10. Martial law affects chiefly the police and collection of public revenue and taxes, whether imposed by the expelled government or by the invader, and refers mainly to the support and efficiency of the army, its safety, and the safety of its operations.

11. The law of war does not only disclaim all cruelty and bad faith concerning engagements concluded with the enemy during the war, but also the breaking of stipulations solemnly contracted by the belligerents in time of peace, and avowedly intended to remain in force in case of war between the contracting powers.

It disclaims all extortions and other transactions for individual gain; all acts of private revenge, or connivance at such acts. Offenses to the contrary shall be severely punished, and especially so if committed by officers.

16. Military necessity does not admit of ornelty, that is, the infliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor of tortures to extort confessions. It does not admit of the use of poison in any way, nor of the wanton devastation of a district. It admits of deception, but disclaims acts of perfidy; and, in general, military necessity does not include any act of hostility which makes the return of peace unnecessarily difficult.

17. War is not carried on by arms alone. It is lawful to starve the hostile belligerent, armed or unarmed, so that it leads to the speedier subjection of the enemy.

18. When the commander of a besieged place expels the non-combatants, in order to lessen the number of those who consume his stock of provisions, it is lawful, though an extreme measure, to drive them back, so as to hasten on

12. Whenever feasible, martial law is carried out in cases of individual offenders by military courts; but sentences of death shall be executed the surrender. only with the approval of the Chief Executive, provided the urgency of the case does not require a speedier execution, and then only with the approval of the chief commander.

13. Military jurisdiction is of two kinds: first, that which is conferred and defined by statute; second, that which is derived from the common law of war. Military offenses under the statute law must be tried in the manner therein directed; but military offenses which do not come within the statute must be tried and punished under the common law of war. The character of the courts which exercise these jurisdictions depends upon the local laws of each particular country.

In the armies of the United States the first is exercised by courts-martial, while cases which do not come within the "Rules and Articles of War," or the jurisdiction conferred by statute on courts-martial, are tried by military commissions.

19. Commanders, whenever admissible, inform the enemy of their intention to bombard a place, so that the non-combatants, and especially the women and children, may be removed before the bombardment commences. But it is no infraction of the common law of war to omit thus to inform the enemy. Surprise may be a necessity.

20. Public war is a state of armed hostility between sovereign nations or governments. Itis a law and requisite of civilized existence that men live in political, continuous societies, forming organized units, called states or nations, whose constituents bear, enjoy and suffer, advance and retrograde together, in peace and in war.

21. The citizen or native of a hostile country is thus an enemy, as one of the constituents of the hostile state or nation, and as such is subjected to the hardships of the war.

22. Nevertheless, as civilization has advanced during the last centuries, so has likewise steadily 14. Military necessity, as understood by advanced, especially in war on land, the dismodern civilized nations, consists in the neces-tinction between the private individual belongsity of those measures which are indispensable ing to a hostile country and the hostile country for securing the ends of the war, and which are lawful according to the modern law and usages of war.

itself, with its men in arms. The principle has been more and more acknowledged that the unarmed citizen is to be spared in person, property and honor as much as the exigencies of war will admit.

15. Military necessity admits of all direct destruction of life or limb of armed enemies, and of other persons whose destruction is incident- 23. Private citizens are no longer murdered, ally unavoidable in the armed contests of the enslaved or carried off to distant parts, and the war; it allows of the capturing of every armed inoffensive individual is as little disturbed in enemy, and every enemy of importance to the his private relations as the commander of the hostile government, or of peculiar danger to hostile troops can afford to grant in the overrulthe captor; it allows of all destruction of prop-ing demands of a vigorous war. erty, and obstruction of the ways and channels 24. The almost universal rule in remote times of traffic, travel or communication, and of all was, and continues to be with barbarous armies, withholding of sustenance or means of life from that the private individual of the hostile counthe enemy; of the appropriation of whatever an try is destined to suffer every privation of libenemy's country affords necessary for the sub-erty and protection, and every disruption of sistence and safety of the army, and of such deception as 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. Men who take up arms against one another in public war, do not cease, on this account, to be moral beings, responsible to one another and to God.

family ties. Protection was, and still is with uncivilized people, the exception.

25. In modern regular wars of the Europeans, and their descendants in other portions of the globe, protection of the inoffensive citizen of the hostile country is the rule; privation and disturbance of private relations are the exceptions.

26. Commanding generals may cause the

magistrates and civil officers of the hostile country to take the oath of temporary allegiance, or an oath of fidelity to their own victorious government or rulers, and they may expel every one who declines to do so. But whether they do so or not, the people and their civil officers owe strict obedience to them as long as they hold sway over the district or country, at the peril of their lives.

according to the existing laws of the invaded country, from one citizen, subject, or native of the same to another.

The commander of the army must leave it to the ultimate treaty of peace to settle the permanency of this change.

33. It is no longer considered lawful-on the contrary, it is held to be a serious breach of the law of war-to force the subjects of the enemy into the service of the victorious government, except the latter should proclaim, after a fair and complete conquest of the hostile country or district, that it is resolved to keep the country, district, or place permanently as its own, and make it a portion of its own country.

27. The law of war can no more wholly dispense with retaliation than can the law of nations, of which it is a branch. Yet civilized nations acknowledge retaliation as the sternest feature of war. A reckless enemy often leaves to his opponent no other means of securing himself against the repetition of barbarous outrage. 34. As a general rule, the property belong28. Retaliation will, therefore, never be re- ing to churches, to hospitals, or other estab sorted to as a measure of mere revenge, but only lishments of an exclusively charitable characas a means of protective retribution, and, more- ter, to establishments of education, or foundaover, cautiously and unavoidably; that is to tions for the promotion of knowledge, whether Bay, retaliation shall only be resorted to after public schools, universities, academies of learncareful inquiry into the real occurrence, and ing or observatories, museums of the fine arts, the character of the misdeeds that may demand retribution.

Unjust or inconsiderate 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.

29. Modern times are distinguished from earlier ages by the existence, at one and the same time, of many nations and great governments related to one another in close intercourse. Peace is their normal condition; war is the exception. The ultimate object of all modern war is a renewed state of peace.

The more vigorously wars are pursued, the better it is for humanity. Sharp wars are brief. 80. Ever since the formation and co-existence of modern nations, and ever since wars have become great national wars, war has come to be acknowledged not to be its own end, but the means to obtain great ends of state, or to consist in defense against wrong; and no conventional restriction of the modes adopted to injure the enemy is any longer admitted; but the law of war imposes many limitations and restrictions on principles of justice, faith and honor.

SECTION II.

Public and private property of the enemy-Protection of persons, and especially women; of religion, the arts and sciences-Punishment of crimes against the inhabitants of hostile countries.

or of a scientific character-such property is not to be considered public property in the sense of paragraph 31; but it may be taxed or used when the public service may require it.

35. Classical works of art, libraries, scientific collections, or precious instruments, such as astronomical telescopes, as well as hospitals, must be secured against all avoidable injury, even when they are contained in fortified places while besieged or bombarded.

36. If such works of art, libraries, collections, or instruments belonging to a hostile nation or government, can be removed without injury, the ruler of the conquering state or nation may order them to be seized and removed for the benefit of the said nation. The ultimate ownership is to be settled by the ensuing treaty of peace.

In no case shall they be sold or given away, if captured by the armies of the United States, nor shall they ever be privately appropriated, or wantonly destroyed or injured.

37. The United States acknowledge and protect, in hostile countries occupied by them, religion and morality; strictly private property; the persons of the inhabitants, especially those of women; and the sacredness of domestic relations. Offenses to the contrary shall be rigorously punished.

This rule does not interfere with the right of the victorious invader to tax the people or their property, to levy forced loans, to billet soldiers, or to appropriate property, especially houses, land, boats or ships, and churches, for temporary and military uses.

81. A victorious army appropriates all public 38. Private property, unless forfeited by money, seizes all public movable property until crimes or by offenses of the owner, can be seized further direction by its government, and seques- only by way of military necessity, for the supters for its own benefit or that of its govern- port or other benefit of the army or of the ment all the revenues of real property belong- United States.

ing to the hostile government or nation. The If the owner has not fled, the commanding title to such real property remains in the abey-officer will cause receipts to be given, which ance during military occupation, and until the may serve the spoliated owner to obtain inconquest is made complete. demnity.

82. A victorious army, by the martial power inherent in the same, may suspend, change, or abolish, as far as the martial power extends, the relations which arise from the service due,

89. The salaries of civil officers of the hos tile government who remain in the invaded territory, and continue the work of their office, and can continue it according to the circum

stances arising out of the war-such as judges, administrative or police officers, officers of city or communal governments are paid from the public revenue of the invaded territory, until the military government has reason wholly or partially to discontinue it. Salaries or incomes connected with purely honorary titles are always stopped.

40. There exists no law or body of authoritative rules of action between hostile armies, except that branch of the law of nature and nations which is called the law and usages of war on land.

41. 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.

commercial transactions otherwise legitimate. Offenses to the contrary committed by commissioned officers will be punished with cashiering, or such other punishment as the nature of the offense may require; if by soldiers, they shall be punished according to the nature of the offense. 47. Crimes punishable by all penal codes, such as arson, murder, maiming, assaults, highway robbery, theft, burglary, fraud, forgery and rape, if committed by an American soldier in a hostile country against its inhabitants, are not only punishable as at home, but in all cases in which death is not inflicted, the severer punishment shall be preferred.

SECTION III.

Deserters-Prisoners of War-Hostages-Booty on the Battle-field.

42. Slavery, complicating and confounding the ideas of property (that is of a thing), and of personalty (that is of humanity), exists ac48. Deserters from the American army, havcording to municipal or local law only. The ing entered the service of the enemy, suffer law of nature and nations has never acknowl-death if they fall again into the hands of the edged it. The digest of the Roman law enacts United States, whether by capture, or being dethe early dictum of the pagan jurist, that "so livered up to the American army; and if a defar as the law of nature is concerned, all men serter from the enemy, having taken service in are equal." Fugitives escaping from a country the army of the United States, is captured by in which they were slaves, villains or serfs, the enemy, and punished by them with death or into another country, have, for centuries past, otherwise, it is not a breach against the law and been held free and acknowledged free by judi-usages of war, requiring redress or retaliation. cial decisions of European countries, even 49. A prisoner of war is a public enemy though the municipal law of the country in armed or attached to the hostile army for active which the slave had taken refuge acknowledged slavery within its own dominions.

43. Therefore, in a war between the United States and a belligerent which admits of slavery, if a person held in bondage by that belligerent be captured by, or come as a fugitive under, the protection of the military forces of the United States, such person is immediately entitled to the rights and privileges of a freeman. To return such person into slavery would amount to enslaving a free person, and neither the United States nor any officer under their authority can enslave any human being. Moreover, a person so made free by the law of war is under the shield of the law of nations, and the former owner or State can have, by the law of post-liminy, no belligerent lien or claim of service.

aid, who has fallen into the hands of the captor, either fighting or wounded, on the field or in the hospital, by individual surrender or by capitulation.

All soldiers, of whatever species of arms; all men who belong to the rising en masse of the hostile country; all those who are attached to the army for its efficiency and promote directly the object of the war, except such as are hereinafter provided for; all disabled men or officers on the field or elsewhere, if captured; all enemies who have thrown away their arms and ask for quarter, are prisoners of war, and as such exposed to the inconveniences as well as entitled to the privileges of a prisoner of war.

50. Moreover, citizens who accompany an army for whatever purpose, such as sutlers, editors, or reporters of journals, or contractors, if captured, may be made prisoners of war, and be detained as such.

44. All wanton violence committed against persons in the invaded country, all destruction of property not commanded by the authorized The monarch and members of the hostile officer, all robbery, all pillage or sacking, even reigning family, male or female, the chief, and after taking a place by main force, all rape, all chief officers of the hostile government, its diwounding, maiming or killing of such inhab-plomatic agents, and all persons who are of itants, are prohibited under the penalty of death, or such other severe punishment as may seem adequate for the gravity of the offense.

A soldier, officer or private, in the act of committing such violence, and disobeying a superior ordering him to abstain from it, may be lawfully killed on the spot by such superior. 45. All captures and booty belong, according to the modern law of war, primarily, to the government of the captor.

Prize money, whether on sea or land, can now only be claimed under local law.

46. Neither officers nor soldiers are allowed to make use of their position or power in the hostile country for private gain, not even for

particular and singular use and benefit to the hostile army or its government, are, if captured on belligerent ground, and if unprovided with a safe-conduct granted by the captor's government, prisoners of war.

51. If the people of that portion of an invaded country which is not yet occupied by the enemy, or of the whole country, at the approach of a hostile army, rise, under a duly authorized levy, en masse to resist the invader, they are now treated as public enemies, and if captured, are prisoners of war.

52. No belligerent has the right to declare that he will treat every captured man in arms of a levy en masse as a brigand or bandit.

65. The use of the enemy's national standard, flag, or other emblem of nationality, for the purpose of deceiving the enemy in battle, is an act of perfidy by which they lose all claim to the protection of the laws of war.

If, however, the people of a country, or any 64. If American troops capture a train con portion of the same, already occupied by an ar- taining uniforms of the enemy, and the commy, rise against it, they are violators of the laws mander considers it advisable to distribute of war, and are not entitled to their protection. them for use among his men, some striking 53. The enemy's chaplains, officers of the mark or sign must be adopted to distinguish medical staff, apothecaries, hospital nurses and the American soldier from the enemy. servants, if they fall into the hands of the American army, are not prisoners of war, unless the commander has reasons to retain them. In this latter case, or if, at their own desire, they are allowed to remain with their captured companions, they are treated as prisoners of war, and may be exchanged if the commander sees fit. 54. A hostage is a person accepted as a pledge for the fulfillment of an agreement concluded between belligerents during the war, or in consequence of a war. Hostages are rare in the present age.

55. If a hostage is accepted, he is treated like a prisoner of war, according to rank and condition, as circumstances may admit.

66. Quarter having been given to an enemy by American troops, under a misapprehension of his true character, he may, nevertheless, be ordered to suffer death, if, within three days after the battle, it be discovered that he belong to a corps which gives no quarter.

67. The law of nations allows every sovéreign government to make war upon another sovereign state, and, therefore, admits of no rules or laws different from those of regular 56. A prisoner of war is subject to no pun- warfare, regarding the treatment of prisonere ishment for being a public enemy, nor is any of war, although they may belong to the army revenge wreaked upon him by the intentional of a government which the captor may coninfliction of any suffering, or disgrace, by cruel sider as a wanton and unjust assailant. imprisonment, want of food, by mutilation, 68. Modern wars are not internecine wars, death, or any other barbarity. in which the killing of the enemy is the object. The destruction of the enemy in modern war, and, indeed, modern war itself, are means to obtain that object of the belligerent which lies beyond the war.

57. So soon as a man is armed by a sovereign government, and takes the soldier's oath of fidelity, he is a belligerent; his killing, wounding, or other warlike acts, are no individual crimes or offenses. No belligerent has a right to declare that enemies of a certain class, color or condition, when properly organized as soldiers, will not be treated by him as public enemies.

Unnecessary or revengeful destruction of life is not lawful.

69. Outposts, sentinels, or pickets are not to be fired upon, except to drive them in, or when a positive order, special or general, has been 58. The law of nations knows of no distinc-issued to that effect. tion of color, and if an enemy of the United 70. The use of poison in any manner, be it States should enslave and sell captured persons of their army, it would be a case for the severest retaliation, if not redressed upon complaint.

to poison wells, or food, or arms, is wholly excluded from modern warfare. He that uses it puts himself out of the pale of the law and usages of war.

The United States can not retaliate by en- 71. Whoever intentionally inflicts additional slavement; therefore, death must be the retal-wounds on an enemy already wholly disabled, iation for this crime against the law of nations. or kills such an enemy, or who orders or en59. A prisoner of war remains answerable courages soldiers to do so, shall suffer death, if for his crimes committed against the captor's duly convicted, whether he belongs to the army army or people, committed before he was cap- of the United States, or is an enemy captured tured, and for which he has not been punished after having committed his misdeed. by his own authorities.

72. Money and other valuables on the person All prisoners of war are liable to the inflic-of a prisoner, such as watches or jewelry, as tion of retaliatory measures. well as extra clothing, are regarded by the 60. It is against the usage of modern war to American army as the private property of the resolve, in hatred and revenge, to give no quar-prisoner, and the appropriation of such valua ter. No body of troops has the right to declare bles or money is considered dishonorable, and that it will not give, and therefore will not ex- is prohibited. pect, quarter; but a commander is permitted to direct his troops to give no quarter, in great straits, when his own salvation makes it impossible to cumber himself with prisoners.

61. Troops that give no quarter have no right to kill enemies already disabled on the ground, or prisoners captured by other troops.

62. All troops of the enemy known or discovered to give no quarter in general, or to any portion of the army, receive none.

Nevertheless, if large sums are found upon the persons of prisoners, or in their possession, they shall be taken from them, and the surplus, after providing for their own support, appropriated for the use of the army, under the direction of the commander, unless otherwise ordered by the Government. Nor can prisoners claim, as private property, large sums found and captured in their train, although they had been placed in the private luggage of the prisoners.

63. Troops who fight in the uniform of their enemies, without any plain, striking, and uni- 73. All officers, when captured, must surrenform mark of distinction of their own, can ex-der their side-arms to the captor. They may pect no quarter. be restored to the prisoner in marked cases, by

the commander, to signalize admiration of his distinguished bravery, or approbation of his humane treatment of prisoners before his capture. The captured officer to whom they may be restored can not wear them during captivity.

74. A prisoner of war, being a public enemy, is a prisoner of the government, and not of the captor. No ransom can be paid by a prisoner of war to his individual captor, or to any officer in command. The government alone releases captives, according to rules prescribed by itself.

body for the purpose of making inroads into the territory occupied by the enemy. If captured, they are entitled to all the privileges of the prisoner of war.

82. Men, or squads of men, who commit hostilities, whether by fighting, or inroads for destruction or plunder, or by raids of any kind, without commission, without being part and portion of the organized hostile army, and without sharing continuously in the war, but who do so with intermitting returns to their homes and avocations, or with the occasional assumption of the semblance of peaceful pursuits, divesting themselves of the character or

75. Prisoners of war are subject to confinement or imprisonment such as may be deemed appearance of soldiers-such men, or squads necessary on account of safety, but they are to be subjected to no other intentional suffering or indignity. The confinement and mode of treating a prisoner may be varied during his captivity, according to the demands of safety.

76. Prisoners of war shall be fed upon plain and wholesome food, whenever practicable, and treated with humanity.

They may be required to work for the benefit of the captor's government, according to their rank and condition.

77. A prisoner of war who escapes may be shot, or otherwise killed in his flight; but neither death nor any other punishment shall be inflicted upon him simply for his attempt to escape, which the law of war does not consider a crime. Stricter means of security shall be used after an unsuccessful attempt at escape.

of men, are not public enemies, and, therefore, if captured, are not entitled to the privileges of prisoners of war, but shall be treated summarily as highway robbers or pirates.

83. Scouts, or single soldiers, if disguised in the dress of the country, or in the uniform of the army hostile to their own, employed in obtaining information, if found within or lurking about the lines of the captor, are treated as spies, and suffer death.

84. Armed prowlers, by whatever names they may be called, or persons of the enemy's territory, who steal within the lines of the hostile army, for the purpose of robbing, killing, or of destroying bridges, roads, or canals, or of robbing or destroying the mail, or of cutting the telegraph wires, are not entitled to the privileges of the prisoner of war.

85. War rebels are persons within an occupied territory who rise in arms against the ocIf, however, a conspiracy is discovered, the cupying or conquering army, or against the purpose of which is a united or general escape, authorities established by the same. If capthe conspirators may be rigorously punished, tured, they may suffer death, whether they rise even with death; and capital punishment may singly, in small or large bands, and whether also be inflicted upon prisoners of war discov-called upon to do so by their own, but expelled, ered to have plotted rebellion against the au- government or not. They are not prisoners of thorities of the captors, whether in union with war; nor are they, if discovered and secured fellow-prisoners or other persons. before their conspiracy has matured to an actual rising, or to armed violence.

78. If prisoners of war, having given no pledge nor made any promise on their honor, forcibly or otherwise escape, and are captured again in battle, after having rejoined their own army, they shall not be punished for their escape, but shall be treated as simple prisoners of war, although they will be subjected to stricter confinement.

79. Every captured wounded enemy shall be medically treated, according to the ability of the medical staff.

80. Honorable men, when captured, will abstain from giving to the enemy information concerning their own army, and the modern law of war permits no longer the use of any violence against prisoners, in order to extort the desired information, or to punish them for having given false information.

Safe-conduct

SECTION V.

Spies War traitors Captured messengers-Abuse of the flag of truce.

86. All intercourse between the territories occupied by belligerent armies, whether by traffic, by letter, by travel, or in any other way, ceases. This is the general rule, to be observed without special proclamation.

Exceptions to this rule, whether by safe-conduct, by permission to trade on a small or large scale, or by exchanging mails, or by travel from one territory into the other, can take place only according to agreement approved by the government, or by the highest military authority.

Contraventions of this rule are highly pun

ishable.

87. Ambassadors, and all other diplomatic agents of neutral powers, accredited to the enterritories occupied by the belligerents, unless emy, may receive safe-conducts through the there are military reasons to the contrary, and

81. Partisans are soldiers armed and wear- unless they may reach the place of their des ing the uniform of their army, but belonging tination conveniently by another route. It to a corps which acts detached from the main implies no international affront if the safe