punish them for having given false
information.
ARMED ENEMIES NOT BELONGING TO THE HOSTILE ARMY. SCOUTS. ARMED PROWLERS.
WAR-REBELS.
§ 48. Men, or squads of men, who commit hostilities, whether by
fighting, or inroads for destruction or plunder, or by raids of any
kind, without commission, without being part and portion of the
organized hostile army, and without sharing continuously in the war, but
who do so with intermitting returns to their homes and avocations, or
with the occasional assumption of the semblance of peaceful pursuits,
divesting themselves of the character or appearance of soldiers, such
men, or squads of men, are not public enemies, and, therefore, if
captured, not entitled to the privilege of a prisoner of war, but are
treated summarily as highway robbers or pirates.
§ 49. Nor is the privilege of the prisoner of war extended to single
armed prowlers, by whatever names they may be called, or to persons of
the enemy’s territory, who steal within the lines of the hostile army,
for the purpose of robbing, killing, destroying bridges, roads, or
canals, or of robbing or destroying the mail, or of cutting the
telegraph wires. If captured, they are dealt with as pirates at sea are
treated.
§ 50. Scouts, that is, single soldiers, disguised in the dress of the
country, or in the uniform of the army hostile to their own, detailed or
organized to obtain information, if captured within the lines of the
captor, are treated as spies, and suffer death.
§ 51. Persons within an occupied territory, that rise in arms against
the occupying or conquering army, or against the authorities established
by the same, are war-rebels, and suffer death, whether they rise singly,
in small or large bands, and whether called upon to do so by their own,
but expelled, government or not. If captured, they are not prisoners of
war; nor are they, if discovered and secured before their conspiracy has
matured to an actual rising, or to armed violence.
The Partisan proper, belonging to the army, although acting in a corps
separate from the main body, if captured, is a prisoner of war.