DESERTERS. PRISONERS OF WAR. BOOTY ON THE BATTLEFIELD.
§ 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.