*

not because the act punished is malum in se, but because it is malum prohibitum, to use a legal distinction. The Brussels Code, adopting this view, subjected a prisoner retaken in flight to 'disciplinary punishment or a stricter surveillance,' and the Hague Règlement, going further on the lines, makes him liable to 'disciplinary punishment' and omits the alternative mentioned in the Brussels Project. The point gave rise to a lengthy discussion at the Hague. Finally,' says the Report, it was agreed, as it had been in 1874 at Brussels, that an attempt to escape should not go entirely unpunished, but that it is desirable to limit the degree of punishment which it may entailespecially, to prevent its being assimilated to desertion in face of the enemy and, as such, punished with death. * * At the same time, it was agreed in the course of the discussion that this restriction does not apply to cases in which the escape is accompanied by special circumstances amounting, e. g., to a conspiracy, rebellion or mutiny. In such cases, as General Voigts-Rhetz observed at Brussels in 1874, the prisoners are punishable under the first part of the same Article, which says that they are 'subject to the laws, regulations and orders in force in the army of the state in whose power they are'; and this provision is supplemented by that of the same Article VIII which says down that any act of insubordination justifies the adoption towards them of such measures of severity as may be necessary.' War law, therefore, while allowing the killing of a prisoner to prevent his escaping, does not allow it as a punishment except where there has been a conspiracy or plot. Anything in the nature of concerted rebellion may be severely punished-even with death; but as regards ordinary attempts to escape on the part of prisoners who have not given their parole, these, as the German Manual points out, 'must be considered as manifestations of a natural. desire for freedom, not as crimes. They must therefore be repressed by a restriction of the liberty allowed and by a stricter detention, but not punished by death, which should only be inflicted in the case of formal plots, by reason of their dangerous character.' Articles 7 and 8 of the Japanese Regulations of February, 1904, made prisoners re-captured while escaping liable to the summary punishments in force in the Japanese Army, but specially exempted them from any 'condemnation for a crime or delinquency by reason of their attempt to escape.' If, however, a prisoner attempted to escape after giving his word of honour not to do so, he was liable to a 'major detention' (five years' imprisonment). A breach of parole of this kind is usually treated in the same as a breach of parole after release on conditions (as to which presently) and entails, in theory at least, the liability to capital punishment."

11. The French author, Bonfils, Droit International Public (1914), is to the same effect (pars. 1122, 1124, 1128, 1131), and gives many citations of authorities.

12. In the absence of an express agreement with Germany it is worth while to notice that on April 26, 1918, the French and German governments made regarding prisoners of war an agreement containing the following passages:

"IV. Judicial and Disciplinary Punishments.

"a. Carrying Out of Judicial Punishments.

"Art. 34.-Whatever the nature and duration be, judicial punishments inflicted for murders or offenses perpetrated by prisoners of war during their captivity between September 1st, 1916, to April 25th, 1918, included, will be carried out in the following way:

"The condemned prisoners will be immediately removed into a special camp, the installation and regulations of which will be identical to those of the other camps. The condemned will be treated exactly as the other prisoners under reservation of the following restriction:

"a. Recreation rooms, gymnastic and play grounds, walks outside the camp, performances and concerts will be forbidden to them. "b. Their purchases at the canteen will be limited to 25 marks or 25 francs for officers, and 10 marks or 10 francs for privates per month. "c. They will not be allowed to work outside the camp. "d. They will receive not more than 4 parcels a month.

"b. Carrying Out of Disciplinary Punishments.

"Art. 35.-Punishments inflicted on prisoners of war will be carried

out:

"a. As regards officers:

"In Germany, according to the provisions in force for 'close arrest' (Verschaerffer Stubenarrest); in France, according to prescribed regulations concerning close arrest for officers.

"b. As regards noncommissioned officers, including sergeants;

"In Germany, according to the provisions in force for 'close arrest' called 'gelinder arrest'; in France, according to the prescribed regulations concerning 'celle':

"Art. 36. The duration of a single punishment cannot, in any case exceed thirty days.

"When the total duration of several punishments of close arrest or cell, which would be undergone consecutively, exceeds thirty days, an interval of one week will be granted after each period of thirty days in the carrying out of the punishment. During that interval, no harsh measures must be imposed on prisoners of war.

"Art. 43 of the Berne agreement of March 15, 1918, is repealed. "Art. 37.-The punishments referred to above must be carried out under the conditions determined in Annexes 3 and 4."

13. The recent history of the treatment of prisoners of war begins with G. O. No. 100, 1863, paragraphs 75-80 (Birkheimer on Military Government and Martial Law, 598-600); and those provisions may be traced through the Brussels convention of 1874, Articles 23-24 (Higgins' Hague Peace Conferences, 776-778), to the Hague Regulations, which, so far as relevant, have been quoted. It is unnecessary to go into the history of the subject; for the history is fully presented in the treatises which have been cited, and enough material has been quoted for the present purpose.

14. The conclusion is that, as this prisoner of war was convicted of attempting to escape, but was not convicted of conspiracy or of breaking parole, he should not be punished otherwise than with punishment of a disciplinary nature, and that disciplinary punishment should not be extended beyond close confinement and the withholding of privileges, and that action should be taken in accordance with this opinion. [Signed] S. T. Ansell, Acting Judge Advocate General.

23. PLACE OF CONFINEMENT WHEN SENTENCE EXCEEDS SIX MONTHS 2d Ind.

War Department, J. A. G. O., July 20, 1918.—To the Adjutant General. 1. Returned. The commandant, United States Disciplinary Barracks, Fort Leavenworth, Kansas, requests information as to what disposition should be made by him of a soldier sentenced to be confined at hard labor for one year and six months, and to forfeit all pay and allowances due or to become due, without dishonorable discharge, where the United States Disciplinary Barracks, Fort Leavenworth, Kansas, has been designated by the reviewing authority as the place of confinement. Under this sentence the soldier was sent to the above mentioned place and is now being held pending further information as to his disposition. He refers to a letter of instruction issued from the office of The Adjutant General on February 12, 1918, in which he was directed to return to Camp Wheeler, Georgia, a prisoner sent to the disciplinary barracks under similar circumstances and requests general authority to take the same action in all such cases. This letter is now referred to this office for remark as to whether such general authority should be granted.

2. Paragraph 397, Manual for Courts-Martial, reads as follows: "The United States Disciplinary Barracks at Fort Leavenworth, Kansas, or one of its branches will be designated as the place of confinement of all general prisoners * * * who are to be confined for six months or more and who are not to be confined in a penitentiary pursuant to the preceding paragraph.

* * * ""

Paragraph 398, Manual for Courts-Martial, reads as follows:

"A military post, station, or camp will be designated as the place of confinement of any general prisoner whose case does not come within the terms of paragraphs 396 and 397 of this section."

3. While the above quoted paragraphs do not in terms prohibit the confinement of a garrison prisoner in a disciplinary barracks, it is the opinion of this office that prisoners not sentenced to dishonorable discharge should not be held within their organizations.

4. It is therefore suggested that instructions be issued to all officers exercising general court-martial jurisdiction that the United States. Disciplinary Barracks or a branch thereof will not be designated as the place of confinement unless the sentence includes dishonorable discharge, the execution of which, may, however, be suspended. Par

ticular attention should be invited to the paragraphs of the Manual for Courts-Martial quoted above.

5. In this connection it should be noted that in the opinion of this office a sentence involving confinement at hard labor for more than six months should not be approved unless accompanied by dishonorable. discharge, which may be suspended. Neither should a sentence involving confinement for more than one month be approved unless accompanied by some forfeiture of pay.

6. In the opinion of this office there is no objection to granting the commandant, United States Disciplinary Barracks, the authority requested.

[Signed] S. T. Ansell, Acting Judge Advocate General.

24. COMPENSATION FOR LABOR OF PRISONERS OF WAR

2d Ind.

War Department, J. A. G. O., July 20, 1918.-To the Adjutant General.

1. The question submitted by the Secretary of State in his letter of May 29, 1918, to the Secretary of War, referring to the letter of the Secretary of War dated October 20, 1917, is whether the United States should accede to the protest of the German Government against the non-payment of prisoners of war at Fort McPherson, Georgia, for labor connected with the upkeep of their compound.

2. The Hague Conventions of 1899 and 1907 relating to Laws and Customs of War on Land contained, in Article VI of the Regulations thereto annexed, a few provisions, which, if considered to be in force, would serve as a basis for an opinion. The provisions are (2 Malloy's Treaties, 2282):

"The State may utilize the labour of prisoners of war according to their rank and aptitude, officers excepted. The tasks shall not be excessive and shall have no connection with the operations of war.

"Prisoners may be authorized to work for the public service, for private persons, or on their own account.

"Work done for the State is paid at the rates in force for work of a similar kind done by soldiers of the national army, or, if there are none in force, at a rate according to the work executed.

"When the work is for other branches of the public service or for private persons the conditions are settled in agreement with the military authorities.

"The wages of the prisoners shall go towards improving their position, and the balance shall be paid them on their release, after deducting the cost of their maintenance."

Those provisions, though ratified by both Germany and the United States, are not now formally in force. Article II of the Hague Convention No. 4 of 1907.

3. It has been hoped that regarding prisoners of war an agreement with Germany would be included before the filing of this opinion; but as that hope seems incapable of realization, an opinion will now be given largely on the basis of the official German publication, entitled

"Kriegsbrauch im Landkriege." That document, as translated in Morgan's German War Book, 71, reads:

"Prisoners of war can be put to moderate work proportionate to their position in life; work is a safeguard against excesses. Also on grounds of health this is desirable. But these tasks should not be prejudicial to health nor in any way dishonorable or such as contribute directly or indirectly to the military operations against the Fatherland of the captives. Work for the State is, according to the Hague Regulations, to be paid at the rates payable to members of the army of the State itself. "Should the work be done on account of other public authorities or of private persons, then the conditions will be fixed by agreement with the military authorities. The wages of the prisoners of war must be expended in the improvement of their condition, and anything that remains should be paid over to them after deducting the cost of their maintenance when they are set free. Voluntary work in order to earn extra wages is to be allowed, if there are no particular reasons against it.'

4. In the United States Rules of Land Warfare, 1914, paragraphs 65, 66, the provisions quoted from the Hague Regulations are given as binding on the Armies of the United States.

5. The United States Regulations for the Employment of Prisoners of War, dated March 28, 1918, though not retroactive in effect, would properly be appealed to in behalf of German prisoners of war as indicating reasonable limits upon their liability to work. Paragraphs 7 and 8 are as follows:

"7. When employed on work that is necessary for their comfort, or for the upkeep of the prison barracks in which they are interned, prisoners will receive no compensation. When the work is done for the Government, prisoners will be paid at a rate according to the work executed; when the work is for other branches of the public service or for private persons, the conditions of and the compensation for such work will be settled in agreement between representatives of said branches or persons and The Adjutant General of the Army.

"8. The wages of the prisoners shall go toward improving their position, and the balance shall be paid them on their release, after deducting the cost of their maintenance."

The 12th paragraph says that "when prisoners are employed on work for the Government," "the rates of pay shall be fixed by the Secretary of War, according to the work executed;" and the 13th paragraph gives details regarding work done for private persons.

6. The work done by these prisoners of war appears to have been the construction of new quarters to be occupied by themselves and by other prisoners of war. The construction of new quarters cannot fairly be called work necessary for the comfort of the workers or for the upkeep of the barracks in which they are interned; and consequently there should be compensation in this case.

[Signed] S. T. Ansell, Acting Judge Advocate General.