This pledge refers only to the active service in the field against the paroling belligerent or his allies actively engaged in the same war. These cases of breaking the parole are patent acts, and can be visited with the punishment of death; but the pledge does not refer to internal service, such as recruiting or drilling the recruits, fortifying places not besieged, quelling civil commotions, fighting against belligerents unconnected with the paroling belligerents, or to civil or diplomatic service for which the paroled officer may be employed. “131. If the government does not approve of the parole, the paroled officer must return into captivity, and should the enemy refuse to receive him he is free of his parole. "132. A belligerent government may declare, by a general order, whether it will allow paroling and on what conditions it will allow it. Such order is communicated to the enemy. “133. No prisoner of war can be forced by the hostile government to parole himself, and no government is obliged to parole prisoners of war or to parole all captured officers, if it paroles any. As the pledging of the parole is an individual act, so is paroling, on the other hand, an act of choice on the part of the belligerent. "134. The commander of an occupying army may require of the civil officers of the enemy, and of its citizens, any pledge he may consider necessary for the safety or security of his army, and upon their failure to give it he may arrest, confine, or detain them." Instructions for the Government of Armies of the United States in the "ARTICLE X. Prisoners of war may be set at liberty on parole if the laws of their country authorize it, and, in such a case, they are bound, on their personal honour, scrupulously to fulfill, both as regards their own Government and the Government by whom they were made prisoners, the engagements they have contracted. "In such cases, their own Government shall not require of nor accept from them any service incompatible with the parole given. "ARTICLE XI. A prisoner of war can not be forced to accept his liberty on parole; similarly the hostile Government is not obliged to assent to the prisoner's request to be set at liberty on parole. "ARTICLE XII. Any prisoner of war, who is liberated on parole and recaptured, bearing arms against the Government to whom he had pledged his honor, or against the allies of that Government, forfeits his right to be treated as a prisoner of war, and can be brought before the courts." Convention respecting the Laws and Customs of War on Land, The Hague, "In pursuance of the suggestion made by General Lee, the Department asked for the issuance of instructions that you be released from imprisonment on the condition that you would leave the Island of Cuba and not return until the present war is terminated. Upon your signing an agreement to that effect you were released. The Department regards the condition of your release as a binding parole engagement between yourself and the Government of Spain for the infringement of which you would alone be responsible.” Mr. Sherman, Sec. of State, to Mr. Sanguily, Feb. 1, 1898, 225 MS. Dom. 5. REPATRIATION. § 1131. "After the conclusion of peace, the repatriation of prisoners of war shall take place as speedily as possible." Article XX., Convention respecting the Laws and Customs of War on The United States having agreed under the capitulation of Santiago de Cuba to return the Spanish troops to Spain, an understanding was sought through the British ambassador at Madrid with the Spanish Government that the transports would be considered as neutralized, both on the inward and on the outward voyage, no belligerent act to be committed by or upon them; and that they would not be subjected to port charges, unless pilotage, as to which an express understanding was desired. Immediately afterwards an offer for the transportation of the Spanish prisoners was received from the Spanish Trans-Atlantic Line. The United States agreed to give to the ships of that line having only such armament as merchant ships usually carry, safe conduct on the inward and the outward voyage, provided that they committed no unneutral act. But, whatever the nationality of the ships, the United States proposed that Spain should provide medical and surgical attendance for prisoners on the transports; that the United States should furnish medical supplies and rations; but that Spain should designate one officer for each ship as commissary to see that the rations were sufficient, and that Spanish officers should assume the police regulation of the ships. The Spanish Government agreed to these terms, including the exemption of the transports from port dues, except pilotage. It was also agreed that if American or neutral ships were employed, a quarantine station, in case of contagion, should be established on shore, so that the ships could depart promptly. A formal understanding with the Spanish Government was subsequently rendered unnecessary by the contract entered into with the Spanish Trans-Atlantic Company, under which the company agreed to take the officers and men from Santiago de Cuba to Spain for a certain sum for each individual, covering transportation, subsistence, and delivery on shore. The United States, on the other hand, gave to the ships while sailing under the contract to Santiago de Cuba and thence to Spain safe conduct against the acts of persons under the jurisdiction of the United States. For. Rel. 1898, 990, 992. As to the repatriation of prisoners under the treaty of peace between the 6. SPIES, WAR-TRAITORS, WAR-REBELS. § 1132. "88. A spy is a person who secretly, in disguise or under false pretense, seeks information with the intention of communicating it to the enemy. "The spy is punishable with death by hanging by the neck, whether or not he succeed in obtaining the information or in conveying it to the enemy." Instructions for the Government of Armies of the United States in the "89. If a citizen of the United States obtains information in a legitimate manner, and betrays it to the enemy, be he a military or civil officer, or a private citizen, he shall suffer death. "90. A traitor under the law of war, or a war-traitor, is a person in a place or district under martial law who, unauthorized by the military commander, gives information of any kind to the enemy, or holds intercourse with him. "91. The war-traitor is always severely punished. If his offense consists in betraying to the enemy anything concerning the condition, safety, operations, or plans of the troops holding or occupying the place or district, his punishment is death. "92. If the citizen or subject of a country or place invaded or conquered gives information to his own government, from which he is separated by the hostile army, or to the army of his government, he is a war-traitor, and death is the penalty of his offense. "98. All unauthorized or secret communication with the enemy is considered treasonable by the law of war. "Foreign residents in an invaded or occupied territory or foreign visitors in the same can claim no immunity from this law. They H. Doc. 551-vol 7-16 may communicate with foreign parts or with the inhabitants of the hostile country, so far as the military authority permits, but no further. Instant expulsion from the occupied territory would be the very least punishment for the infraction of this rule." Instructions for the Government of Armies of the United States in the "93. All armies in the field stand in need of guides, and impress them if they can not obtain them otherwise. "94. No person having been forced by the enemy to serve as guide is punishable for having done so. "95. If a citizen of a hostile and invaded district voluntarily serves as a guide to the enemy, or offers to do so, he is deemed a wartraitor, and shall suffer death. "96. A citizen serving voluntarily as a guide against his own country commits treason, and will be dealt with according to the law of his country. 97. Guides, when it is clearly proved that they have misled intentionally, may be put to death." Instructions for the Government of Armies of the United States in the "102. The law of war, like the criminal law regarding other offenses, makes no difference on account of the difference of sexes, concerning the spy, the war-traitor, or the war-rebel. "103. Spies, war-traitors, and war-rebels are not exchanged according to the common law of war. The exchange of such persons would require a special cartel, authorized by the government, or, at a great distance from it, by the chief commander of the army in the field. "104. A successful spy or war-traitor, safely returned to his own army, and afterwards captured as an enemy, is not subject to punishment for his acts as a spy or war-traitor, but he may be held in closer custody as a person individually dangerous.” Instructions for the Government of Armies of the United States in the "Article 88 of the United States Instructions for the Government reads: of Armies in the Field,' promulgated April 24, 1863, 88. A spy is a person who secretly, in disguise or under false pretense, seeks information with the intention of communicating it to the enemy. The spy is punishable with death by hanging by the neck, whether or not he succeed in obtaining the information or in conveying it to the enemy.' Bluntschli, while embodying this rule in his tentative code, comments [Droit Int. Codifié, sec. 628] on it thus: The penalty should not, however, be applied except in the more dangerous cases; it would in most cases be out of all proportion with the crime. The usage has become less barbarous, and it suffices the more frequently to condemn them [spies] to close confinement or other analogous penalties.' He further says, speaking of the German military regulations of 1870, and apparently on the authority of Rolin Jaequemyns: The menace of death is often not avoidable, but should not however be applied except in cases where the culpability is really grave.' From these citations it may be inferred Bluntschli holds that the severity of the punishment in each particular case should depend upon the resultant danger, a test which a military tribunal may naturally be presumed to apply to the facts upon which it reaches a decision. It does not appear practicable to draw a line between the more dangerous and less dangerous cases, and our own Regulations of 1863 do not attempt it." Mr. Gresham, Sec. of State, to Mr. Denby, min. to China, No. 1033, March 21, 1895, MS. Inst. China, V. 162. "ARTICLE XXIX. An individual can only be considered a spy if, acting clandestinely, or on false pretences, he obtains, or seeks to obtain information in the zone of operations of a belligerent, with the intention of communicating it to the hostile party. "Thus, soldiers not in disguise who have penetrated into the zone of operations of a hostile army to obtain information are not considered spies. Similarly, the following are not considered spies: Soldiers or civillians, carrying out their mission openly, charged with the delivery of despatches destined either for their own army or for that of the enemy. To this class belong likewise individuals sent in baloons to deliver despatches, and generally to maintain communication between the various parts of an army or a territory. "ARTICLE XXX. A spy taken in the act can not be punished without previous trial. "ARTICLE XXXI. A spy who, after rejoining the army to which he belongs, is subsequently captured by the enemy, is treated as a prisoner of war, and incurs no responsibility for his previous acts of espionage." Convention respecting the Laws and Customs of War on Land, The On April 15, 1904, Count Cassini, Russian ambassador at Washington, stated, by instruction of his Government, that "in case neutral vessels, having on board correspondents who may communicate war news to the enemy by means of improved apparatus not yet provided for by existing conventions, should be arrested off the coast of Kwantung or within the zone of operations of the Russian fleet, such correspondents shall be regarded as spies and the vessels provided |