The Government of the United States having acknowledged the independence of Texas, and Texas being at war with Mexico, if a citizen of the United States captured when with a Texas army by Mexican forces should be treated in Mexico as a rebel and not as a prisoner of war, on the ground that Mexico had not acknowledged Texas as a belligerent, "after his release has been demanded by this Government, consequences of the most serious character would certainly ensue." Mr. Webster, Sec. of State, to Mr. Thompson, Apr. 5, 1842, 6 Webster's For acknowledgment of liberation of such prisoners, see same to same, See supra, § 481. "By the law and practice of civilized nations, enemies' subjects taken in arms may be made prisoners of war; but every person found in the train of an army is not to be considered as therefore a belligerent or an enemy. In all wars, and in all countries, multitudes of persons follow the march of armies, for the purpose of traffic or from motives of curiosity, or the influence of other causes, who neither expect to be, nor reasonably can be, considered belligerents. Whoever, in the Texan expedition to Santa Fé, was commissioned or enrolled for the military service of Texas, or, being armed, was in the pay of that Government, and engaged in an expedition hostile to Mexico, may be considered as her enemy, and might lawfully, therefore, be detained as prisoner of war. This is not to be doubted; and, by the general practice of modern nations, it is true that the fact of having been found in arms with others admitted to be armed for belligerent purposes raises a presumption of hostile character. In many cases, and especially in regard to European wars in modern times, it might be difficult to repel the force of this presumption. It is still, however, but a presumption; because is nevertheless true that a man may be found in arms with no hostile intentions. He may have assumed arms for other purposes, and may assert a pacific character, with which the fact of his being more or less armed would be entirely consistent. In former and less civilized ages, cases of this sort existed without number in European society. When the peace of communities was less firmly established by efficient laws, and when, therefore, men often traveled armed for their own defence, or when individuals, being armed according to the fashion of the age, yet often journeyed under the protection of military escorts or bodies of soldiers, the possession of arms was no evidence of hostile character, circumstances of the times sufficiently explaining such appearances consistently with pacific intentions. And circumstances of the country may repel the presumption of hostility, as well as circumstances of the times, or the manners of a particular age. "There would be no meaning in that well-settled principle of the law of nations which exempts men of letters and other classes of noncombatants from the liability of being made prisoners of war, if it were an answer to every claim for such exemption to say that the person making it was united with a military force, or journeying under its protection. As to the assertion that it is against the law of Mexico for foreigners to pass into it across the line of Texas, it is with no little surprise that the Mexican secretary of state is found to assign this reason for making Mr. Kendall a prisoner." in Mr. Webster, Sec. of State, to Mr. Thompson, Apr. 5, 1842, 6 Webster's "54. A hostage is a person accepted as a pledge for the fulfillment of an agreement concluded between belligerents during the war, or consequence of a war. Hostages are rare in the present age. “55. If a hostage is accepted, he is treated like a prisoner of war, according to rank and condition, as circumstances may admit.” Instructions for the Government of Armies of the United States in the 2. TREATMENT. § 1128. 66 Prisoners of war are to be considered as unfortunate and not as criminal, and are to be treated accordingly, although the question of detention or liberation is one affecting the interest of the captor alone, and therefore one with which no other government ought to interfere in any way; yet the right to detain by no means implies the right to dispose of the prisoners at the pleasure of the captor. That right involves certain duties, among them that of providing the prisoners with the necessaries of life and abstaining from the infliction of any punishment upon them which they may not have merited by an offense against the laws of the country since they were taken." Mr. Webster, Sec. of State, to Mr. Ellis, Feb. 26, 1842, MS. Inst. Mex. "The law of war forbids the wounding, killing, impressment into the troops of the country, or the enslaving or otherwise maltreating of prisoners of war, unless they have been guilty of some grave crime; and from the obligation of this law no civilized state can discharge itself." Mr. Webster, Sec. of State, to Mr. Thompson, min. to Mexico, Apr. 5, 1842, Webster's Works, VI. 427, 437. "On the announcement of the ratification of the treaty of Ghent there was naturally some disorder among the American prisoners of war confined at Dartmoor, near Plymouth, who were not as yet released. On April 6, 1815, there was some slight disturbance, and indications of an attempt, at least of one or two, to break loose. The captain on guard directed the alarm bell to be sounded, which caused a rush of prisoners, most of whom had no part whatever in the disorder, to the place of alarm. He then ordered the prisoners to their yards, and directed a squad of soldiers to charge them. The crowd of prisoners was great; they would not, and indeed, in the crush of the narrow passage in which they were, could not, immediately retreat and it was said by some of the witnesses that stones were thrown from among them at the soldiers, though this last fact was negatived by a great preponderance of testimony. An order to fire was given, though by whom it was not clearly shown, and this firing, on a perfectly defenseless crowd, was continued until seven persons were killed, thirty dangerously and thirty slightly wounded. A commission consisting of Mr. F. S. Larpent, representing the British Government, and Mr. Charles King, deputed by the American mission in London, having visited the scene of action and examined into the facts, reported that this firing (at the outset) was justifiable in a military point of view, but that it is very difficult to find any justification for the further renewal and continuance of the firing," which is attributed to the state of individual irritation and exasperation on the part of the soldiers who followed the prisoners into their yards. Lord Castlereagh, on receiving this report, expressed, on May 22, 1815, the disapprobation of the Prince Regent at the conduct of the troops, and his desire to make a compensation to the widows and families of the sufferers. Mr. Monroe, Secretary of State, on being informed of this action, sent, on December 11, 1815, to Mr. Baker, British chargé d'affaires at Washington, a note in which he said: It is painful to touch on this unfortunate event, from the deep distress it has caused to the whole American people. This repugnance is increased by the consideration that our Governments, though penetrated with regret, do not agree in sentiment respecting the conduct of the parties engaged in it. Whilst the President declines accepting the provision contemplated by His Royal Highness the Prince Regent, he nevertheless does full justice to the 19otives which dictated it."" Wharton, Int. Law Digest. § 348c, III. 331, citing 4 Am. State Papers, ~56. A prisoner of war is subject to no punishment for being a publie enemy, nor is any revenge wreaked upon him by the intentional inflicting of any suffering, or disgrace, by cruel imprisonment, want of food, by mutilation, death, or any other barbarity." 59. A prisoner of war remains answerable for his 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. "All prisoners of war are liable to the infliction of retaliatory measures." "67. The law of nations allows every sovereign government to make war upon another sovereign state, and, therefore, admits of no rules or laws different from those of regular warfare, 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.” "72. Money and other valuables on the person of a prisoner, such as watches or jewelry, as well as extra clothing, are regarded by the American Army as the private property of the prisoner, and the appropriation of such valuables or money is considered dishonorable, and is prohibited. "Nevertheless, if large sums are found upon the persons of prisoners, or in their possession, they shall be taken from them, and the surplus, after providing for their own support, appropriated for the use of the Army, under the direction of the commander, unless otherwise ordered by the Government. Nor can prisoners claim, as private property, large sums found and captured in their train, although they have been placed in the private luggage of the prisoners. "73. All officers, when captured, must surrender their side arms to the captor. They may be restored to the prisoner in marked cases, by the commander, to signalize admiration of his distinguished bravery, or approbation of his humane treatment of prisoners before his capture. The captured officer to whom they may be restored can not wear them during captivity. "74. 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. "75. Prisoners of war are subject to confinement or imprisonment such as may be deemed necessary on account of safety, but they are to be subjected to no other intentional suffering or indignity. The confinement and mode of treating a prisoner may be varied during his captivity according to the demands of safety. "76. Prisoners of war shall be fed upon plain and wholesome food, whenever practicable, and treated with humanity. They may be required to work for the benefit of the captor's government, according to their rank and condition. "77. A prisoner of war who escapes may be shot, or otherwise killed, in his flight; but neither death nor any other punishment shall be inflicted upon him simply for his attempt to escape, which the law of war does not consider a crime. Stricter means of security shall be 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 may be rigorously punished, even with death; and capital punishment may also be 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. 78. 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 shall not be punished for their escape, but shall be treated as simple prisoners of war, although they will be subjected to stricter confine ment. 79. Every captured wounded enemy shall be medically treated, according to the ability of the medical staff. 80. 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." Instructions for the Government of Armies of the United States in the "Prisoners of war are in the power of the hostile Government, but not in that of the individuals or corps who captured them. "They must be humanely treated. "All their personal belongings, except arms, horses, and military papers remain their property. "ARTICLE V. Prisoners of war may be interned in a town, fortress, camp, or any other locality, and bound not to go beyond certain fixed limits; but they can only be confined as an indispensable measure of safety." Convention respecting the Laws and Customs of War on Land, The Hague, July 29, 1899, Chap. II., on Prisoners of War, Art. IV., 32 Stat. II. 1812. "ARTICLE VI. The State may utilize the labor of prisoners of war according to their rank and aptitude. Their tasks shall not be excessive, and shall have nothing to do with the military operations. Prisoners may be authorized to work for the Public Service, for private persons, or on their own account. |