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George II.; but this feeling vanishes as soon as it is recollected that the assiento contract, permitting British subjects to convey slaves from Africa to the Spanish West Indies, was the favourite subject of British diplomacy at that period; that thus Great Britain, if not the thief, was the receiver of stolen goods, and was then habitually acting upon principles that now strike us as monstrous. And, while we disapprove the opinions of Bynkershoek, we must remember that scarcely twenty years have elapsed since most of the governments of Europe constantly sanctioned practices, regarding the blacks on the coast of Africa, which could only be defended on the principles advanced by Bynkershoek.

in which

The reader will probably be surprised at finding at Recent period how recent a period a severe treatment has been employed prisoners were towards prisoners of war. It was thought necessary to hardly treated. stipulate, in the treaty between England and Spain, in 1604, that prisoners of war should not be sent to the gallies. (1) By the treaty between France and Algiers, in 1628, it was granted that all Frenchmen serving in the ships of the enemies of the Porte might be made slaves. (2) The above article between England and Spain was renewed in 1630. (3) By the treaty of the Pyrenees, in 1659, it appears that prisoners of war were still occasionally sent to the gallies, and to the Spanish settlements in Africa. (4) And so lately as in the war in Ireland, in King William's time, the Count of Solms determined, in 1690, to transport his prisoners to America; but the Duke of Berwick threatened to retaliate, by sending an equal number of his prisoners to the gallies. (5).

(1) Dumont, Corps Dipl. V.

II. 35.

(2) Id. 559.

(3) Id. 623.

(4) Id. VI. 11. 278.

(5) Bynk. Quæst. Jur. Pub. lib. I. ch. III.

M

Prisoners now released at the end of war

among all Christian powers.

The practice of ransoming, which was so general in the days of chivalry, was continued till a very recent period, for the purpose of obtaining release during war; though at the end of a war it has for a long time been usual to stipulate, that prisoners shall be released without any ransom, on paying their just debts, or on their government defraying the cost of their subsistence. Of such articles, declaring that prisoners shall be released without ransom on both sides, a list lies before me too long for insertion; and it is sufficient to say, that it has been the universal practice of all Christian powers since the peace of Munster, in 1648. Between the Christian and Mahommetan states the usage, with regard to prisoners, has not been so regular: we have seen how lately the Dutch were accustomed to sell prisoners from the Barbary states as slaves. In treaties between the Porte and Austria, in 1791, and the Porte and Russia, in 1792, it appears that Christian prisoners were used as domestic slaves in Turkey at that period; (1) but in recent treaties with the Porte, prisoners are exchanged as between Christian states; (2) and the same stipulation is also made in a treaty between the Porte and Persia, in 1823, (3) and between Russia and Persia in 1828. (4) Until Lord Exmouth's expedition, Christian prisoners were frequently used as slaves by the Barbary powers, and were sometimes ransomed according to a fixed rate. In the treaty between the United States and Morocco, in 1787, it was agreed, that all prisoners were to be exchanged, and not used as slaves, and that any balance of prisoners should be redeemed at the rate of 100 Mexican dollars a man. (5) And, after Lord Exmouth

(1) De Martens, Rec. V. 249 -298.

(2) See the treaty with Russia in 1807, id. Supp. IV. 458, in 1812. Supp. VII. 402, and, in

1829, Supp. XII. 151.

(3) Id. Supp. X. 283.
(4) Id. Supp. XI. 509.
(5) Id. Rec. IV. 251.

had obtained the freedom of Christian prisoners, the previous permission to employ them as slaves seems recognized in the treaty between Tuscany and Tunis, in 1816, which states, that all prisoners taken before Lord Exmouth's treaty (1) were to be considered as slaves, and ransomed; but that all taken after that period were to be released without ransom. (2)

Agreements by which states determine at what rate Cartels. prisoners shall be released during war, are termed Cartels; and there is this great difference between the cartels of a recent period and the ransoms of the days of chivalry, that a fixed rate is agreed upon by the former, determined by the government, and independent of the caprice of the captor, who no longer holds his prisoners as his property. Of such cartels several lie before me; they stipulate that prisoners of the same military, or naval, rank shall be exchanged against one another, and that the rest are to be ransomed at a fixed rate: this fixed rate varies in different cartels; in that between France and the United Provinces, in 1673, a general-in-chief was to be valued at 50,000 livres, a field-marshal at 20,000, a general at 4,000, &c. ; (3) and similar cartels, with slight differences, continued to be made in the wars of that period. (4) In the cartel between Great Britain and France, in 1780, an admiral is valued at sixty men, a rear-admiral at thirty, a marshal of France at sixty men, a colonel at twelve men, &c. &c.; each man is to be valued at 17., so that an admiral's ransom would be 60%., and others in proportion: and, in this cartel, the men in merchant ships are admitted to ransom; a captain is valued at 47., and a common seaman at 17. (5) Similar

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True principle for regulating

conduct to the vanquished.

Barbarous

by the French

Convention.

have been many other cartels, which all coincide in the principle of exchanging according to grade, with the single exception that, in 1793, the French Convention decreed that they would only exchange prisoners on the condition of exchanging man for man, without any distinction as to grade. (1)

At the present day, a mild and humane treatment exists with regard to Prisoners of War; which is perhaps in some degree attributable to the deference paid to the writings of Vattel, who appears to have been the first author that established the true principles on which prisoners should be treated. He says, that "as soon as your enemy has laid down his arms, and surrendered his person, you have no longer any right over his life, unless he should give you such right by some new attempt, or had before committed against you a crime deserving death." "Prisoners of war," he says, "may be secured, but cannot be made slaves, unless for personal guilt which deserves death; nor be slain, unless we be perfectly assured that our safety demands such a sacrifice." (2)

An exception to the humanity now customary towards exception made prisoners of war was made by the French Convention, in 1794, when they issued a decree, that no prisoners should be made of English, Hanoverians, or Spaniards; and also, that any besieged places, that did not surrender in twenty-four hours from the time of summons, should have their garrisons put to the sword. (3) These barbarous decrees need no comment, as they can inspire but one sentiment. The Duke of York did not retaliate upon the French, but continued to treat his prisoners with the usual lenity of modern warfare. The French subsequently

(1) De Martens, Rec. V. 364 -372.

(2) Droit des Gens, liv. III.

ch. VIII. § 148-153.

(3) De Martens, Rec. V. 374, 375.

revoked their decrees, and coincided in the usual customs of war in a variety of treaties and cartels, several of which are before me, but which it is unnecessary to quote, as they offer nothing new on the subject.

It may be remarked, in conclusion, that the same Conclusion. principles which have been appealed to in the preceding chapter, afford also the clue to the right treatment of Prisoners of War. The usages of former ages proceeded upon the supposition that any violence was allowed in warfare, and that the rights of the victor upon the vanquished were unlimited; and that, having a right to deprive his antagonist of life, the captor had a right to impose any treatment more lenient than death upon his prisoner. But we have seen that, so far from the rights of a belligerent being unlimited, the Law of Nature strictly limits them to such violence as is necessary; that thus, when an antagonist no longer resists, there can no longer be any right to use violence towards him; and that, whenever the purposes of warfare are not frustrated by the granting of quarter, the belligerent cannot refuse to give quarter without a direct violation of the Law of Nature, which warrants no further harshness towards prisoners than is required by the purposes of safe custody and security.

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