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Full text of "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""

A CODE 



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. 

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, 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 
Law. 

§ 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 



2 

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 
of war. 

§ 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 
peace. 

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 
unnecessarily difficult. 

§ 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- 
ment. 

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 
sity only. 

Soldiers are rarely billeted in their houses ; but their prop- 
erty and business, if tliey are engaged in any, are not ex- 
empted. 

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 
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 
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 
change. 

§ 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- 
tributions. 

§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 
stopped. 

§ 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 
enemy. 

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 
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 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. 



10 



DESERTERS. PRISONERS OF WAR. BOOTY ON THE V,\ l 

FIELD. 

>> 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- 
pitulation. 

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- 
cal 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 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 
exception. 

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. 



12 

§ 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 

lawful. 

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 



13 

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 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 



14 



alone releases captives, according to rules prescribed by 

itselt: 

§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 
humanity. 

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, 



15 

according to the ability of the medical staff, like a wounded 
friend. 

§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- 
mation. 

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 



1G 

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 
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. 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 



17 

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- 
rebel. 

§ 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- 
3 



18 

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 
PROTECTION. 

§ 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 
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 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 
highest authority. 

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- 
lated it. 

§ 67. No exchange of prisoners shall be made except 



19 

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 
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 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- 
plaint whatever. 

§ 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. 



20 



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, alter 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 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 
and cashiered. 



21 

"7. In capital ;rrender of strong places 

amanding officer, in cases of ur- 
_ 

mand shall n ar until exchi g Jbut 

no n: 

rve 
in t.- 

;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 

my. 

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 

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. 



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 
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 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 



23 

supplies, or ammunition. He may levy new troops during 
the armistice. 

^ 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 
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 



24 

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 
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. 

jj 93. So soon as an armistice is broken, hostilities 

commence in all their vigor on all points, without previous 

notice. 

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 

privates.] 

§ 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 



25 

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 
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 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- 
age times. 

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.