Cartels. 827. It is the duty of belligerents to exchange prisoners of war, or allow them to be ransomed on reasonable terms. 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. Right of belligerent to retain prisoners. 828. A belligerent has the right to retain prisoners of war until the end of the war, if exchange cannot be agreed on. Vattel, Droit des Gens, liv. 3, ch. 8, § 153; Halleck, Intern. Law and Laws of War, p. 431, § 9. Manner of exchanging prisoners. 829. Unless otherwise regulated by cartel or special agreement, exchanges of prisoners of war take place, number for number, rank for rank, wounded for wounded, with added condition for added condition, such, for instance, as not to serve for a certain period. Lieber's Instructions, ¶ 105. Ransom. 830. Ransom for prisoners can be required only for those remaining upon one side after a general exchange has taken place,' and upon the authority of the nation by whose forces the capture was made. An officer cannot take ransom. Lieber's Instructions,¶ 74. Fioré, (Nouveau Droit Intern., vol. 2, p. 295,) condemns the alleged right to claim ransom. 1 See Lieber's Instructions, ¶ 108. Cartel for exchange. 831. A cartel, for the exchange of prisoners, may be agreed on by the nation, or by the commander in the field or fleet. See Lieber's Instructions, ¶ 106. Breach of cartel. 832. A cartel may be terminated by either party, whenever violated by the other. Lieber's Instructions, ¶ 109. Cartel ships. 833. A cartel ship is one actually engaged by a belligerent for service in the transportation of prisoners taken in war, agreeably to a cartel for exchange. A cartel ship should carry a pass from the nation employing it, and a flag of truce, with the flags of each belligerent displayed together. See Lushington's Naval Prize Law, §§ 276, 277. Protection of cartel ships. 834. Cartel ships, while actually and exclusively engaged in service as such, and in going to and returning from such service, if they engage in no other traffic or intercourse whatever, whether otherwise lawful or unlawful, and are guarded only by a sufficient force to suppress disorderly violence, are free from capture, and are to be respected and protected by each belligerent. Kent, (1 Commentaries, p. 66,) says, that it is indispensable that a cartel for the exchange of prisoners be conducted with the most exact and exclusive attention to the original purpose, as being the condition upon which the intercourse by cartel ships can be tolerated. All trade, therefore, by means of such ships, is unlawful, without the express con sent of both the goverments concerned. See Lushington's Naval Prize Law, § 275, where the rule is stated as excluding the carrying of cargo and engaging in unlawful intercourse. For the existing rules as to cartel ships, see Wildman, Intern. Law, v. 2, p. 30. Compare Article 786. CHAPTER LXIV. HOSTILITIES AGAINST PROPERTY. ARTICLE 835. What property may be seized. 836. What the belligerent may appropriate, and 837. Destroying means of communication. 838. Destroying facilities of navigation. away. 842. Use of and title to public immovables. 843. Title to movables. 844. Revenues held in trust for governing the country. 845. Public ships surprised by war. 846. Private property to be respected. 847. Rescue. 848. Effect of recapture of property of a neutral. erent. 850. Military burdens of passive enemies. 851. Compensation for property taken for mili tary uses. The most important change of existing rules which is proposed by the provisions of this Chapter, is the exemption of private property from capture, at sea as well as on land, except in the cases of its being contraband, or employed in illegal traffic, or actually used to promote the purposes of the war; and except also in cases of military necessity, when compensation is made. The rule that private property on land ought to be respected as far as possible may now be regarded as fully recognized; Bluntschli, Droit Intern. Codifié, § 651; Lieber's Instructions, ¶ 38; subject however, to the ill-defined exception of military necessity. See notes to Article 846. It may be conceded that the earlier authorities sustained the right of taking booty on land; and that the modern rule had its origin as asserted by Hautefeuille, (Droits et Devoirs des Nations Neutres, tit. III., section III., § 1,) in the impolicy of exasperating the inhabitants of a territory by depriving them of their goods; but whatever its original reason, it is sufficiently settled as a rule of civilized warfare to need no further dis cussion here. The question now is whether the same rule ought not to be extended to property at sea. The apothegm of Sir John Nicholl, (8 Term Rep., 548,) that "there could be no such thing as a war for arms and a peace for commerce; " and that of Sir Travers Twiss, (Law of Nations, pt. II., p. 52,) that “because private war is inconsistent with public peace, it follows that public war is equally inconsistent with private peace," are little more than a play upon words, or at best, maxims which belong to the times when every individual of one belligerent nation was deemed an enemy of every individual of the other; when Vattel could inquire whether women and children are numbered among enemies, and answer in the affirmative ; and when even Kent could declare, that all meeting of citizens of adverse belligerents, except in deadly combat, was unlawful. The rule now acknowledged by civilized nations is that the belligerent nations, not their non-combatant members, are enemies, (see Articles 705 and 744;) and the history of recent great wars has demonstrated that there may be such a thing as a peace for commerce during a war of arms. Private war having become illegal, private peace should be secured so far as possible. There is no reason why public war should disturb private peace, merely for the sake of booty. The chief arguments on this question, which still deserve consideration, are perhaps more completely indicated by Ortolan, (Diplomatie de la Mer, liv. III., ch. 2,) than by any other authors. After alluding to the reasons of humanity, and of commercial interest, on which the protection of private property at sea has been urged, and raising the inadequate objection that some other severities of war are still more objectionable in these respects, and replying to the argument that the rule of justice must be uniform, by saying that the land and the sea are so different that the one cannot afford a rule for the other, he defends the right of capture at sea, upon the following grounds: 1. The object of war is to compel a peace by injuring the enemy; and on land the military power may impose requisitions and levies on the inhabitants; which, in fact, are only convenient modes of seizing private property, and cannot be substituted at sea for individual capture; 2. If war at sea were to be restricted to the naval forces, it would be impossible to injure the enemy there, he keeping his ships of war in port; and meanwhile he might carry on intercourse by private ships with impunity; 3. The capture of a ship and cargo is not like the confiscation of a warehouse of goods; for the ship and seamen are potentially an auxiliary of the naval forces of the nation, and constitute a means of extending its power beyond its proper territory ; 4. The doctrine of the freedom of the seas favors the right of capture; for, since a belligerent cannot take possession of the sea and hold it as a territory, he can only take the ships he finds there; and as by oc cupying territory he may interfere with the territorial power of his enemy, so at sea by capturing ships he may interpose against his enemy's right of passage on the seas; 5. The land rule does not leave non-combatants free to carry on an unrestricted commerce on the territory within military occupation ; but it forbids trade, it makes personal property inviolable only for a sufficient time to allow its sale or removal, and the continued protection of the title to real property is a principle inapplicable to ships, which are personal property; 6. Without capture of private property, war at sea would be imperfect, and, in so far, interminable. And, finally, he concludes that it is a question of conflict between national and private rights; and that private rights being the less important interest, must yield so far as incompatible with the greater interest. The solution which he suggests is the maintenance of the right of capture, both of ship and cargo; together with a partial protection of private right, by a restoration of the value of the goods, in specified cases, to be made either immediately, or at the termination of the war. The one exception which he recognizes is that of the vessels, &c., of coast fisheries, when they serve chiefly as the means of subsistence of inoffensive inhabitants, and have no public and general importance. Dana, (in a note to Wheaton,) earnestly advocates the practice of warring on commerce, declaring that in his opinion it is the most humane, and often the most efficient part of war, and the least objectionable part. It takes no lives, sheds no blood, imperils no households: has its field on the ocean, which is a common highway, and deals only with the persons and property voluntarily embarked in the chances of war, for the purposes of gain, and with the protection of insurance. War is not a game of strength between armies or fleets, nor a competition to kill the most men and sink the most vessels; but a grand valiant appeal to force, to secure an object deemed essential, when every other appeal has failed." Dana's Wheaton, Elements of Intern. Law, p. 876. In reply to the observations that capture at sea corresponds with the right of requisition on land, and that the enemy may unexpectedly turn private ships and seamen into naval forces, it may be said that the right of requisition is restricted, and requires compensation; (see Article 851,) and that the capacity of a ship to serve in the war could at most be a ground for its detention, not for confiscation either of the ship or its contents. The freedom of the seas, and the possibility of a belligerent avoiding maritime war by ceasing to send out ships of war, and the suggestion that maritime warfare will become inconclusive without the right of private capture, may well be urged as arguments in favor of the reform against which they are cited. The sea is the highway of nations, and may well be dedicated by common consent, to peaceful uses. The peculiar sufferings and abuses incidental to hostilities at sea, and the fact |