dfibcrnmtnt uf grates in % Jficlfr,
AS AUTHORIZED BY THE LAWS AND USAGES OF WAEON LAND.
Printed as manuscript for the Board appointed by the Secretary of
War [Special Orders, Wo. 399.] i; To Propose Amendments or Changes
in the Kales and Articles of War, and a Code of Regulations for die
Government of Armies in the Field, as authorized by the Laws and
Usages of War."
By FRANCIS LILBCR, Member of tlic Board.
MARTIAL LAW. MILITARY NECESSITY. RETALIATION".
§ 1. A place, district, or country, invested or occupied
by an enemy, stands, in consequence of the occupation, un-
der 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 conse-
quence of occupation or conquest.
The presence of a hostile army proclaims its Martial
§ 2. Martial Law does not cease during the hostile occu-
pation, except by special proclamation, ordered by the com-
mander 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,
one of the conditions of the same.
§ 3. Martial Law in a hostile country, consists in the
pension, by the occupying military authority, of the crim-
inal 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 ; a- well
as in the dictation of general laws — as far as military n
sity 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 pi
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 pla
is temporary Military Absolutism, in the hands of com-
manders, -who, therefore, must take care that it does not de-
generate 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.
§ .">. Military Xecessity, as understood by modern "civil-
ized nations, consists in the uecessity of those measures
which are indispensable for the obtaining of the end- of the
war, and arc lawful according to the modern law and us
§ 6. Modern times arc distinguished from earlier ages,
bvthe existence, at one and the same time, of many nations
and creat governments, related to one another in close
intercourse. They draw abreast like chariot hoi-
Peace is their normal condition; war is the exception.
The ultimate object of all modern war i- a renewed state of
The more vigorously wars are pursued, the better it is for
humanity. Sharp war- are brief.
Ever since the formation and co-existence of modern na-
tions, and ever since wars have become great national wars,
War has come to be acknowledged not to be it- own end,
but the means to obtain great ends of stale, or to consist in
defence against wrong; and no conventional restriction of
the modes adopted to injure the enemy is any longer ad-
mitted ; 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 de-
struction is incidentally unavoidable in the armed contests
of the war; it allows of the capturing of every armed ene-
my, and every enemy of importance to the hostile govern-
ment, 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 with-
holding 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 taken]* arm-, 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 re-
venge ;— 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
§ S. 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 administra-
tive, whether of a general, provincial, or local character,
cease under Martial Law, or continue only with the a
ance or special approbation of the occupier or invader.
§ 9. Martial Law extends to property and pers< >ns, whether
they are subjects of the enemy, or aliens to that govern-
Consuls, among American and European nations, are not
diplomatic agents. Nevertheless, their offices and pe
will be subjected to Martial Law in cases of urgent n
Soldiers are rarely billeted in their houses ; but their prop-
erty and business, if tliey are engaged in any, are not ex-
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 diplo-
matic agents, accredited by neutral powers to the hostile 1
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 ex-
pelled 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 mili-
tary 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 anus against the unarmed.
§ 11. The law of war docs not only disclaim all cruelty
and bad faith concerning engagements concluded with the
enemy dming the war (§ 7), but also the breaking of stipu-
lations solemnly contracted by the belligerents, in time of
peace, and avowedly intended to remain j'ji force in case of
war between the contracting pow<
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 com-
mander 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
c;dled 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 mean- of securing himself against
the repetition of barbarous outrage.
The American people demand of their generals that Re-
taliation lie 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, retalia-
tion shall only be resorted to after careful inquiry, not
blinded by pas-ion, 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
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
PUBLIC AND PRIVATE PROPERTY OF THE ENEMY. PROTECTION
OF PERSONS, AND ESPECIALLY WOMEN; OF RELIGION, THE
AIM'S AND SCIENCES. PUNISHMENT OF CRIMES AGAINST THE
INHABITANTS OF BOSTILE COUNTRI]
§ 14. A victorious army appropriates all public moi
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, disacknowledgc, 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 ulti-
mate treaty of peace to settle the permanency of this
§ 10. As a, general rule, the property belonging to
churches, to hospitals, or other establishments of an exclu-
sively charitable or eleemosynary character, to establish-
ments 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 church*
convents, their property may be taxed with military con-
§17. Classical works of art, noble fabrics, libraries,
scientific collections, or precious instruments, such as astro-
nomic 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 instru-
ments belonging to the hostile nation or government, can
be removed without injury, the ruler of the conquering
state or nation may order them to he seized and removed
for the benefit of the said nation. The ultimate ownership
is to he 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 Avar, still
less ought they ever to be privately appropriated, or wan-
tonly destroyed or injured.
§ 19. The United State- 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 vic-
torious 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 tem-
porary and military i
§ 20. Private property, unless forfeited by crime- 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 bis own government, or
which, if the seized property consists in huge magazines
and store-, or extensive real property— such as the demoli-
tion 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 officer.- of the hostile govern-
ment who remain in the invaded territory, and continue
the work of their office, andean continue it according to the
circumstances arising out of the Mar such as jm
administrative or police officers, officers of city or communal
governments — are paid from the public revenue of the
invaded territory, until the military government lias rea-
son wholly or partially to discontinue it. Salaries or
incomes connected with purely honorary titles, are always
§ 22. There exists no law or body of authoritative i
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 prop-
erty, (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
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 decision?- of European countries, even though the
municipal law of the country, in which the slave had taken
refuge, acknowledged slavery within it- own dominion-.
§ 23. Therefore, if the United State- wage Avar 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 mis-
chievous intentions, he must be received and protected, be
he a fugitive slave or not ; and once received and prot<
by the United States, under the shield of the Law of N"a1
he can never be returned into slavery or given up to the
Returning such a person would amount to enslavii]
free person, and neither the United State- nor a]
under their authority has the right to enslave any human
being. Xo Christain state has claimed, for centuries past
the right of enslaving tln.se who are free.
§ 24:. All wanton violence committed against persons in
the invaded country, all destruction of property not com-
manded 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
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
§ 25. There is no prize money on land. All booty be-
longs to the United States, and not to any individual.
§ 20. Neither officers nor privates are allowed to make
use of their positiou 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 a- 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 ho-tile country, against its inhabitants, are not only
punishable as at home, but in all ca-es 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 V,\ l
>> 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 it' 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 deatli or otherwise, the United Stales 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 at
tached 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 ca-
All soldiers, of whatever species of arms ; all men who
belong to the rising en massi of the hostile country; all
those who are attached to the army for its efficiency, and pro-
mote directly the object of the war, such as officers of the
ariat or teamster-, if captured; all enemies who
have thrown away their arms and ask for quarter; all dis-
abled men or officers on the held or elsewhere : all such
persons are prisoners of war, and as sue 1 .! exposed to the
inconveniences as wed as entitled to the privih
prisoner of war.
§30. Moreover, citizen- who accompany an army for
whatever purpose, such as suttlers, 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 person- who are of particular and singular
use and benefit to the hostile army or it- government, are,
if captured on belligerent ground, and if unprovided with
a safe conduct granted by the captor's gov< rament, prison-
ers 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 lias reasons to re-
tain them. In such eases, 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 ex-
change captured surgeons and others belonging to the medi-
§ 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 cither barbarity.
^ 33. At all periods of history, ancient or modern, gov-
ernments 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
So soon a- a man is armed by a sovereign government,
and takes the soldier's oath of fidelity, he is a belligei
his killing, wounding, or other warlike acts, are no individ-
ual crimes or offences. Thus, in ancient times, the sacra-
mentum, changed the homicide of an enemy, from murder
to a lawful act.
The Law of Nations know- of no distinction of color,
and if an enemy of the United States should emlave 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, com-
mitted 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 righl to
declare that for a single occasion it will not give, and there-
fore 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 Avar, that it will not
give, and therefore does not expect, quarter. |
Troops that give no quarter, have no right to kill <
mies already disabled on the ground, or prisoners captured
by other troops.
It is against the usage of modern war, because ii is sav-
age, to resolve, in hatred and revenge, to give no quarter.
All troop- 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 govern-
ment to make Avar upon another sovereign state, and, there-
fore, 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 unju>t 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 Avars arc not internecine Avars, in which
the killing of the enemy is the object. The destruction of
the enemy, in modern war, and, indeed, modern Avar itself,
are means to obtain that object of the belligerent which
lies beyond the war.
Unnecessary or revengeful destruction of life, i> not
Outposts, sentinels, or pickets, are not tired upon, except
to drive them in, or when a positive order, special or gen-
eral, 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 modem warfare.
He that uses it, puts himself out of the pale of the law and
usages of Avar. Thousands of years ago it was held that
no one who fears a supreme avenger of wrong, will poison
§ 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 bat-
tle-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 belong-
ing to the regulation arms of the respective troops, such as
daggers or private pistols, belong to the captor or captors.
If any dispute arises umong 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.
£ 4(>. 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 ap-
propriation of such valuables or money is considered dis-
honorable, 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 ap-
propriated for the army. Nor can prisoners claim, as private
property, large sums found and captured in their train, al-
though 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
§42. Prisoners of war are subject to the confinemenl or
imprisonment deemed necessary on account of Bafety, but
they are subjected to no other intentional suffering or indig-
nity. The confinement, or mode of releasing the prisoner,
may be varied during his captivity according to the de-
mands of safety.
§ 43. Prisoners of war are i'vd upon plain and wholesome
food, according to circumstances, and are treated with all
They may be required to work for the benefit of the cap-
tor's government, according to their rank and condition.
They may be temporarily assigned, under proper restric-
tions, to private citizens willing to take them, and with
whom they may earn wages, and thus pay for their expen-
^44. A prisoner of war, who escapes, ma\ be shot, or
otherwise killed in his flight; but neither death nor any
other punishment is inflicted upon him simply for his at-
tempt to escape, which the law of war does not consider a
crime. Stricter means of security are used after an unsuc-
cessful 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 otherwisi
cape, 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.
§ 4G. Every captured wounded enemy is medically treated,
according to the ability of the medical staff, like a wounded
§47. Honorable men, when captured, will abstain from
giving to the enemy inform at inn concerning their own army,
and the modern law of war 'permits no longer the use of any
violence against prisoner--, in order to extort the desired
information, or to punish them for having given false infor-
ARMED ENEMIES NOT BELONGING TO THE HOSTILE ARMY.
SCOUTS. ARMED rROWLERS. 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 inter-
mitting 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 sol-
diers, 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 rob-
bers 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 rob-
bing, killing, destroying bridges, roads, or canals, or of rob-
ing or destroying the mail, or of cutting the telegraph wires.
If captured, they are dealt with as pirates at sea are treated.
8 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.it'
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, arc war-rebels, and
suffer death, whether they rise singly, in Bmall or large
bands, and whether called upon to do so by their own. but
expelled, government or not. If captured, they arenol pris-
oners of war; nor are they, if discovered and secured before
their conspiracy has matured to an actual rising, or to armed
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. TRATT0R8. CAPTURED MESSENGERS. ARUSE OF HIT:
FLAG OF TRUCE.
§52. All intercourse between 1 he inhabitants of territo-
ries 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 per-
mission to trade on ;v 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 bellig-
erents, unless there are military reasons to the contrary, and
unless they may reach the place of their destination con-
veniently 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 au-
thority, 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 disguiseor under
false pretence, seeks information with the intention of com-
municating it to the enemy, or who causes Others to do
The spy is punished with death by hanging by the neck,
whether or not lie succeeded in obtaining the information,
or in conveying it to the enemy.
§ 50. 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. Jf 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 neces-
sary 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 differ-
ence of sexes, concerning the spy, the traitor, or the war-
§ 01. Spies, traitors, and war-rebels are not exchanged
according to the common law of war.
The exchange of such persons would require a special car-
tel, authorized by the President of the United State-, or, at
a great distance from the United State-, by the chief < .
mander of the army in the field.
EXCHANGE OF PRISONERS. FLAGS OF TRUCE. I
§ 62. Exchange? of prisoners take place with prisoner
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 Presidenl of the United
States, or of the commander of the army in the field.
§ 64. A prisoner of Avar 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 ex-
change ; nor a higher rank, for the purpose of obtaining
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 rele
either for the payment of a stipulated sum of money, or, in
urgent cases, of provision, clothing, or other necessaries.
Such arrangement, however, require- the sanction of the
66. The exchange of prisoners of war is an acl of con-
venience 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 vio-
§ 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, lias been taken.
No exchange shall take place dming or immediately after
§ 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 Hag of truce offering himself during: an engajrement
can be admitted as a very rare exception only. It is no
breach of good faith to retain such a flag of truce, if ad-
mitted during the engagement. Tiring is not allowed to
pease at the appearance of a flag of truce in battle.
If a flag of truce, presenting himself during an engage-
ment, is killed or wounded, it furnishes no ground of com-
§ 69. it is customary to designate by certain flags of pro-
tection the hospitals, in places which are shelled, so that
the besieging enemy may avoid firing on them. The same
lias 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 contingen-
cies 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 in-
famy or fiendishness, to deceive the enemy either by such
flags of protection, or by the request to hoist them.
§ 7i). The besieging belligerent has sometimes requested
the besieged to designate the buildings containing collec-
tions of works of art, scientific museums, astronomical ob-
servatories 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.
§ 71. Prisoners of war may be released from captivity not
only by exchange, but, under certain circumstances, also by
The term Parole designates, in military language, the
pledge of individual good faith and honor to do, or to omit
doing, certain acts, alter he who gives his parole shall have
been dismissed, wholly or partially, from the power of the
The pledge of the parole is always an individual, but not
a private act.
§ 72. The parole applies chiefly to prisonersof 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. Pelease 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 paroh d persons, must he
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.
§ 70. Xo 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 huge; num-
bers of prisoners with a general declaration that they are
paroled, is permitted, or of any value.
Every officer who fails in this respect, i- to he punished
"7. In capital ;rrender of strong places
amanding officer, in cases of ur-
mand shall n ar until exchi g Jbut
;ce in th
d nt or his allies actively en-
-ame war. It d internal ser-
_ :• drillin. ing
_ Lvil coniniot:
^connected with the paroling bel-
liplomat! r which
r may be employed.
eminent do the par
return in1 uld
the enemy refuse I him, he is free of his par
ligerent government may declare _ eral
paroling, and on what eondi-
.ill alio* Such order - aunicated to the
var can be forced
role himself. aiRi _ '-obliged
*role all captured off
my. -V- the parole is an in-
_. :. I
q the pa: - nt.
r, may be pa-
nt no cit ithout ofi: > in a mer-
cluu] privateer or man-oi-war, can be
n inhabitants of places or ten ;eu-
the latter. Their govern-
me: ts claim for military service npjn such
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
AUMI-TK E. ( M'lTI I VIloN.
>j s o. An armistice is the cessation of active hostilities for
a period, agreed upon between belligerents. It mud be
agreed upon in writing, and duly ratified by the liighesl
authorities of the contending parties.
s? si. Armistices may lie general, and valid for all points
and line- of tin' belligerents, or special, thai is. referring
t<> certain troops or certain territories only.
Armistices may be concluded for a definite time or for an
unsettled time, with a stipulated period, which musl elapse
between the notice given by either party that hostilities
will lie resumed and the actual resumption of hostilities ; or
they may be concluded for a definite time, and so much
longer as maybe found convenient for the belligerents, with
the obligation of giving (\\w 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 he expected
to be preliminary for an ultimate treaty of peace, or to
prepare during the armistice for a more vigorous prosecu-
tion of the war, does in no way affect the character of the
§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 lie-tile 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 hi.- front; but
each belligerent in the open field, may do whatever he may
deem advantageous for securing or fortifying himself in Im-
position, if it can be done without extending or advancing
his lines of posts, and he may receive additional tro
supplies, or ammunition. He may levy new troops during
^ ST. 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 govern-
ments 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 respon-
sible for the same in any way, nor do these injuries amount
to cases requiring retaliation.
^ SO. Commanding officers have the right to conclude
armistices extending to the district over which their com-
mand extends, but such armistice is subject to the ratifica-
tion 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 cessa-
tion and the resumption of hostilities should have been
§ 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 worl
nincli so as from the attacks by main force.
But there is a difference of opinion anion-- the martial
jurists, whether the beseiged 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 State-, thai they
neither claim for themseh es, 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
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.
jj 93. So soon as an armistice is broken, hostilities
commence in all their vigor on all points, without previous
The injured belligerent government must .-eels- redress,
[Prisoners captured during a breach of the armistice, are
nevertheless prisoners of war. whether they are officers or
§ 94. Armistices and capitulations are sacredly to he ob-
served, in good faith and military honor : and since capitu-
lations 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 pre-
vail in agreeing to them.
§ 95. Belligerents frequently conclude an armistice, while
their plenipotentiaries are met to discus- the conditions of a
treaty of peace; but. a- often, the plenipotentiaries meet
without a preliminary armistice, fn the latter c war
is carried on without any abatement, and the arm\ in
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 gov-
ernments to adjust these inconvenience-, and not to the
generals to slacken the war on these, or, indeed, on any
• § 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 con-
trary, it abhors such outrage. The sternest retaliation would
follow the murder committed in consequence of such proc-
lamation, 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 sav-
The assassination of a prisoner of war, is a murder of the
blackest kind, and if it takes place, in eonsecpience of the
« ift'er 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 down-
ward course into barbarity may be arrested.
Suggestions may be addressed to
Francis Ltebek, No. 48 East 34th
New York City.