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diff --git a/.gitattributes b/.gitattributes new file mode 100644 index 0000000..d7b82bc --- /dev/null +++ b/.gitattributes @@ -0,0 +1,4 @@ +*.txt text eol=lf +*.htm text eol=lf +*.html text eol=lf +*.md text eol=lf diff --git a/LICENSE.txt b/LICENSE.txt new file mode 100644 index 0000000..6312041 --- /dev/null +++ b/LICENSE.txt @@ -0,0 +1,11 @@ +This eBook, including all associated images, markup, improvements, +metadata, and any other content or labor, has been confirmed to be +in the PUBLIC DOMAIN IN THE UNITED STATES. + +Procedures for determining public domain status are described in +the "Copyright How-To" at https://www.gutenberg.org. + +No investigation has been made concerning possible copyrights in +jurisdictions other than the United States. Anyone seeking to utilize +this eBook outside of the United States should confirm copyright +status under the laws that apply to them. diff --git a/README.md b/README.md new file mode 100644 index 0000000..c5db173 --- /dev/null +++ b/README.md @@ -0,0 +1,2 @@ +Project Gutenberg (https://www.gutenberg.org) public repository for +eBook #53699 (https://www.gutenberg.org/ebooks/53699) diff --git a/old/53699-0.txt b/old/53699-0.txt deleted file mode 100644 index 082f5b7..0000000 --- a/old/53699-0.txt +++ /dev/null @@ -1,1518 +0,0 @@ -The Project Gutenberg EBook of A Code for the Government of Armies in the -Field,, by Francis Lieber - -This eBook is for the use of anyone anywhere in the United States and most -other parts of the world at no cost and with almost no restrictions -whatsoever. You may copy it, give it away or re-use it under the terms of -the Project Gutenberg License included with this eBook or online at -www.gutenberg.org. If you are not located in the United States, you'll have -to check the laws of the country where you are located before using this ebook. - -Title: A Code for the Government of Armies in the Field, - as authorized by the laws and usages of war on land. - -Author: Francis Lieber - -Release Date: December 8, 2016 [EBook #53699] - -Language: English - -Character set encoding: UTF-8 - -*** START OF THIS PROJECT GUTENBERG EBOOK CODE FOR GOVERNMENT OF ARMIES *** - - - - -Produced by Richard Tonsing and the Online Distributed -Proofreading Team at http://www.pgdp.net (This file was -produced from images generously made available by The -Internet Archive) - - - - - - - - - - A CODE - - FOR THE - - Government of Armies in the Field, - - AS AUTHORIZED BY THE LAWS AND USAGES OF WAR ON LAND. - - - Printed as manuscript for the Board appointed by the Secretary of - War [Special Orders, No. 399,] “To Propose Amendments or Changes - in the Rules and Articles of War, and a Code of Regulations for - the Government of Armies in the Field, as authorized by the Laws - and Usages of War.” - - By FRANCIS LIEBER, Member of the Board. - - FEBRUARY, 1863. - - - - - CODE. - - - - - MARTIAL LAW. MILITARY NECESSITY. RETALIATION. - - -§ 1. A place, district, or country, invested or occupied by an enemy, -stands, in consequence of the occupation, under the Martial Law of the -investing or invading army, whether any proclamation declaring Martial -Law, or any public warning to the inhabitants, has been issued or not. -Martial Law is the immediate and direct effect and consequence of -occupation or conquest. - -The presence of a hostile army proclaims its Martial Law. - - -§ 2. Martial Law does not cease during the hostile occupation, except by -special proclamation, ordered by the commander in chief; or by special -mention in the treaty of peace, concluding the war, when the occupation -of a place or territory continues beyond the conclusion of peace, as one -of the conditions of the same. - - -§ 3. Martial Law in a hostile country, consists in the suspension, by -the occupying military authority, of the criminal and civil law, and of -the domestic administration and government in the occupied place or -territory, and in the substitution of military rule and force, for the -same; as well as in the dictation of general laws—as far as military -necessity requires this suspension, substitution, and dictation. - -It is not unusual to proclaim that the administration of all civil and -penal law shall continue, as in times of peace, unless specially -interfered with by the military authority. - - -§ 4. Martial Law, although called law, does not consist in a body of -rules of action. There is not even a distinct term for it in other -languages. - -Martial Law in a conquered or invaded country, or place, is temporary -Military Absolutism, in the hands of commanders, who, therefore, must -take care that it does not degenerate into arbitrary despotism. Martial -Law is not the reckless use of military power by the highest or lowest -in arms. Military oppression is not Martial Law. - - -§ 5. Military Necessity, as understood by modern civilized nations, -consists in the necessity of those measures which are indispensable for -the obtaining of the ends of the war, and are lawful according to the -modern law and usages of war. - - -§ 6. Modern times are distinguished from earlier ages, by the existence, -at one and the same time, of many nations and great governments, related -to one another in close intercourse. They draw abreast like chariot -horses. - -Peace is their normal condition; war is the exception. The ultimate -object of all modern war is a renewed state of peace. - -The more vigorously wars are pursued, the better it is for humanity. -Sharp wars are brief. - -Ever since the formation and co-existence of modern nations, and ever -since wars have become great national wars, War has come to be -acknowledged not to be its own end, but the means to obtain great ends -of state, or to consist in defence against wrong; and no conventional -restriction of the modes adopted to injure the enemy is any longer -admitted; but the law of war imposes many limitations and restrictions -on principles of justice, faith, and honor. - - -§ 7. Military Necessity admits of all direct destruction of life or limb -of the armed enemies, and of those whose destruction is incidentally -unavoidable in the armed contests of the war; it allows of the capturing -of every armed enemy, and every enemy of importance to the hostile -government, or of peculiar danger to the captor; it allows of all -destruction and obstruction of property, of the ways and channels of -traffic, travel, or communion, and of all withholding of sustenance or -means of life from the enemy; of all appropriation necessary for the -subsistence and safety of the army, and of all deception which does not -involve the breaking of good faith either positively pledged regarding -agreements entered into during the war, or supposed by the modern law of -war to exist, even in the fiercest struggle, as a basis of intercourse -between honorable belligerents. Men who take up arms against one another -in public war, do not cease on this account to be moral beings, -responsible to one another, and to God. - -Military Necessity does not admit of cruelty—that is, the infliction of -suffering for the sake of suffering or for revenge;—nor of maiming or -wounding except in fight, nor of torture to extort confessions; it does -not admit of the use of poison in any way, nor of the devastation of -districts for the sake of creating depopulated districts, since it is -the will of our Maker that in the normal state the land shall be tilled -and peopled; and, in general, Military Necessity does not include any -act of hostility which makes the return to peace unnecessarily -difficult. - - -§ 8. In modern wars all civil and penal law continues to take its usual -course in the enemy’s places and territories under Martial Law, unless -interrupted or stopped by order of the occupying military power; but all -the functions of the hostile government, legislative, executive, or -administrative, whether of a general, provincial, or local character, -cease under Martial Law, or continue only with the assistance or special -approbation of the occupier or invader. - - -§ 9. Martial Law extends to property and persons, whether they are -subjects of the enemy, or aliens to that government. - -Consuls, among American and European nations, are not diplomatic agents. -Nevertheless, their offices and persons will be subjected to Martial Law -in cases of urgent necessity only. - -Soldiers are rarely billeted in their houses; but their property and -business, if they are engaged in any, are not exempted. - -Any delinquency they commit against the established military rule, may -be punished as in the case of any other inhabitant, and such punishment -furnishes no reasonable ground for international complaint. - -The functions of ambassadors, ministers, or other diplomatic agents, -accredited by neutral powers to the hostile government, cease in the -invaded, occupied, or conquered places or territories. - - -§ 10. Martial Law affects chiefly the police and collection of public -revenue and taxes, whether imposed by the expelled government or by the -invader, and refers mainly to the support and efficiency of the army, -its safety and the safety of its operations. - -It allows of no individual violence; and since it consists in the -substitution of military rule for the established law and its -administration, and because it is founded on military force, it is -incumbent upon all military authorities acting by Martial Law, to be -strictly guided by the principles of justice, honor, and -humanity—virtues adorning a soldier even more than other men, for the -very reason that he possesses the power of his arms against the unarmed. - - -§ 11. The law of war does not only disclaim all cruelty and bad faith -concerning engagements concluded with the enemy during the war (§ 7), -but also the breaking of stipulations solemnly contracted by the -belligerents, in time of peace, and avowedly intended to remain in force -in case of war between the contracting powers. - -It disclaims all extortions and other transactions for individual gain; -all acts of private revenge or connivance at such acts. - -Offences to the contrary shall be severely punished in the American -army, and especially so if committed by officers. - - -§ 12. Whenever feasible, Martial Law is carried out, in cases of -individual offences, by courts-martial, and sentences of death shall be -executed only by the approval of the commander of the army corps, -provided the urgency of the case does not require a speedier execution. -In no case shall a sentence of death by court-martial be executed -without the approval of a general officer. - -The finding of a court-martial, judging an enemy, may be set aside, in -urgent cases, by the authority which has called together the -court-martial, when a new court-martial is to be ordered; but it is -against the plain demands of justice and fairness, if the authority, -which has ordered a court-martial, not only sets aside the finding, but -inflicts a severer punishment than that in the finding. Instances to the -contrary of this rule, in the history of war, although in the case of -great captains, are not to be imitated. - - -§ 13. The law of war can no more wholly dispense with Retaliation than -can the law of nations, of which it is a branch. Yet civilized nations -acknowledge Retaliation as the sternest feature of war. A reckless enemy -often leaves to his opponent no other means of securing himself against -the repetition of barbarous outrage. - -The American people demand of their generals that Retaliation be never -resorted to as a measure of mere revenge, but only as a means of -protective retribution, and, moreover, cautiously, justly, and -unavoidably; that is to say, retaliation shall only be resorted to after -careful inquiry, not blinded by passion, into the real occurrence, and -the character of the misdeeds that may demand retribution, after an -unsuccessful summons of the enemy to punish the evil-doers, and without -transgressing the bounds of strict retaliation. - -Doubtful Retaliation removes the belligerents farther and farther from -the mitigating rules of a regular war, and by rapid steps leads them -nearer to the internecine wars of savages. - - - - - PUBLIC AND PRIVATE PROPERTY OF THE ENEMY. PROTECTION OF PERSONS, AND - ESPECIALLY WOMEN; OF RELIGION, THE ARTS AND SCIENCES. PUNISHMENT OF - CRIMES AGAINST THE INHABITANTS OF HOSTILE COUNTRIES. - - -§ 14. A victorious army appropriates all public money, seizes all public -movable property until further direction by its government, and -sequesters, for its own benefit, or that of its government, all real -property belonging to the hostile government or nation. - - -§ 15. A victorious army, by the martial power inherent in the same, may -suspend, change, disacknowledge, or abolish, as far as the martial power -extends, the relations which arise from the services due, according to -the existing laws of the invaded country, from one citizen, subject, or -native of the same to another. - -The commander of the army must leave it to the ultimate treaty of peace -to settle the permanency of this change. - - -§ 16. As a general rule, the property belonging to churches, to -hospitals, or other establishments of an exclusively charitable or -eleemosynary character, to establishments of education, or foundations -for the promotion of knowledge, whether public schools, universities, -academies of learning or observatories, museums of the fine arts, or of -a scientific character—such property shall not be considered by the -armies of the United States, public property in the sense of paragraph -14. - -In exceptional cases, such as richly endowed churches or convents, their -property may be taxed with military contributions. - - -§ 17. Classical works of art, noble fabrics, libraries, scientific -collections, or precious instruments, such as astronomic telescopes, as -well as hospitals, must be tenderly secured in the name of common -humanity and civilization, against all avoidable injury, even when they -are contained in fortified places, whilst besieged or bombarded. - - -§ 18. If such, works of art, libraries, collections, or instruments -belonging to the hostile nation or government, can be removed without -injury, the ruler of the conquering state or nation may order them to be -seized and removed for the benefit of the said nation. The ultimate -ownership is to be settled by the ensuing treaty of peace. - -In no case ought they to be sold or given away by the captor or the -victorious government during the war, still less ought they ever to be -privately appropriated, or wantonly destroyed or injured. - - -§ 19. The United States acknowledge and protect, in hostile countries -occupied by them, religion and morality; unmixed private property—that -is to say, property in which neither private and public property, nor -the ideas of property and humanity, or person, are mixed;—the persons of -the inhabitants, especially those of women; and the sacredness of -domestic relations. Offences to the contrary are to be rigorously -punished. - -This rule does not interfere with the right of the victorious invader to -tax the people or their property, to levy forced loans, to billet -soldiers, or to appropriate property especially houses, land, boats, or -ships, and churches, for temporary and military uses. - - -§ 20. Private property, unless forfeited by crimes or by offences of the -owner against the safety of the army or the dignity of the United -States, and after due conviction of the owner by court-martial, can be -seized only by way of military necessity, for the support or other -benefit of the army or of the United States. - -If the owner has not fled, the commanding and seizing officer will give -receipts, which may serve the spoliated owner to obtain indemnity from -his own government, or which, if the seized property consists in large -magazines and stores, or extensive real property—such as the demolition -of houses, or the seizure of extensive lands for the erection of -fortifications—may be ultimately accounted for or disposed of by the -treaty of peace concluding the war. - - -§ 21. The salaries of civil officers of the hostile government who -remain in the invaded territory, and continue the work of their office, -and can continue it according to the circumstances arising out of the -war—such as judges, administrative or police officers, officers of city -or communal governments—are paid from the public revenue of the invaded -territory, until the military government has reason wholly or partially -to discontinue it. Salaries or incomes connected with purely honorary -titles, are always stopped. - - -§ 22. There exists no law or body of authoritative rules of action -between hostile armies, except that branch of the law of nature and -nations, which is called the law and usages of war on land. - -All municipal law of the ground on which the armies stand, or of the -countries to which they belong, is silent and of no effect between -armies in the field. - -Slavery, complicating and confounding the ideas of property, (that is of -a thing,) and of personality, (that is of humanity,) exists according to -municipal or local law only. The law of nature and nations, has never -acknowledged it. The jurists of all countries agree. The Digest of the -Roman Law enacts the early dictum of the pagan jurist, that “so far as -the law of nature is concerned, all men are equal”; and fugitives -escaping from a country, in which they were slaves, villains, or serfs, -into another country, have, for centuries past, been held free, and -acknowledged free, by judicial decisions of European countries, even -though the municipal law of the country, in which the slave had taken -refuge, acknowledged slavery within its own dominions. - - -§ 23. Therefore, if the United States wage war with a government which -admits of slavery, and a fugitive from the opposite belligerent offers -himself for protection to the American army, and is free from the -suspicion of mischievous intentions, he must be received and protected, -be he a fugitive slave or not; and once received and protected by the -United States, under the shield of the Law of Nations, he can never be -returned into slavery or given up to the enemy. - -Returning such a person would amount to enslaving a free person, and -neither the United States nor any officer under their authority has the -right to enslave any human being. No Christian state has claimed, for -centuries past the right of enslaving those who are free. - - -§ 24. All wanton violence committed against persons in the invaded -country, all destruction of property not commanded by the authorized -officer, all robbery, all pillage, or sacking, even after taking a place -by main force, all rape, wounding, maiming, or killing of such -inhabitants, are prohibited under the penalty of death, or such other -severe punishment as may seem adequate for the gravity of the offence. - -A soldier, private or officer, in the act of committing such violence, -and disobeying a superior, ordering to abstain from it, may be lawfully -killed on the spot by such superior. - - -§ 25. There is no prize money on land. All booty belongs to the United -States, and not to any individual. - - -§ 26. Neither officers nor privates are allowed to make use of their -position or power in the hostile country for transactions of private -gain, not even for commercial transactions otherwise legitimate. -Offences to the contrary committed by commissioned officers will be -punished with the loss of the gain, with cashiering, and such additional -punishment as the nature of the offence may require, not exceeding -years imprisonment. - - -§ 27. Crimes punishable by all penal codes, such as arson, murder, -maiming, assaults, highway robbery, theft, burglary, fraud, forgery, and -rape, if committed by an American soldier in a hostile country, against -its inhabitants, are not only punishable as at home, but in all cases in -which death is not inflicted, the severer punishment shall be preferred, -because the criminal has, as far as in him lay, prostituted the power -conferred on a man of arms, and prostrated the dignity of the United -States. - - - - - 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. - - - - -ARMED ENEMIES NOT BELONGING TO THE HOSTILE ARMY. SCOUTS. ARMED PROWLERS. - WAR-REBELS. - - -§ 48. Men, or squads of men, who commit hostilities, whether by -fighting, or inroads for destruction or plunder, or by raids of any -kind, without commission, without being part and portion of the -organized hostile army, and without sharing continuously in the war, but -who do so with intermitting returns to their homes and avocations, or -with the occasional assumption of the semblance of peaceful pursuits, -divesting themselves of the character or appearance of soldiers, such -men, or squads of men, are not public enemies, and, therefore, if -captured, not entitled to the privilege of a prisoner of war, but are -treated summarily as highway robbers or pirates. - - -§ 49. Nor is the privilege of the prisoner of war extended to single -armed prowlers, by whatever names they may be called, or to persons of -the enemy’s territory, who steal within the lines of the hostile army, -for the purpose of robbing, killing, destroying bridges, roads, or -canals, or of robbing or destroying the mail, or of cutting the -telegraph wires. If captured, they are dealt with as pirates at sea are -treated. - - -§ 50. Scouts, that is, single soldiers, disguised in the dress of the -country, or in the uniform of the army hostile to their own, detailed or -organized to obtain information, if captured within the lines of the -captor, are treated as spies, and suffer death. - - -§ 51. Persons within an occupied territory, that rise in arms against -the occupying or conquering army, or against the authorities established -by the same, are war-rebels, and suffer death, whether they rise singly, -in small or large bands, and whether called upon to do so by their own, -but expelled, government or not. If captured, they are not prisoners of -war; nor are they, if discovered and secured before their conspiracy has -matured to an actual rising, or to armed violence. - -The Partisan proper, belonging to the army, although acting in a corps -separate from the main body, if captured, is a prisoner of war. - - - - - SPIES. TRAITORS. CAPTURED MESSENGERS. ABUSE OF THE FLAG OF TRUCE. - - -§ 52. All intercourse between the inhabitants of territories occupied by -belligerent armies, whether by traffic, by letter, by travel, or in any -other way, ceases. This is the general rule, to be observed without -special proclamation. - -Exceptions to this rule, whether by safe-conduct, or permission to trade -on a small or large scale, or by exchanging mails, or by travel from one -territory into the other, can take place only according to agreement -approved by the government, or by the highest military authority. - -Contraventions of this rule are highly punishable. - - -§ 53. Ambassadors, and all other diplomatic agents of neutral powers, -accredited to the enemy, ought to receive safe-conducts through the -territories occupied by the belligerents, unless there are military -reasons to the contrary, and unless they may reach the place of their -destination conveniently by another route. It implies no international -affront if the safe-conduct is declined. - - -§ 54. If a person belonging to the territory of the enemy, occupied by a -hostile army, gives information to the enemy, unauthorized to do so by -the occupying or conquering authority, such person is either a spy or -traitor, and in either case is punished with death. - - -§ 55. A spy is a person who secretly, in disguise or under false -pretence, seeks information with the intention of communicating it to -the enemy, or who causes others to do so. - -The spy is punished with death by hanging by the neck, whether or not he -succeeded in obtaining the information, or in conveying it to the enemy. - - -§ 56. If a citizen of the United States obtains information in a -legitimate manner, and betrays it to the enemy, be he a military or -civil officer, or a private citizen, he is a traitor, and is condemned -to death. - - -§ 57. All unauthorized and secret communication with the enemy, is -considered treasonable by the Law of War. - - -§ 58. A messenger carrying despatches, in whatever form, from one -portion of the army, or from a besieged place, to another portion of the -same army, or its government—if captured while doing so, in the enemy’s -territory, or in the territory occupied by the enemy, is treated by the -capturing enemy as a spy. - -The same fate awaits such messenger, although he may not have any -written despatch about him, when it can be proved that he is the carrier -of verbal messages. - -This does not apply to armed troops, ready to fight their way through, -although they may carry messages. - - -§ 59. If it be discovered, and fairly proved, that a flag of truce has -been abused for the surreptitious obtaining of military knowledge, the -bearer of the flag thus abusing his sacred character, is deemed a spy. - -So sacred is the character of a flag of truce, and so necessary is its -sacredness, that while its abuse is an especially heinous offence, great -caution is requisite, on the other hand, in convicting the bearer of a -flag of truce of this crime, and in punishing him accordingly. - - -§ 60. The Law of War, like the Criminal Law regarding other offences, -makes no difference on account of the difference of sexes, concerning -the spy, the traitor, or the war-rebel. - - -§ 61. Spies, 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 President of the United States, or, at a great distance from the -United States, by the chief commander of the army in the field. - - - - - EXCHANGE OF PRISONERS. FLAGS OF TRUCE. FLAGS OF PROTECTION. - - -§ 62. Exchanges of prisoners take place with prisoners of war -only—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. - - -§ 63. In exchanging prisoners of war, such numbers of persons of -inferior rank may be substituted as an equivalent for one of superior -rank, as may be agreed upon by cartel, which requires the sanction of -the President of the United States, or of the commander of the army in -the field. - - -§ 64. A prisoner of war is in honor bound truly to state to the captor -his rank, and not to assume a lower rank than belongs to him, in order -to cause a more advantageous exchange; nor a higher rank, for the -purpose of obtaining better treatment. - -Offences to the contrary have been justly punished by the commanders of -released prisoners. - - -§ 65. The surplus number of prisoners of war remaining after an exchange -has taken place, is sometimes released either for the payment of a -stipulated sum of money, or, in urgent cases, of provision, clothing, or -other necessaries. - -Such arrangement, however, requires the sanction of the highest -authority. - - -§ 66. The exchange of prisoners of war is an act of convenience to both -belligerents. If no general cartel has been concluded, it cannot be -demanded by either of them. No belligerent is obliged to exchange -prisoners of war. - -A cartel is null and void so soon as either party has violated it. - - -§ 67. No exchange of prisoners shall be made except after complete -capture, and after an accurate account of all, and a list of the -captured officers, has been taken. - -No exchange shall take place during or immediately after an engagement. - - -§ 68. A flag of truce cannot insist on being admitted. - -It must always be admitted with great caution. - -Unnecessary frequency is carefully to be avoided. - -A flag of truce offering himself during an engagement can be admitted as -a very rare exception only. It is no breach of good faith to retain such -a flag of truce, if admitted during the engagement. Firing is not -allowed to cease at the appearance of a flag of truce in battle. - -If a flag of truce, presenting himself during an engagement, is killed -or wounded, it furnishes no ground of complaint whatever. - - -§ 69. It is customary to designate by certain flags of protection the -hospitals, in places which are shelled, so that the besieging enemy may -avoid firing on them. The same has been done in battles, when hospitals -are situated within the district of the engagement. - -An honorable belligerent allows himself to be guided by these flags or -signals of protection as much as the contingencies and the necessities -of the fight will permit. - -Honorable belligerents even request by flags of truce to designate the -hospitals within the territory of the enemy, so that they may be spared. - -It is duly considered an act of military bad faith, of infamy or -fiendishness, to deceive the enemy either by such flags of protection, -or by the request to hoist them. - - -§ 70. The besieging belligerent has sometimes requested the besieged to -designate the buildings containing collections of works of art, -scientific museums, astronomical observatories or precious libraries, so -that their destruction may be prevented as much as possible. - -The United States highly commend such conduct to their armies, and -remind them that some instances of this care for civilization in the -midst of destructive war, even in remote antiquity, are recorded in -history. - - - - - THE PAROLE. - - -§ 71. Prisoners of war may be released from captivity not only by -exchange, but, under certain circumstances, also by parole. - -The term Parole designates, in military language, the pledge of -individual good faith and honor to do, or to omit doing, certain acts, -after he who gives his parole shall have been dismissed, wholly or -partially, from the power of the enemy. - -The pledge of the parole is always an individual, but not a private act. - - -§ 72. The parole applies chiefly to prisoners of war, whom the captor -allows to return to their country, or to live in greater freedom within -the captor’s country or territory, on conditions implied by the parole. - - -§ 73. Release of prisoners of war by exchange, is the general rule; -release by parole is the exception. - - -§ 74. Breaking the parole not to fight again during the war or until -exchanged, is punished with death, when the person breaking the parole -is captured again. - -Accurate lists, therefore, of the paroled persons, must be kept by the -belligerents. - - -§ 75. Commissioned officers only, are allowed to give their parole, and -they must do it with the permission of their superior, as long as a -superior in rank is within reach. - -Paroling must always take place by the exchange of two written -documents, in which the name and rank of the paroled individual are -accurately and truthfully stated. - - -§ 76. No wholesale paroling, done by an officer for a number of -inferiors in rank, is permitted or valid. - -No paroling on the battle-field; no paroling of entire portions of -troops after a battle; no dismissal of large numbers of prisoners with a -general declaration that they are paroled, is permitted, or of any -value. - -Every officer who fails in this respect, is to be punished and -cashiered. - - -§ 77. In capitulations for the surrender of strong places or fortified -camps, the commanding officer, in cases of urgent necessity, may -stipulate that the troops under his command shall not fight again in the -war until exchanged; [but no more.] - - -§ 78. The usual pledge given in the parole is not to serve in the -existing war, or not to serve for a stated time, unless exchanged. - -This pledge refers only to the active service in the field, against the -paroling belligerent or his allies actively engaged in the same war. It -does not refer to internal service, such as recruiting or drilling the -recruits, fortifying places not besieged, to quelling civil commotions, -to fighting against belligerents unconnected with the paroling -belligerents, or to civil or diplomatic service for which the paroled -officer may be employed. - - -§ 79. If the government does not approve of the parole, the paroled -officer must return into captivity, and should the enemy refuse to -receive him, he is free of his parole. - - -§ 80. A belligerent government may declare by a general order, whether -it will allow paroling, and on what conditions it will allow it. Such -order is communicated to the enemy. - - -§ 81. No prisoner of war can be forced by the hostile government to -parole himself, and no government is obliged to parole prisoners of war, -or to parole all captured officers, if it paroles any. As the pledging -of the parole is an individual act, so is paroling, on the other hand, -an act of choice on the part of the belligerent. - - -§ 82. Civil officers kept as prisoners of war, may be paroled; but no -citizens without office, no citizens in a merchant vessel stopped by a -privateer or man-of-war, can be paroled. Nor can inhabitants of places -or territories occupied by the enemy, be paroled by the latter. Their -government does not lose its claim for military service upon such -persons, should they give their parole, for it is of no value. If they -should be paroled, and, being captured at a later period as soldiers, -should not be treated by the captor as prisoners of war, such conduct of -the enemy would be ground for retaliation. - - - - - ARMISTICE. CAPITULATION. - - -§ 83. An armistice is the cessation of active hostilities for a period, -agreed upon between belligerents. It must be agreed upon in writing, and -duly ratified by the highest authorities of the contending parties. - - -§ 84. Armistices may be general, and valid for all points and lines of -the belligerents, or special, that is, referring to certain troops or -certain territories only. - -Armistices may be concluded for a definite time or for an unsettled -time, with a stipulated period, which must elapse between the notice -given by either party that hostilities will be resumed and the actual -resumption of hostilities; or they may be concluded for a definite time, -and so much longer as may be found convenient for the belligerents, with -the obligation of giving due notice of the resumption of hostilities, a -fixed time previous to the actual resumption. - - -§ 85. The motives which induce the one or the other belligerent to -conclude an armistice, whether it be expected to be preliminary for an -ultimate treaty of peace, or to prepare during the armistice for a more -vigorous prosecution of the war, does in no way affect the character of -the armistice itself. - - -§ 86. Every armistice involves not only the idea of the cessation of -actual hostility, that is of attacking the enemy, but also that the -hostile armies or troops remain in _status quo_ with reference to the -position of the hostile armies opposite to or fronting one another. - -Neither belligerent is allowed to extend his troops to the injury of the -other, or to make any change in his front; but each belligerent in the -open field, may do whatever he may deem advantageous for securing or -fortifying himself in his position, if it can be done without extending -or advancing his lines or posts, and he may receive additional troops, -supplies, or ammunition. He may levy new troops during the armistice. - - -§ 87. The law of war is in full action during an armistice except only, -as to fighting and hostile changes of the front; or if the armistice is -a general one, as to the sending hostile expeditions to distant places. - - -§ 88. Armistices are binding for the belligerent governments from the -day of the agreed commencement; but the officers of the armies are -responsible from the day only when they receive official information of -the conclusion of the armistice. If any injury results to one or the -other party from this difference, which cannot be avoided in war, it -belongs to the province of the belligerent governments to seek redress, -and to provide for the remedy. Military officers having thus done the -injury cannot be made responsible for the same in any way, nor do these -injuries amount to cases requiring retaliation. - - -§ 89. Commanding officers have the right to conclude armistices -extending to the district over which their command extends, but such -armistice is subject to the ratification of the superior authority, and -ceases so soon as it is made known that the armistice is not ratified, -even if a certain time for the elapsing between giving notice of -cessation and the resumption of hostilities should have been stipulated -for. - - -§ 90. It is incumbent upon the contracting parties of an armistice, to -stipulate what intercourse of persons or traffic between the inhabitants -of the territories occupied by the hostile armies shall be allowed, if -any. - -If nothing is stipulated the intercourse remains suspended as during -actual hostilities. - -An armistice is not a partial or a temporary peace; it is only the -suspension of attack or actual injury. - - -§ 91. When an armistice is concluded between a fortified place and the -army besieging it, it is agreed by all the authorities on this subject, -that the besieger must cease all extension, perfection, or advance of -his attacking works as much so as from the attacks by main force. - -But there is a difference of opinion among the martial jurists, whether -the besieged have the right to repair breaches or to erect new works of -defence within the place during an armistice. - -[It is therefore declared by the United States, that they neither claim -for themselves, nor allow to their enemies, the right of the besieged to -repair breeches or to erect new works of defence during an armistice, -unless the contrary be distinctly stipulated in the agreement concluding -the armistice.] - -The United States expect every American officer to stipulate distinctly -for the one or the other, in an armistice which he may conclude with the -enemy. - - -§ 92. So soon as a capitulation is signed, the capitulator has no right -to demolish, destroy, or injure the works, arms, stores, or ammunition, -in his possession, during the time which elapses between the signing and -the execution of the capitulation, unless otherwise stipulated in the -same. - - -§ 93. So soon as an armistice is broken, hostilities recommence in all -their vigor on all points, without previous notice. - -The injured belligerent government must seek redress. - -[Prisoners captured during a breach of the armistice, are nevertheless -prisoners of war, whether they are officers or privates.] - - -§ 94. Armistices and capitulations are sacredly to be observed, in good -faith and military honor; and since capitulations imply many conditions -and measures which cannot be altered or retraced, if the government does -not ratify them, the utmost caution and undaunted fortitude must prevail -in agreeing to them. - - -§ 95. Belligerents frequently conclude an armistice, while their -plenipotentiaries are met to discuss the conditions of a treaty of -peace; but, as often, the plenipotentiaries meet without a preliminary -armistice. In the latter case, the war is carried on without any -abatement, and the army must not suffer itself to be influenced by any -inconvenience which the changes of fortune in the field may exercise on -the diplomatic discussions. It belongs to the belligerent governments to -adjust these inconveniences, and not to the generals to slacken the war -on these, or, indeed, on any other occasions. - - - - - ASSASSINATION. - - -§ 96. The Law of War does not allow proclaiming either an individual -belonging to the hostile army, or a citizen, or a subject of the hostile -government, an outlaw, that may be slain without trial by any captor, -any more than the modern law of peace allows such international -outlawry; on the contrary, it abhors such outrage. The sternest -retaliation would follow the murder committed in consequence of such -proclamation, made by whatever authority. - - -§ 97. The American people, as all civilized nations, look with horror -upon offers of rewards for the assassination of any enemies, as relapses -into the disgraceful courses of savage times. - -The assassination of a prisoner of war, is a murder of the blackest -kind, and if it takes place, in consequence of the offer of a reward or -not, and remains unpunished by the hostile government, the Law of War -authorizes the most impressive retaliation, so that the repetition of a -crime most dangerous to civilization, may be prevented, and a downward -course into barbarity may be arrested. - - - - - Suggestions may be addressed to - FRANCIS LIEBER, No. 48 East 34th - street, New York City. - ------------------------------------------------------------------------- - - - - - TRANSCRIBER’S NOTES - - - 1. Silently corrected typographical errors. - 2. Retained anachronistic and non-standard spellings as printed. - 3. 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You may copy it, give it away or re-use it under the terms of -the Project Gutenberg License included with this eBook or online at -www.gutenberg.org. If you are not located in the United States, you'll have -to check the laws of the country where you are located before using this ebook. - -Title: A Code for the Government of Armies in the Field, - as authorized by the laws and usages of war on land. - -Author: Francis Lieber - -Release Date: December 8, 2016 [EBook #53699] - -Language: English - -Character set encoding: UTF-8 - -*** START OF THIS PROJECT GUTENBERG EBOOK CODE FOR GOVERNMENT OF ARMIES *** - - - - -Produced by Richard Tonsing and the Online Distributed -Proofreading Team at http://www.pgdp.net (This file was -produced from images generously made available by The -Internet Archive) - - - - - - -</pre> - - -<div class='tnotes covernote'> - -<p class='c000'><strong>Transcriber's Note:</strong></p> - -<p class='c000'>The cover image was created by the transcriber and is placed in the public domain.</p> - -</div> - -<div> - <span class='pageno' id='Page_1'>1</span> - <h1 class='c001'><span class='xlarge'>A CODE</span><br /> <br /> <span class='small'>FOR THE</span><br /> <br /> Government of Armies in the Field,<br /> <br /> <span class='large'>AS AUTHORIZED BY THE LAWS AND USAGES OF WAR ON LAND.</span></h1> -</div> - -<p class='c002'>Printed as manuscript for the Board appointed by the Secretary of -War [Special Orders, No. 399,] “To Propose Amendments or Changes -in the Rules and Articles of War, and a Code of Regulations for the -Government of Armies in the Field, as authorized by the Laws and -Usages of War.”</p> - -<div class='nf-center-c1'> - <div class='nf-center'> - <div>By FRANCIS LIEBER, Member of the Board.</div> - <div class='c003'><span class='sc'>February, 1863.</span></div> - </div> -</div> - -<div class='ph1'> - -<div class='nf-center-c1'> -<div class='nf-center c004'> - <div>CODE.</div> - </div> -</div> - -</div> - -<div class='chapter'> - <h2 class='c005'>MARTIAL LAW. MILITARY NECESSITY. RETALIATION.</h2> -</div> - -<p class='c006'>§ 1. A place, district, or country, invested or occupied -by an enemy, stands, in consequence of the occupation, under -the Martial Law of the investing or invading army, -whether any proclamation declaring Martial Law, or any -public warning to the inhabitants, has been issued or not. -Martial Law is the immediate and direct effect and consequence -of occupation or conquest.</p> - -<p class='c000'>The presence of a hostile army proclaims its Martial -Law.</p> - -<p class='c006'>§ 2. Martial Law does not cease during the hostile occupation, -except by special proclamation, ordered by the commander -in chief; or by special mention in the treaty of -peace, concluding the war, when the occupation of a place -<span class='pageno' id='Page_2'>2</span>or territory continues beyond the conclusion of peace, as -one of the conditions of the same.</p> - -<p class='c006'>§ 3. Martial Law in a hostile country, consists in the suspension, -by the occupying military authority, of the criminal -and civil law, and of the domestic administration and -government in the occupied place or territory, and in the -substitution of military rule and force, for the same; as well -as in the dictation of general laws—as far as military necessity -requires this suspension, substitution, and dictation.</p> - -<p class='c000'>It is not unusual to proclaim that the administration of -all civil and penal law shall continue, as in times of peace, -unless specially interfered with by the military authority.</p> - -<p class='c006'>§ 4. Martial Law, although called law, does not consist in -a body of rules of action. There is not even a distinct term -for it in other languages.</p> - -<p class='c000'>Martial Law in a conquered or invaded country, or place, -is temporary Military Absolutism, in the hands of commanders, -who, therefore, must take care that it does not degenerate -into arbitrary despotism. Martial Law is not the -reckless use of military power by the highest or lowest in -arms. Military oppression is not Martial Law.</p> - -<p class='c006'>§ 5. Military Necessity, as understood by modern civilized -nations, consists in the necessity of those measures -which are indispensable for the obtaining of the ends of the -war, and are lawful according to the modern law and usages -of war.</p> - -<p class='c006'>§ 6. Modern times are distinguished from earlier ages, -by the existence, at one and the same time, of many nations -and great governments, related to one another in close -intercourse. They draw abreast like chariot horses.</p> - -<p class='c000'>Peace is their normal condition; war is the exception. -The ultimate object of all modern war is a renewed state of -peace.</p> - -<p class='c000'>The more vigorously wars are pursued, the better it is for -humanity. Sharp wars are brief.</p> - -<p class='c000'>Ever since the formation and co-existence of modern nations, -and ever since wars have become great national wars, -War has come to be acknowledged not to be its own end, -<span class='pageno' id='Page_3'>3</span>but the means to obtain great ends of state, or to consist in -defence against wrong; and no conventional restriction of -the modes adopted to injure the enemy is any longer admitted; -but the law of war imposes many limitations and -restrictions on principles of justice, faith, and honor.</p> - -<p class='c006'>§ 7. Military Necessity admits of all direct destruction of -life or limb of the armed enemies, and of those whose destruction -is incidentally unavoidable in the armed contests -of the war; it allows of the capturing of every armed enemy, -and every enemy of importance to the hostile government, -or of peculiar danger to the captor; it allows of all -destruction and obstruction of property, of the ways and -channels of traffic, travel, or communion, and of all withholding -of sustenance or means of life from the enemy; of -all appropriation necessary for the subsistence and safety of -the army, and of all deception which does not involve the -breaking of good faith either positively pledged regarding -agreements entered into during the war, or supposed by the -modern law of war to exist, even in the fiercest struggle, as -a basis of intercourse between honorable belligerents. Men -who take up arms against one another in public war, do not -cease on this account to be moral beings, responsible to one -another, and to God.</p> - -<p class='c000'>Military Necessity does not admit of cruelty—that is, the -infliction of suffering for the sake of suffering or for revenge;—nor -of maiming or wounding except in fight, nor of -torture to extort confessions; it does not admit of the use of -poison in any way, nor of the devastation of districts for the -sake of creating depopulated districts, since it is the will of -our Maker that in the normal state the land shall be tilled -and peopled; and, in general, Military Necessity does not -include any act of hostility which makes the return to peace -unnecessarily difficult.</p> - -<p class='c006'>§ 8. In modern wars all civil and penal law continues to -take its usual course in the enemy’s places and territories -under Martial Law, unless interrupted or stopped by order -of the occupying military power; but all the functions of -the hostile government, legislative, executive, or administrative, -whether of a general, provincial, or local character, -<span class='pageno' id='Page_4'>4</span>cease under Martial Law, or continue only with the assistance -or special approbation of the occupier or invader.</p> - -<p class='c006'>§ 9. Martial Law extends to property and persons, whether -they are subjects of the enemy, or aliens to that government.</p> - -<p class='c000'>Consuls, among American and European nations, are not -diplomatic agents. Nevertheless, their offices and persons -will be subjected to Martial Law in cases of urgent necessity -only.</p> - -<p class='c000'>Soldiers are rarely billeted in their houses; but their property -and business, if they are engaged in any, are not exempted.</p> - -<p class='c000'>Any delinquency they commit against the established -military rule, may be punished as in the case of any other -inhabitant, and such punishment furnishes no reasonable -ground for international complaint.</p> - -<p class='c000'>The functions of ambassadors, ministers, or other diplomatic -agents, accredited by neutral powers to the hostile -government, cease in the invaded, occupied, or conquered -places or territories.</p> - -<p class='c006'>§ 10. Martial Law affects chiefly the police and collection -of public revenue and taxes, whether imposed by the expelled -government or by the invader, and refers mainly to -the support and efficiency of the army, its safety and the -safety of its operations.</p> - -<p class='c000'>It allows of no individual violence; and since it consists -in the substitution of military rule for the established law -and its administration, and because it is founded on military -force, it is incumbent upon all military authorities -acting by Martial Law, to be strictly guided by the principles -of justice, honor, and humanity—virtues adorning a soldier -even more than other men, for the very reason that he -possesses the power of his arms against the unarmed.</p> - -<p class='c006'>§ 11. The law of war does not only disclaim all cruelty -and bad faith concerning engagements concluded with the -enemy during the war (§ 7), but also the breaking of stipulations -solemnly contracted by the belligerents, in time of -peace, and avowedly intended to remain in force in case of -war between the contracting powers.</p> - -<p class='c000'><span class='pageno' id='Page_5'>5</span>It disclaims all extortions and other transactions for -individual gain; all acts of private revenge or connivance -at such acts.</p> - -<p class='c000'>Offences to the contrary shall be severely punished in the -American army, and especially so if committed by officers.</p> - -<p class='c006'>§ 12. Whenever feasible, Martial Law is carried out, in -cases of individual offences, by courts-martial, and sentences -of death shall be executed only by the approval of the commander -of the army corps, provided the urgency of the case -does not require a speedier execution. In no case shall a -sentence of death by court-martial be executed without the -approval of a general officer.</p> - -<p class='c000'>The finding of a court-martial, judging an enemy, may -be set aside, in urgent cases, by the authority which has -called together the court-martial, when a new court-martial -is to be ordered; but it is against the plain demands of -justice and fairness, if the authority, which has ordered a -court-martial, not only sets aside the finding, but inflicts a -severer punishment than that in the finding. Instances -to the contrary of this rule, in the history of war, although -in the case of great captains, are not to be imitated.</p> - -<p class='c006'>§ 13. The law of war can no more wholly dispense with -Retaliation than can the law of nations, of which it is a -branch. Yet civilized nations acknowledge Retaliation as -the sternest feature of war. A reckless enemy often leaves -to his opponent no other means of securing himself against -the repetition of barbarous outrage.</p> - -<p class='c000'>The American people demand of their generals that Retaliation -be never resorted to as a measure of mere revenge, -but only as a means of protective retribution, and, moreover, -cautiously, justly, and unavoidably; that is to say, retaliation -shall only be resorted to after careful inquiry, not -blinded by passion, into the real occurrence, and the -character of the misdeeds that may demand retribution, -after an unsuccessful summons of the enemy to punish the -evil-doers, and without transgressing the bounds of strict -retaliation.</p> - -<p class='c000'>Doubtful Retaliation removes the belligerents farther and -farther from the mitigating rules of a regular war, and by -rapid steps leads them nearer to the internecine wars of -savages.</p> - -<div class='chapter'> - <span class='pageno' id='Page_6'>6</span> - <h2 class='c005'>PUBLIC AND PRIVATE PROPERTY OF THE ENEMY. PROTECTION OF PERSONS, AND ESPECIALLY WOMEN; OF RELIGION, THE ARTS AND SCIENCES. PUNISHMENT OF CRIMES AGAINST THE INHABITANTS OF HOSTILE COUNTRIES.</h2> -</div> - -<p class='c006'>§ 14. A victorious army appropriates all public money, -seizes all public movable property until further direction -by its government, and sequesters, for its own benefit, or -that of its government, all real property belonging to the -hostile government or nation.</p> - -<p class='c006'>§ 15. A victorious army, by the martial power inherent -in the same, may suspend, change, disacknowledge, or -abolish, as far as the martial power extends, the relations -which arise from the services due, according to the existing -laws of the invaded country, from one citizen, subject, or -native of the same to another.</p> - -<p class='c000'>The commander of the army must leave it to the ultimate -treaty of peace to settle the permanency of this -change.</p> - -<p class='c006'>§ 16. As a general rule, the property belonging to -churches, to hospitals, or other establishments of an exclusively -charitable or eleemosynary character, to establishments -of education, or foundations for the promotion of -knowledge, whether public schools, universities, academies -of learning or observatories, museums of the fine arts, or of -a scientific character—such property shall not be considered -by the armies of the United States, public property in the -sense of paragraph 14.</p> - -<p class='c000'>In exceptional cases, such as richly endowed churches or -convents, their property may be taxed with military contributions.</p> - -<p class='c006'>§ 17. Classical works of art, noble fabrics, libraries, -scientific collections, or precious instruments, such as astronomic -telescopes, as well as hospitals, must be tenderly -secured in the name of common humanity and civilization, -against all avoidable injury, even when they are contained -in fortified places, whilst besieged or bombarded.</p> - -<p class='c006'><span class='pageno' id='Page_7'>7</span>§ 18. If such, works of art, libraries, collections, or instruments -belonging to the hostile nation or government, can -be removed without injury, the ruler of the conquering -state or nation may order them to be seized and removed -for the benefit of the said nation. The ultimate ownership -is to be settled by the ensuing treaty of peace.</p> - -<p class='c000'>In no case ought they to be sold or given away by the -captor or the victorious government during the war, still -less ought they ever to be privately appropriated, or wantonly -destroyed or injured.</p> - -<p class='c006'>§ 19. The United States acknowledge and protect, in -hostile countries occupied by them, religion and morality; -unmixed private property—that is to say, property in which -neither private and public property, nor the ideas of -property and humanity, or person, are mixed;—the persons -of the inhabitants, especially those of women; and the -sacredness of domestic relations. Offences to the contrary -are to be rigorously punished.</p> - -<p class='c000'>This rule does not interfere with the right of the victorious -invader to tax the people or their property, to levy -forced loans, to billet soldiers, or to appropriate property -especially houses, land, boats, or ships, and churches, for temporary -and military uses.</p> - -<p class='c006'>§ 20. Private property, unless forfeited by crimes or by -offences of the owner against the safety of the army or the -dignity of the United States, and after due conviction of the -owner by court-martial, can be seized only by way of -military necessity, for the support or other benefit of the -army or of the United States.</p> - -<p class='c000'>If the owner has not fled, the commanding and seizing -officer will give receipts, which may serve the spoliated -owner to obtain indemnity from his own government, or -which, if the seized property consists in large magazines -and stores, or extensive real property—such as the demolition -of houses, or the seizure of extensive lands for the -erection of fortifications—may be ultimately accounted for -or disposed of by the treaty of peace concluding the war.</p> - -<p class='c006'>§ 21. The salaries of civil officers of the hostile government -who remain in the invaded territory, and continue -<span class='pageno' id='Page_8'>8</span>the work of their office, and can continue it according to the -circumstances arising out of the war—such as judges, -administrative or police officers, officers of city or communal -governments—are paid from the public revenue of the -invaded territory, until the military government has reason -wholly or partially to discontinue it. Salaries or -incomes connected with purely honorary titles, are always -stopped.</p> - -<p class='c006'>§ 22. There exists no law or body of authoritative rules -of action between hostile armies, except that branch of the -law of nature and nations, which is called the law and -usages of war on land.</p> - -<p class='c000'>All municipal law of the ground on which the armies -stand, or of the countries to which they belong, is silent and -of no effect between armies in the field.</p> - -<p class='c000'>Slavery, complicating and confounding the ideas of property, -(that is of a thing,) and of personality, (that is of -humanity,) exists according to municipal or local law only. -The law of nature and nations, has never acknowledged it. -The jurists of all countries agree. The Digest of the Roman -Law enacts the early dictum of the pagan jurist, that “so -far as the law of nature is concerned, all men are equal”; -and fugitives escaping from a country, in which they were -slaves, villains, or serfs, into another country, have, for -centuries past, been held free, and acknowledged free, by -judicial decisions of European countries, even though the -municipal law of the country, in which the slave had taken -refuge, acknowledged slavery within its own dominions.</p> - -<p class='c006'>§ 23. Therefore, if the United States wage war with a -government which admits of slavery, and a fugitive from -the opposite belligerent offers himself for protection to the -American army, and is free from the suspicion of mischievous -intentions, he must be received and protected, be -he a fugitive slave or not; and once received and protected -by the United States, under the shield of the Law of Nations, -he can never be returned into slavery or given up to the -enemy.</p> - -<p class='c000'>Returning such a person would amount to enslaving a -free person, and neither the United States nor any officer -<span class='pageno' id='Page_9'>9</span>under their authority has the right to enslave any human -being. No Christian state has claimed, for centuries past -the right of enslaving those who are free.</p> - -<p class='c006'>§ 24. All wanton violence committed against persons in -the invaded country, all destruction of property not commanded -by the authorized officer, all robbery, all pillage, or -sacking, even after taking a place by main force, all rape, -wounding, maiming, or killing of such inhabitants, are -prohibited under the penalty of death, or such other severe -punishment as may seem adequate for the gravity of the -offence.</p> - -<p class='c000'>A soldier, private or officer, in the act of committing such -violence, and disobeying a superior, ordering to abstain -from it, may be lawfully killed on the spot by such -superior.</p> - -<p class='c006'>§ 25. There is no prize money on land. All booty belongs -to the United States, and not to any individual.</p> - -<p class='c006'>§ 26. Neither officers nor privates are allowed to make -use of their position or power in the hostile country for -transactions of private gain, not even for commercial -transactions otherwise legitimate. Offences to the contrary -committed by commissioned officers will be punished with -the loss of the gain, with cashiering, and such additional -punishment as the nature of the offence may require, not -exceeding years imprisonment.</p> - -<p class='c006'>§ 27. Crimes punishable by all penal codes, such as arson, -murder, maiming, assaults, highway robbery, theft, burglary, -fraud, forgery, and rape, if committed by an American soldier -in a hostile country, against its inhabitants, are not only -punishable as at home, but in all cases in which death is not -inflicted, the severer punishment shall be preferred, because -the criminal has, as far as in him lay, prostituted the power -conferred on a man of arms, and prostrated the dignity of -the United States.</p> - -<div class='chapter'> - <span class='pageno' id='Page_10'>10</span> - <h2 class='c005'>DESERTERS. PRISONERS OF WAR. BOOTY ON THE BATTLEFIELD.</h2> -</div> - -<p class='c006'>§ 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.</p> - -<p class='c006'>§ 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.</p> - -<p class='c000'>All soldiers, of whatever species of arms; all men who -belong to the rising <i><span lang="fr" xml:lang="fr">en masse</span></i> 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.</p> - -<p class='c006'>§ 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.</p> - -<p class='c000'>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.</p> - -<p class='c006'><span class='pageno' id='Page_11'>11</span>§ 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.</p> - -<p class='c000'>American generals are permitted, if they see fit, to exchange -captured surgeons and others belonging to the medical -staff.</p> - -<p class='c006'>§ 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.</p> - -<p class='c006'>§ 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.</p> - -<p class='c000'>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 <i><span lang="la" xml:lang="la">sacramentum</span></i>, -changed the homicide of an enemy, from murder -to a lawful act.</p> - -<p class='c000'>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.</p> - -<p class='c000'>The United States cannot retaliate by enslavement; -therefore death must be the retaliation for this crime against -the Law of Nations.</p> - -<p class='c006'>§ 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.</p> - -<p class='c006'><span class='pageno' id='Page_12'>12</span>§ 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.</p> - -<p class='c000'>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.</p> - -<p class='c000'>[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.]</p> - -<p class='c000'>Troops that give no quarter, have no right to kill enemies -already disabled on the ground, or prisoners captured -by other troops.</p> - -<p class='c000'>It is against the usage of modern war, because it is savage, -to resolve, in hatred and revenge, to give no quarter.</p> - -<p class='c000'>All troops of the enemy, known or discovered to give no -quarter to any portion of the army, receive none.</p> - -<p class='c006'>§ 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.</p> - -<p class='c006'>§ 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.</p> - -<p class='c000'>Unnecessary or revengeful destruction of life, is not -lawful.</p> - -<p class='c000'>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.</p> - -<p class='c000'>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 -<span class='pageno' id='Page_13'>13</span>no one who fears a supreme avenger of wrong, will poison -his arrow.</p> - -<p class='c006'>§ 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.</p> - -<p class='c006'>§ 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.</p> - -<p class='c000'>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.</p> - -<p class='c000'>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.</p> - -<p class='c006'>§ 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.</p> - -<p class='c000'>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.</p> - -<p class='c006'>§ 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 -<span class='pageno' id='Page_14'>14</span>alone releases captives, according to rules prescribed by -itself.</p> - -<p class='c006'>§ 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.</p> - -<p class='c006'>§ 43. Prisoners of war are fed upon plain and wholesome -food, according to circumstances, and are treated with all -humanity.</p> - -<p class='c000'>They may be required to work for the benefit of the captor’s -government, according to their rank and condition.</p> - -<p class='c000'>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.</p> - -<p class='c006'>§ 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.</p> - -<p class='c000'>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.</p> - -<p class='c006'>§ 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.</p> - -<p class='c006'>§ 46. Every captured wounded enemy is medically treated, -<span class='pageno' id='Page_15'>15</span>according to the ability of the medical staff, like a wounded -friend.</p> - -<p class='c006'>§ 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.</p> - -<div class='chapter'> - <h2 class='c005'>ARMED ENEMIES NOT BELONGING TO THE HOSTILE ARMY. SCOUTS. ARMED PROWLERS. WAR-REBELS.</h2> -</div> - -<p class='c006'>§ 48. Men, or squads of men, who commit hostilities, -whether by fighting, or inroads for destruction or plunder, -or by raids of any kind, without commission, without being -part and portion of the organized hostile army, and without -sharing continuously in the war, but who do so with intermitting -returns to their homes and avocations, or with the -occasional assumption of the semblance of peaceful pursuits, -divesting themselves of the character or appearance of soldiers, -such men, or squads of men, are not public enemies, -and, therefore, if captured, not entitled to the privilege of a -prisoner of war, but are treated summarily as highway robbers -or pirates.</p> - -<p class='c006'>§ 49. Nor is the privilege of the prisoner of war extended -to single armed prowlers, by whatever names they may be -called, or to persons of the enemy’s territory, who steal -within the lines of the hostile army, for the purpose of robbing, -killing, destroying bridges, roads, or canals, or of robbing -or destroying the mail, or of cutting the telegraph wires. -If captured, they are dealt with as pirates at sea are treated.</p> - -<p class='c006'>§ 50. Scouts, that is, single soldiers, disguised in the dress -of the country, or in the uniform of the army hostile to -their own, detailed or organized to obtain information, if -captured within the lines of the captor, are treated as spies, -and suffer death.</p> - -<p class='c006'>§ 51. Persons within an occupied territory, that rise in -<span class='pageno' id='Page_16'>16</span>arms against the occupying or conquering army, or against -the authorities established by the same, are war-rebels, and -suffer death, whether they rise singly, in small or large -bands, and whether called upon to do so by their own, but -expelled, government or not. If captured, they are not prisoners -of war; nor are they, if discovered and secured before -their conspiracy has matured to an actual rising, or to armed -violence.</p> - -<p class='c000'>The Partisan proper, belonging to the army, although -acting in a corps separate from the main body, if captured, -is a prisoner of war.</p> - -<div class='chapter'> - <h2 class='c005'>SPIES. TRAITORS. CAPTURED MESSENGERS. ABUSE OF THE FLAG OF TRUCE.</h2> -</div> - -<p class='c006'>§ 52. All intercourse between the inhabitants of territories -occupied by belligerent armies, whether by traffic, by -letter, by travel, or in any other way, ceases. This is the -general rule, to be observed without special proclamation.</p> - -<p class='c000'>Exceptions to this rule, whether by safe-conduct, or permission -to trade on a small or large scale, or by exchanging -mails, or by travel from one territory into the other, can -take place only according to agreement approved by the -government, or by the highest military authority.</p> - -<p class='c000'>Contraventions of this rule are highly punishable.</p> - -<p class='c006'>§ 53. Ambassadors, and all other diplomatic agents of -neutral powers, accredited to the enemy, ought to receive -safe-conducts through the territories occupied by the belligerents, -unless there are military reasons to the contrary, and -unless they may reach the place of their destination conveniently -by another route. It implies no international -affront if the safe-conduct is declined.</p> - -<p class='c006'>§ 54. If a person belonging to the territory of the enemy, -occupied by a hostile army, gives information to the enemy, -unauthorized to do so by the occupying or conquering authority, -such person is either a spy or traitor, and in either -case is punished with death.</p> - -<p class='c006'>§ 55. A spy is a person who secretly, in disguise or under -false pretence, seeks information with the intention of communicating -it to the enemy, or who causes others to do so.</p> - -<p class='c000'><span class='pageno' id='Page_17'>17</span>The spy is punished with death by hanging by the neck, -whether or not he succeeded in obtaining the information, -or in conveying it to the enemy.</p> - -<p class='c006'>§ 56. If a citizen of the United States obtains information -in a legitimate manner, and betrays it to the enemy, be he -a military or civil officer, or a private citizen, he is a traitor, -and is condemned to death.</p> - -<p class='c006'>§ 57. All unauthorized and secret communication with -the enemy, is considered treasonable by the Law of War.</p> - -<p class='c006'>§ 58. A messenger carrying despatches, in whatever form, -from one portion of the army, or from a besieged place, to -another portion of the same army, or its government—if -captured while doing so, in the enemy’s territory, or in the -territory occupied by the enemy, is treated by the capturing -enemy as a spy.</p> - -<p class='c000'>The same fate awaits such messenger, although he may -not have any written despatch about him, when it can be -proved that he is the carrier of verbal messages.</p> - -<p class='c000'>This does not apply to armed troops, ready to fight their -way through, although they may carry messages.</p> - -<p class='c006'>§ 59. If it be discovered, and fairly proved, that a flag -of truce has been abused for the surreptitious obtaining of -military knowledge, the bearer of the flag thus abusing his -sacred character, is deemed a spy.</p> - -<p class='c000'>So sacred is the character of a flag of truce, and so necessary -is its sacredness, that while its abuse is an especially -heinous offence, great caution is requisite, on the other -hand, in convicting the bearer of a flag of truce of this crime, -and in punishing him accordingly.</p> - -<p class='c006'>§ 60. The Law of War, like the Criminal Law regarding -other offences, makes no difference on account of the difference -of sexes, concerning the spy, the traitor, or the war-rebel.</p> - -<p class='c006'>§ 61. Spies, traitors, and war-rebels are not exchanged -according to the common law of war.</p> - -<p class='c000'>The exchange of such persons would require a special cartel, -<span class='pageno' id='Page_18'>18</span>authorized by the President of the United States, or, at -a great distance from the United States, by the chief commander -of the army in the field.</p> - -<div class='chapter'> - <h2 class='c005'>EXCHANGE OF PRISONERS. FLAGS OF TRUCE. FLAGS OF PROTECTION.</h2> -</div> - -<p class='c006'>§ 62. Exchanges of prisoners take place with prisoners of -war only—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.</p> - -<p class='c006'>§ 63. In exchanging prisoners of war, such numbers of -persons of inferior rank may be substituted as an equivalent -for one of superior rank, as may be agreed upon by cartel, -which requires the sanction of the President of the United -States, or of the commander of the army in the field.</p> - -<p class='c006'>§ 64. A prisoner of war is in honor bound truly to state -to the captor his rank, and not to assume a lower rank than -belongs to him, in order to cause a more advantageous exchange; -nor a higher rank, for the purpose of obtaining -better treatment.</p> - -<p class='c000'>Offences to the contrary have been justly punished by the -commanders of released prisoners.</p> - -<p class='c006'>§ 65. The surplus number of prisoners of war remaining -after an exchange has taken place, is sometimes released -either for the payment of a stipulated sum of money, or, in -urgent cases, of provision, clothing, or other necessaries.</p> - -<p class='c000'>Such arrangement, however, requires the sanction of the -highest authority.</p> - -<p class='c006'>§ 66. The exchange of prisoners of war is an act of convenience -to both belligerents. If no general cartel has been -concluded, it cannot be demanded by either of them. No -belligerent is obliged to exchange prisoners of war.</p> - -<p class='c000'>A cartel is null and void so soon as either party has violated -it.</p> - -<p class='c006'>§ 67. No exchange of prisoners shall be made except -<span class='pageno' id='Page_19'>19</span>after complete capture, and after an accurate account of all, -and a list of the captured officers, has been taken.</p> - -<p class='c000'>No exchange shall take place during or immediately after -an engagement.</p> - -<p class='c006'>§ 68. A flag of truce cannot insist on being admitted.</p> - -<p class='c000'>It must always be admitted with great caution.</p> - -<p class='c000'>Unnecessary frequency is carefully to be avoided.</p> - -<p class='c000'>A flag of truce offering himself during an engagement -can be admitted as a very rare exception only. It is no -breach of good faith to retain such a flag of truce, if admitted -during the engagement. Firing is not allowed to -cease at the appearance of a flag of truce in battle.</p> - -<p class='c000'>If a flag of truce, presenting himself during an engagement, -is killed or wounded, it furnishes no ground of complaint -whatever.</p> - -<p class='c006'>§ 69. It is customary to designate by certain flags of protection -the hospitals, in places which are shelled, so that -the besieging enemy may avoid firing on them. The same -has been done in battles, when hospitals are situated within -the district of the engagement.</p> - -<p class='c000'>An honorable belligerent allows himself to be guided by -these flags or signals of protection as much as the contingencies -and the necessities of the fight will permit.</p> - -<p class='c000'>Honorable belligerents even request by flags of truce to -designate the hospitals within the territory of the enemy, so -that they may be spared.</p> - -<p class='c000'>It is duly considered an act of military bad faith, of infamy -or fiendishness, to deceive the enemy either by such -flags of protection, or by the request to hoist them.</p> - -<p class='c006'>§ 70. The besieging belligerent has sometimes requested -the besieged to designate the buildings containing collections -of works of art, scientific museums, astronomical observatories -or precious libraries, so that their destruction -may be prevented as much as possible.</p> - -<p class='c000'>The United States highly commend such conduct to their -armies, and remind them that some instances of this care for -civilization in the midst of destructive war, even in remote -antiquity, are recorded in history.</p> - -<div class='chapter'> - <span class='pageno' id='Page_20'>20</span> - <h2 class='c005'>THE PAROLE.</h2> -</div> - -<p class='c006'>§ 71. Prisoners of war may be released from captivity not -only by exchange, but, under certain circumstances, also by -parole.</p> - -<p class='c000'>The term Parole designates, in military language, the -pledge of individual good faith and honor to do, or to omit -doing, certain acts, after he who gives his parole shall have -been dismissed, wholly or partially, from the power of the -enemy.</p> - -<p class='c000'>The pledge of the parole is always an individual, but not -a private act.</p> - -<p class='c006'>§ 72. The parole applies chiefly to prisoners of war, whom -the captor allows to return to their country, or to live in -greater freedom within the captor’s country or territory, on -conditions implied by the parole.</p> - -<p class='c006'>§ 73. Release of prisoners of war by exchange, is the -general rule; release by parole is the exception.</p> - -<p class='c006'>§ 74. Breaking the parole not to fight again during the -war or until exchanged, is punished with death, when the -person breaking the parole is captured again.</p> - -<p class='c000'>Accurate lists, therefore, of the paroled persons, must be -kept by the belligerents.</p> - -<p class='c006'>§ 75. Commissioned officers only, are allowed to give -their parole, and they must do it with the permission of -their superior, as long as a superior in rank is within reach.</p> - -<p class='c000'>Paroling must always take place by the exchange of two -written documents, in which the name and rank of the -paroled individual are accurately and truthfully stated.</p> - -<p class='c006'>§ 76. No wholesale paroling, done by an officer for a -number of inferiors in rank, is permitted or valid.</p> - -<p class='c000'>No paroling on the battle-field; no paroling of entire -portions of troops after a battle; no dismissal of large numbers -of prisoners with a general declaration that they are -paroled, is permitted, or of any value.</p> - -<p class='c000'>Every officer who fails in this respect, is to be punished -and cashiered.</p> - -<p class='c006'><span class='pageno' id='Page_21'>21</span>§ 77. In capitulations for the surrender of strong places -or fortified camps, the commanding officer, in cases of urgent -necessity, may stipulate that the troops under his command -shall not fight again in the war until exchanged; [but -no more.]</p> - -<p class='c006'>§ 78. The usual pledge given in the parole is not to serve -in the existing war, or not to serve for a stated time, unless -exchanged.</p> - -<p class='c000'>This pledge refers only to the active service in the field, -against the paroling belligerent or his allies actively engaged -in the same war. It does not refer to internal service, -such as recruiting or drilling the recruits, fortifying -places not besieged, to quelling civil commotions, to fighting -against belligerents unconnected with the paroling belligerents, -or to civil or diplomatic service for which the -paroled officer may be employed.</p> - -<p class='c006'>§ 79. If the government does not approve of the parole, -the paroled officer must return into captivity, and should -the enemy refuse to receive him, he is free of his parole.</p> - -<p class='c006'>§ 80. A belligerent government may declare by a general -order, whether it will allow paroling, and on what conditions -it will allow it. Such order is communicated to the -enemy.</p> - -<p class='c006'>§ 81. No prisoner of war can be forced by the hostile -government to parole himself, and no government is obliged -to parole prisoners of war, or to parole all captured officers, -if it paroles any. As the pledging of the parole is an individual -act, so is paroling, on the other hand, an act of -choice on the part of the belligerent.</p> - -<p class='c006'>§ 82. Civil officers kept as prisoners of war, may be paroled; -but no citizens without office, no citizens in a merchant -vessel stopped by a privateer or man-of-war, can be -paroled. Nor can inhabitants of places or territories occupied -by the enemy, be paroled by the latter. Their government -does not lose its claim for military service upon such -persons, should they give their parole, for it is of no value. If -they should be paroled, and, being captured at a later period -<span class='pageno' id='Page_22'>22</span>as soldiers, should not be treated by the captor as prisoners -of war, such conduct of the enemy would be ground for -retaliation.</p> - -<div class='chapter'> - <h2 class='c005'>ARMISTICE. CAPITULATION.</h2> -</div> - -<p class='c006'>§ 83. An armistice is the cessation of active hostilities for -a period, agreed upon between belligerents. It must be -agreed upon in writing, and duly ratified by the highest -authorities of the contending parties.</p> - -<p class='c006'>§ 84. Armistices may be general, and valid for all points -and lines of the belligerents, or special, that is, referring -to certain troops or certain territories only.</p> - -<p class='c000'>Armistices may be concluded for a definite time or for an -unsettled time, with a stipulated period, which must elapse -between the notice given by either party that hostilities -will be resumed and the actual resumption of hostilities; or -they may be concluded for a definite time, and so much -longer as may be found convenient for the belligerents, with -the obligation of giving due notice of the resumption of -hostilities, a fixed time previous to the actual resumption.</p> - -<p class='c006'>§ 85. The motives which induce the one or the other -belligerent to conclude an armistice, whether it be expected -to be preliminary for an ultimate treaty of peace, or to -prepare during the armistice for a more vigorous prosecution -of the war, does in no way affect the character of the -armistice itself.</p> - -<p class='c006'>§ 86. Every armistice involves not only the idea of the -cessation of actual hostility, that is of attacking the enemy, -but also that the hostile armies or troops remain in <i><span lang="la" xml:lang="la">status -quo</span></i> with reference to the position of the hostile armies -opposite to or fronting one another.</p> - -<p class='c000'>Neither belligerent is allowed to extend his troops to the -injury of the other, or to make any change in his front; but -each belligerent in the open field, may do whatever he may -deem advantageous for securing or fortifying himself in his -position, if it can be done without extending or advancing -his lines or posts, and he may receive additional troops, -<span class='pageno' id='Page_23'>23</span>supplies, or ammunition. He may levy new troops during -the armistice.</p> - -<p class='c006'>§ 87. The law of war is in full action during an armistice -except only, as to fighting and hostile changes of the front; -or if the armistice is a general one, as to the sending hostile -expeditions to distant places.</p> - -<p class='c006'>§ 88. Armistices are binding for the belligerent governments -from the day of the agreed commencement; but the -officers of the armies are responsible from the day only -when they receive official information of the conclusion of -the armistice. If any injury results to one or the other -party from this difference, which cannot be avoided in war, -it belongs to the province of the belligerent governments to -seek redress, and to provide for the remedy. Military -officers having thus done the injury cannot be made responsible -for the same in any way, nor do these injuries amount -to cases requiring retaliation.</p> - -<p class='c006'>§ 89. Commanding officers have the right to conclude -armistices extending to the district over which their command -extends, but such armistice is subject to the ratification -of the superior authority, and ceases so soon as it is -made known that the armistice is not ratified, even if a -certain time for the elapsing between giving notice of cessation -and the resumption of hostilities should have been -stipulated for.</p> - -<p class='c006'>§ 90. It is incumbent upon the contracting parties of an -armistice, to stipulate what intercourse of persons or traffic -between the inhabitants of the territories occupied by the -hostile armies shall be allowed, if any.</p> - -<p class='c000'>If nothing is stipulated the intercourse remains suspended -as during actual hostilities.</p> - -<p class='c000'>An armistice is not a partial or a temporary peace; it is -only the suspension of attack or actual injury.</p> - -<p class='c006'>§ 91. When an armistice is concluded between a fortified -place and the army besieging it, it is agreed by all the -authorities on this subject, that the besieger must cease all -<span class='pageno' id='Page_24'>24</span>extension, perfection, or advance of his attacking works as -much so as from the attacks by main force.</p> - -<p class='c000'>But there is a difference of opinion among the martial -jurists, whether the besieged have the right to repair -breaches or to erect new works of defence within the place -during an armistice.</p> - -<p class='c000'>[It is therefore declared by the United States, that they -neither claim for themselves, nor allow to their enemies, the -right of the besieged to repair breeches or to erect new -works of defence during an armistice, unless the contrary -be distinctly stipulated in the agreement concluding the -armistice.]</p> - -<p class='c000'>The United States expect every American officer to -stipulate distinctly for the one or the other, in an armistice -which he may conclude with the enemy.</p> - -<p class='c006'>§ 92. So soon as a capitulation is signed, the capitulator -has no right to demolish, destroy, or injure the works, arms, -stores, or ammunition, in his possession, during the time -which elapses between the signing and the execution of -the capitulation, unless otherwise stipulated in the same.</p> - -<p class='c006'>§ 93. So soon as an armistice is broken, hostilities recommence -in all their vigor on all points, without previous -notice.</p> - -<p class='c000'>The injured belligerent government must seek redress.</p> - -<p class='c000'>[Prisoners captured during a breach of the armistice, are -nevertheless prisoners of war, whether they are officers or -privates.]</p> - -<p class='c006'>§ 94. Armistices and capitulations are sacredly to be observed, -in good faith and military honor; and since capitulations -imply many conditions and measures which cannot -be altered or retraced, if the government does not ratify -them, the utmost caution and undaunted fortitude must prevail -in agreeing to them.</p> - -<p class='c006'>§ 95. Belligerents frequently conclude an armistice, while -their plenipotentiaries are met to discuss the conditions of a -treaty of peace; but, as often, the plenipotentiaries meet -without a preliminary armistice. In the latter case, the war -is carried on without any abatement, and the army must -<span class='pageno' id='Page_25'>25</span>not suffer itself to be influenced by any inconvenience which -the changes of fortune in the field may exercise on the -diplomatic discussions. It belongs to the belligerent governments -to adjust these inconveniences, and not to the -generals to slacken the war on these, or, indeed, on any -other occasions.</p> - -<div class='chapter'> - <h2 class='c005'>ASSASSINATION.</h2> -</div> - -<p class='c006'>§ 96. The Law of War does not allow proclaiming either -an individual belonging to the hostile army, or a citizen, or a -subject of the hostile government, an outlaw, that may be -slain without trial by any captor, any more than the modern -law of peace allows such international outlawry; on the contrary, -it abhors such outrage. The sternest retaliation would -follow the murder committed in consequence of such proclamation, -made by whatever authority.</p> - -<p class='c006'>§ 97. The American people, as all civilized nations, look -with horror upon offers of rewards for the assassination of -any enemies, as relapses into the disgraceful courses of savage -times.</p> - -<p class='c000'>The assassination of a prisoner of war, is a murder of the -blackest kind, and if it takes place, in consequence of the -offer of a reward or not, and remains unpunished by the -hostile government, the Law of War authorizes the most -impressive retaliation, so that the repetition of a crime most -dangerous to civilization, may be prevented, and a downward -course into barbarity may be arrested.</p> - -<p class='c007'>Suggestions may be addressed to -<span class='sc'>Francis Lieber</span>, No. 48 East 34th -street, New York City.</p> - -<div class='pbb'> - <hr class='pb c003' /> -</div> -<div class='tnotes'> - -<div class='chapter'> - <h2 class='c005'>TRANSCRIBER’S NOTES</h2> -</div> - <ol class='ol_1 c008'> - <li>Silently corrected typographical errors. - - </li> - <li>Retained anachronistic and non-standard spellings as printed. - </li> - </ol> - -</div> - - - - - - - - -<pre> - - - - - -End of the Project Gutenberg EBook of A Code for the Government of Armies in -the Field,, by Francis Lieber - -*** END OF THIS PROJECT GUTENBERG EBOOK CODE FOR GOVERNMENT OF ARMIES *** - -***** This file should be named 53699-h.htm or 53699-h.zip ***** -This and all associated files of various formats will be found in: - http://www.gutenberg.org/5/3/6/9/53699/ - -Produced by Richard Tonsing and the Online Distributed -Proofreading Team at http://www.pgdp.net (This file was -produced from images generously made available by The -Internet Archive) - -Updated editions will replace the previous one--the old editions will -be renamed. - -Creating the works from print editions not protected by U.S. copyright -law means that no one owns a United States copyright in these works, -so the Foundation (and you!) can copy and distribute it in the United -States without permission and without paying copyright -royalties. 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