§ 1. A place, district, or country, invested or occupied by an enemy,
stands, in consequence of the occupation, under the Martial Law of the
investing or invading army, whether any proclamation declaring Martial
Law, or any public warning to the inhabitants, has been issued or not.
Martial Law is the immediate and direct effect and consequence of
occupation or conquest.
The presence of a hostile army proclaims its Martial Law.
§ 2. Martial Law does not cease during the hostile occupation, except by
special proclamation, ordered by the commander in chief; or by special
mention in the treaty of peace, concluding the war, when the occupation
of a place or territory continues beyond the conclusion of peace, as one
of the conditions of the same.
§ 3. Martial Law in a hostile country, consists in the suspension, by
the occupying military authority, of the criminal and civil law, and of
the domestic administration and government in the occupied place or
territory, and in the substitution of military rule and force, for the
same; as well as in the dictation of general laws—as far as military
necessity requires this suspension, substitution, and dictation.
It is not unusual to proclaim that the administration of all civil and
penal law shall continue, as in times of peace, unless specially
interfered with by the military authority.
§ 4. Martial Law, although called law, does not consist in a body of
rules of action. There is not even a distinct term for it in other
languages.
Martial Law in a conquered or invaded country, or place, is temporary
Military Absolutism, in the hands of commanders, who, therefore, must
take care that it does not degenerate into arbitrary despotism. Martial
Law is not the reckless use of military power by the highest or lowest
in arms. Military oppression is not Martial Law.
§ 5. Military Necessity, as understood by modern civilized nations,
consists in the necessity of those measures which are indispensable for
the obtaining of the ends of the war, and are lawful according to the
modern law and usages of war.
§ 6. Modern times are distinguished from earlier ages, by the existence,
at one and the same time, of many nations and great governments, related
to one another in close intercourse. They draw abreast like chariot
horses.
Peace is their normal condition; war is the exception. The ultimate
object of all modern war is a renewed state of peace.
The more vigorously wars are pursued, the better it is for humanity.
Sharp wars are brief.
Ever since the formation and co-existence of modern nations, and ever
since wars have become great national wars, War has come to be
acknowledged not to be its own end, but the means to obtain great ends
of state, or to consist in defence against wrong; and no conventional
restriction of the modes adopted to injure the enemy is any longer
admitted; but the law of war imposes many limitations and restrictions
on principles of justice, faith, and honor.
§ 7. Military Necessity admits of all direct destruction of life or limb
of the armed enemies, and of those whose destruction is incidentally
unavoidable in the armed contests of the war; it allows of the capturing
of every armed enemy, and every enemy of importance to the hostile
government, or of peculiar danger to the captor; it allows of all
destruction and obstruction of property, of the ways and channels of
traffic, travel, or communion, and of all withholding of sustenance or
means of life from the enemy; of all appropriation necessary for the
subsistence and safety of the army, and of all deception which does not
involve the breaking of good faith either positively pledged regarding
agreements entered into during the war, or supposed by the modern law of
war to exist, even in the fiercest struggle, as a basis of intercourse
between honorable belligerents. Men who take up arms against one another
in public war, do not cease on this account to be moral beings,
responsible to one another, and to God.
Military Necessity does not admit of cruelty—that is, the infliction of
suffering for the sake of suffering or for revenge;—nor of maiming or
wounding except in fight, nor of torture to extort confessions; it does
not admit of the use of poison in any way, nor of the devastation of
districts for the sake of creating depopulated districts, since it is
the will of our Maker that in the normal state the land shall be tilled
and peopled; and, in general, Military Necessity does not include any
act of hostility which makes the return to peace unnecessarily
difficult.
§ 8. In modern wars all civil and penal law continues to take its usual
course in the enemy’s places and territories under Martial Law, unless
interrupted or stopped by order of the occupying military power; but all
the functions of the hostile government, legislative, executive, or
administrative, whether of a general, provincial, or local character,
cease under Martial Law, or continue only with the assistance or special
approbation of the occupier or invader.
§ 9. Martial Law extends to property and persons, whether they are
subjects of the enemy, or aliens to that government.
Consuls, among American and European nations, are not diplomatic agents.
Nevertheless, their offices and persons will be subjected to Martial Law
in cases of urgent necessity only.
Soldiers are rarely billeted in their houses; but their property and
business, if they are engaged in any, are not exempted.
Any delinquency they commit against the established military rule, may
be punished as in the case of any other inhabitant, and such punishment
furnishes no reasonable ground for international complaint.
The functions of ambassadors, ministers, or other diplomatic agents,
accredited by neutral powers to the hostile government, cease in the
invaded, occupied, or conquered places or territories.
§ 10. Martial Law affects chiefly the police and collection of public
revenue and taxes, whether imposed by the expelled government or by the
invader, and refers mainly to the support and efficiency of the army,
its safety and the safety of its operations.
It allows of no individual violence; and since it consists in the
substitution of military rule for the established law and its
administration, and because it is founded on military force, it is
incumbent upon all military authorities acting by Martial Law, to be
strictly guided by the principles of justice, honor, and
humanity—virtues adorning a soldier even more than other men, for the
very reason that he possesses the power of his arms against the unarmed.
§ 11. The law of war does not only disclaim all cruelty and bad faith
concerning engagements concluded with the enemy during the war (§ 7),
but also the breaking of stipulations solemnly contracted by the
belligerents, in time of peace, and avowedly intended to remain in force
in case of war between the contracting powers.
It disclaims all extortions and other transactions for individual gain;
all acts of private revenge or connivance at such acts.
Offences to the contrary shall be severely punished in the American
army, and especially so if committed by officers.
§ 12. Whenever feasible, Martial Law is carried out, in cases of
individual offences, by courts-martial, and sentences of death shall be
executed only by the approval of the commander of the army corps,
provided the urgency of the case does not require a speedier execution.
In no case shall a sentence of death by court-martial be executed
without the approval of a general officer.
The finding of a court-martial, judging an enemy, may be set aside, in
urgent cases, by the authority which has called together the
court-martial, when a new court-martial is to be ordered; but it is
against the plain demands of justice and fairness, if the authority,
which has ordered a court-martial, not only sets aside the finding, but
inflicts a severer punishment than that in the finding. Instances to the
contrary of this rule, in the history of war, although in the case of
great captains, are not to be imitated.
§ 13. The law of war can no more wholly dispense with Retaliation than
can the law of nations, of which it is a branch. Yet civilized nations
acknowledge Retaliation as the sternest feature of war. A reckless enemy
often leaves to his opponent no other means of securing himself against
the repetition of barbarous outrage.
The American people demand of their generals that Retaliation be never
resorted to as a measure of mere revenge, but only as a means of
protective retribution, and, moreover, cautiously, justly, and
unavoidably; that is to say, retaliation shall only be resorted to after
careful inquiry, not blinded by passion, into the real occurrence, and
the character of the misdeeds that may demand retribution, after an
unsuccessful summons of the enemy to punish the evil-doers, and without
transgressing the bounds of strict retaliation.
Doubtful Retaliation removes the belligerents farther and farther from
the mitigating rules of a regular war, and by rapid steps leads them
nearer to the internecine wars of savages.
PUBLIC AND PRIVATE PROPERTY OF THE ENEMY. PROTECTION OF PERSONS, AND
ESPECIALLY WOMEN; OF RELIGION, THE ARTS AND SCIENCES. PUNISHMENT OF
CRIMES AGAINST THE INHABITANTS OF HOSTILE COUNTRIES.
§ 14. A victorious army appropriates all public money, seizes all public
movable property until further direction by its government, and
sequesters, for its own benefit, or that of its government, all real
property belonging to the hostile government or nation.
§ 15. A victorious army, by the martial power inherent in the same, may
suspend, change, disacknowledge, or abolish, as far as the martial power
extends, the relations which arise from the services due, according to
the existing laws of the invaded country, from one citizen, subject, or
native of the same to another.
The commander of the army must leave it to the ultimate treaty of peace
to settle the permanency of this change.
§ 16. As a general rule, the property belonging to churches, to
hospitals, or other establishments of an exclusively charitable or
eleemosynary character, to establishments of education, or foundations
for the promotion of knowledge, whether public schools, universities,
academies of learning or observatories, museums of the fine arts, or of
a scientific character—such property shall not be considered by the
armies of the United States, public property in the sense of paragraph
14.
In exceptional cases, such as richly endowed churches or convents, their
property may be taxed with military contributions.
§ 17. Classical works of art, noble fabrics, libraries, scientific
collections, or precious instruments, such as astronomic telescopes, as
well as hospitals, must be tenderly secured in the name of common
humanity and civilization, against all avoidable injury, even when they
are contained in fortified places, whilst besieged or bombarded.
§ 18. If such, works of art, libraries, collections, or instruments
belonging to the hostile nation or government, can be removed without
injury, the ruler of the conquering state or nation may order them to be
seized and removed for the benefit of the said nation. The ultimate
ownership is to be settled by the ensuing treaty of peace.
In no case ought they to be sold or given away by the captor or the
victorious government during the war, still less ought they ever to be
privately appropriated, or wantonly destroyed or injured.
§ 19. The United States acknowledge and protect, in hostile countries
occupied by them, religion and morality; unmixed private property—that
is to say, property in which neither private and public property, nor
the ideas of property and humanity, or person, are mixed;—the persons of
the inhabitants, especially those of women; and the sacredness of
domestic relations. Offences to the contrary are to be rigorously
punished.
This rule does not interfere with the right of the victorious invader to
tax the people or their property, to levy forced loans, to billet
soldiers, or to appropriate property especially houses, land, boats, or
ships, and churches, for temporary and military uses.
§ 20. Private property, unless forfeited by crimes or by offences of the
owner against the safety of the army or the dignity of the United
States, and after due conviction of the owner by court-martial, can be
seized only by way of military necessity, for the support or other
benefit of the army or of the United States.
If the owner has not fled, the commanding and seizing officer will give
receipts, which may serve the spoliated owner to obtain indemnity from
his own government, or which, if the seized property consists in large
magazines and stores, or extensive real property—such as the demolition
of houses, or the seizure of extensive lands for the erection of
fortifications—may be ultimately accounted for or disposed of by the
treaty of peace concluding the war.
§ 21. The salaries of civil officers of the hostile government who
remain in the invaded territory, and continue the work of their office,
and can continue it according to the circumstances arising out of the
war—such as judges, administrative or police officers, officers of city
or communal governments—are paid from the public revenue of the invaded
territory, until the military government has reason wholly or partially
to discontinue it. Salaries or incomes connected with purely honorary
titles, are always stopped.
§ 22. There exists no law or body of authoritative rules of action
between hostile armies, except that branch of the law of nature and
nations, which is called the law and usages of war on land.
All municipal law of the ground on which the armies stand, or of the
countries to which they belong, is silent and of no effect between
armies in the field.
Slavery, complicating and confounding the ideas of property, (that is of
a thing,) and of personality, (that is of humanity,) exists according to
municipal or local law only. The law of nature and nations, has never
acknowledged it. The jurists of all countries agree. The Digest of the
Roman Law enacts the early dictum of the pagan jurist, that “so far as
the law of nature is concerned, all men are equal”; and fugitives
escaping from a country, in which they were slaves, villains, or serfs,
into another country, have, for centuries past, been held free, and
acknowledged free, by judicial decisions of European countries, even
though the municipal law of the country, in which the slave had taken
refuge, acknowledged slavery within its own dominions.
§ 23. Therefore, if the United States wage war with a government which
admits of slavery, and a fugitive from the opposite belligerent offers
himself for protection to the American army, and is free from the
suspicion of mischievous intentions, he must be received and protected,
be he a fugitive slave or not; and once received and protected by the
United States, under the shield of the Law of Nations, he can never be
returned into slavery or given up to the enemy.
Returning such a person would amount to enslaving a free person, and
neither the United States nor any officer under their authority has the
right to enslave any human being. No Christian state has claimed, for
centuries past the right of enslaving those who are free.
§ 24. All wanton violence committed against persons in the invaded
country, all destruction of property not commanded by the authorized
officer, all robbery, all pillage, or sacking, even after taking a place
by main force, all rape, wounding, maiming, or killing of such
inhabitants, are prohibited under the penalty of death, or such other
severe punishment as may seem adequate for the gravity of the offence.
A soldier, private or officer, in the act of committing such violence,
and disobeying a superior, ordering to abstain from it, may be lawfully
killed on the spot by such superior.
§ 25. There is no prize money on land. All booty belongs to the United
States, and not to any individual.
§ 26. Neither officers nor privates are allowed to make use of their
position or power in the hostile country for transactions of private
gain, not even for commercial transactions otherwise legitimate.
Offences to the contrary committed by commissioned officers will be
punished with the loss of the gain, with cashiering, and such additional
punishment as the nature of the offence may require, not exceeding
years imprisonment.
§ 27. Crimes punishable by all penal codes, such as arson, murder,
maiming, assaults, highway robbery, theft, burglary, fraud, forgery, and
rape, if committed by an American soldier in a hostile country, against
its inhabitants, are not only punishable as at home, but in all cases in
which death is not inflicted, the severer punishment shall be preferred,
because the criminal has, as far as in him lay, prostituted the power
conferred on a man of arms, and prostrated the dignity of the United
States.