But supposing for which I see no ground that he violated his parole or the pledge of honor on which the safe - conduct was granted him - what then? What penalty did he incur? He forfeited his protection undoubtedly. He was liable to capture like any unprotected enemy. I doubt if the penalty extends further unless he has acted as a spy. But even considering him not as an enemy on safe - conduct but a prisoner released on parole not to take arms, what then is the penalty by the laws of war for violation of the parole? I find nothing decisive of the question in the writers on public law. Vattel, Wildman, Wheaton, while they assert the binding obligation of such parole and deny the power of the soverign to dispense from it or forbid its observance pass by in silence the question of penalty. Halleck, the latest writer on international law and the laws of war, does not meet the point precisely. He says the act of government in forcing a soldier" to violate his parole" is futile as a protection to him, and is semibarbarism iin the government; that Mexican prisoners released on parole were organized into guerrilla bands under robber chiefs furnished with military commissions from governement. " Such attempts," he adds, " to violate the ordinary rules of war not onlu justify but require prompt and severe punishment. " What punishment? Death or more regorous imprisonment than that from which they had been relieved and that other prisoners are subject to? And for what cause? Because they were again in arms, or because in guerrilla bands under robber chiefs? " Accordingly," he proceeds, " General Scott announced his intention to hang every ne retaken after thus violating his parole. " He thus so far as he indorses the doctrine may refer to the aggravated circumstances just stated. General Scott, however, does lay the doctrine down without qualification. At least he requests the archbishop of Mexico so to advise and intruct the Mexicans that death is the penalty for violating parole. But I do not find that doctrine in the boks. In the debate in the House of Lords on the executive of Colonel Hayne by the British at Charleston the lord chancellor and the ministerial side argued that a prisoners taken in arms in violation of parole was liable to instant executive without other form of trial than that necessary to identify the person. The opposition denied the ministerial doctrine. The e said:
The practice in the late war was totally different. A great digree of ignominy and stricter confinement were the consequences of breach of parole. Persons quilty of that offense are shunned by gentlemen. But it had never before entered into the head of a commander to hang them.
Earl of Effingham said:
The lord chancellor's quotation from Grotius related to spies and not prisoners who had broken their paroles.
But admit that prisoners of war may be put death or violation of parole - an it seems only just and reasonable that they should be where the reach of faith betrays the adversary into disaster or results in any serious injury to him - it will not be said that the extreme penalty shoud attend every case. This case if a case at all is not an aggravated but a very mitigated case. He took no part in the action. He was not in arms, but he was with the enemy and belonging to their service; he was prisoners of war like the rest.
Under these circumstances the Government ought I think to discharge this man from the sentence of death; and may also consider whether to order his detention as prisoner of war, or in consideratin of