Instructions For The Gov't. Of Armies Of The
United States In The Field (The Lieber Articles)
Martial Law - Military jurisdiction - Military necessity -
A place, district, or country occupied by an enemy stands, in
consequence of the occupation, under the Martial Law of the invading
or occupying 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.
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.
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, or
The commander of the forces may proclaim that the administration of
all civil and penal law shall continue either wholly or in part, as
in times of peace, unless otherwise ordered by the military
Martial Law is simply military authority exercised in accordance
with the laws and usages of war. Military oppression is not Martial
Law: it is the abuse of the power which that law confers. As Martial
Law is executed by military force, it is incumbent upon those who
administer it 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.
Martial Law should be less stringent in places and countries fully
occupied and fairly conquered. Much greater severity may be
exercised in places or regions where actual hostilities exist, or
are expected and must be prepared for. Its most complete sway is
allowed - even in the commander's own country - when face to face
with the enemy, because of the absolute necessities of the case, and
of the paramount duty to defend the country against invasion.
To save the country is paramount to all other considerations.
All civil and penal law shall continue 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
sanction, or, if deemed necessary, the participation of the occupier
Martial Law extends to property, and to 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: their property and
business 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, so
far as regards the displaced government; but the conquering or
occupying power usually recognizes them as temporarily accredited to
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.
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.
Whenever feasible, Martial Law is carried out in cases of individual
offenders by Military Courts; but sentences of death shall be
executed 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.
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
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.
Military necessity, as understood by modern civilized nations,
consists in the necessity of those measures which are indispensable
for securing the ends of the war, and which are lawful according to
the modern law and usages of war.
Military necessity admits of all direct destruction of life or limb
of armed enemies, and of other persons 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 of property, and obstruction of the ways
and channels of traffic, travel, or communication, and of all
withholding of sustenance or means of life from the enemy; of the
appropriation of whatever an enemy's country affords necessary for
the subsistence 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.
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 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 to peace
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.
When a commander of a besieged place expels the noncombatants, 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 the surrender.
Commanders, whenever admissible, inform the enemy of their intention
to bombard a place, so that the noncombatants, 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.
Public war is a state of armed hostility between sovereign nations
or governments. It is 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,
suffer, advance and retrograde together, in peace and in war.
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.
Nevertheless, as civilization has advanced during the last
centuries, so has likewise steadily advanced, especially in war on
land, the distinction between the private individual belonging to a
hostile country and the hostile country 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.
Private citizens are no longer murdered, enslaved, or carried off to
distant parts, and the inoffensive individual is as little disturbed
in his private relations as the commander of the hostile troops can
afford to grant in the overruling demands of a vigorous war.
The almost universal rule in remote times was, and continues to be
with barbarous armies, that the private individual of the hostile
country is destined to suffer every privation of liberty and
protection, and every disruption of family ties. Protection was, and
still is with uncivilized people, the exception.
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.
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 everyone 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.
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
Retaliation will, therefore, never be resorted to as a measure of
mere revenge, but only as a means of protective retribution, and
moreover, cautiously and unavoidably; that is to say, retaliation
shall only be resorted to after careful inquiry into the real
occurrence, and the character of the misdeeds that may demand
Unjust or inconsiderate retaliation removes the belligerents farther
and farther from the mitigating rules of regular war, and by rapid
steps leads them nearer to the internecine wars of savages.
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.
Ever since the formation and coexistence 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.
Public and private property of the enemy - Protection of persons,
and especially of women, of religion, the arts and sciences -
Punishment of crimes against the inhabitants of hostile countries.
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 of that of its government all the
revenues of real property belonging to the hostile government or
nation. The title to such real property remains in abeyance during
military occupation, and until the conquest is made complete.
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 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.
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.
As a general rule, the property belonging to churches, to hospitals,
or other establishments of an exclusively charitable 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 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.
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 whilst besieged or bombarded.
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.
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
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,
lands, boats or ships, and churches, for temporary and military uses
Private property, unless forfeited by crimes or by offenses of the
owner, 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 officer will cause
receipts to be given, which may serve the spoliated owner to obtain
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.
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 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." 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.
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 postliminy, no
belligerent lien or claim of service.
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
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.
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
Neither officers nor soldiers are allowed to make use of their
position or power in the hostile country for private gain, not even
for 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.
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.
Deserters - Prisoners of war - Hostages - Booty on the battle-field.
Deserters from the American Army, having entered the service of the
enemy, suffer death if they fall again into the hands of the United
States, whether by capture, or being delivered up to the American
Army; and if a deserter from the enemy, having taken service in the
Army of the United States, is captured by the enemy, and punished by
them with death or otherwise, it is not a breach against the law and
usages of war, requiring redress or retaliation.
A prisoner of war is a public enemy armed or attached to the hostile
army for active 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.
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.
The monarch and members of the hostile reigning family, male or
female, the chief, and chief officers of the hostile government, its
diplomatic agents, and all persons who are of particular and
singular use and benefit to the hostile army or its government, are,
if captured on belligerent ground, and if unprovided with a safe
conduct granted by the captor's government, prisoners of war.
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.
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. If,
however, the people of a country, or any portion of the same,
already occupied by an army, rise against it, they are violators of
the laws of war, and are not entitled to their protection.
The enemy's chaplains, officers of the medical staff, apothecaries,
hospital nurses and 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.
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.
If a hostage is accepted, he is treated like a prisoner of war,
according to rank and condition, as circumstances may admit.
A prisoner of war is subject to no punishment for being a public
enemy, nor is any revenge wreaked upon him by the intentional
infliction of any suffering, or disgrace, by cruel imprisonment,
want of food, by mutilation, death, or any other barbarity.
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 not 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.
The law of nations knows of no distinction of color, and if an enemy
of the United States should enslave and sell any captured persons of
their army, it would be a case for the severest retaliation, if not
redressed upon complaint.
The United States cannot retaliate by enslavement; therefore death
must be the retaliation for this crime against the law of nations.
A prisoner of war remains answerable for his crimes committed
against the captor's army or people, committed before he was
captured, and for which he has not been punished by his own
All prisoners of war are liable to the infliction of retaliatory
It is against the usage of modern war to resolve, in hatred and
revenge, to give no quarter. No body of troops has the right to
declare that it will not give, and therefore will not expect,
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.
Troops that give no quarter have no right to kill enemies already
disabled on the ground, or prisoners captured by other troops.
All troops of the enemy known or discovered to give no quarter in
general, or to any portion of the army, receive none.
Troops who fight in the uniform of their enemies, without any plain,
striking, and uniform mark of distinction of their own, can expect
If American troops capture a train containing uniforms of the enemy,
and the commander considers it advisable to distribute them for use
among his men, some striking mark or sign must be adopted to
distinguish the American soldier from the enemy.
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.
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 belongs to a corps which gives no quarter.
The law of nations allows every sovereign government to make war
upon another sovereign state, and, therefore, admits of no rules or
laws different from those of regular warfare, regarding the
treatment of prisoners of war, although they may belong to the army
of a government which the captor may consider as a wanton and unjust
Modern wars are not internecine wars, in which the killing of the
enemy is the object. The destruction of the enemy in modern war,
and, indeed, modern war itself, are means to obtain that object of
the belligerent which lies beyond the war.
Unnecessary or revengeful destruction of life is not lawful.
Outposts, sentinels, or pickets are not to be fired upon, except to
drive them in, or when a positive order, special or general, has
been issued to that effect.
The use of poison in any manner, be it to poison wells, or food, or
arms, is wholly excluded from modern warfare. He that uses it puts
himself out of the pale of the law and usages of war.
Whoever intentionally inflicts additional wounds on an enemy already
wholly disabled, 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.
Money and other valuables on the person of a prisoner, such as
watches or jewelry, as well as extra clothing, are regarded by the
American Army as the private property of the prisoner, and the
appropriation of such valuables or money is considered dishonorable,
and is prohibited. 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 have been placed in the private
luggage of the prisoners.
All officers, when captured, must surrender their side arms to the
captor. They may 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
A prisoner of war, being a public enemy, is the prisoner of the
government, and not of the captor. No ransom can be paid by a
prisoner of war to his individual captor or to any officer in
command. The government alone releases captives, according to rules
prescribed by itself.
Prisoners of war are subject to confinement or imprisonment such as
may be deemed 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.
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.
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.
If, however, a conspiracy is discovered, the purpose of which is a
united or general escape, the conspirators may be rigorously
punished, even with death; and capital punishment may also be
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.
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.
Every captured wounded enemy shall be medically treated, according
to the ability of the medical staff.
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
Partisans - Armed enemies not belonging to the hostile army - Scouts
- Armed prowlers - War-rebels
Partisans are soldiers armed and wearing the uniform of their army,
but belonging to a corps which acts detached from the main 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.
Men, or squads of men, who commit hostilities, whether by fighting,
or inroads for destruction or plunder, or by raids of any kind,
without commission, without being part and portion of the organized
hostile army, and without sharing continuously in the war, but who
do so with intermitting returns to their homes and avocations, or
with the occasional assumption of the semblance of peaceful
pursuits, divesting themselves of the character or appearance of
soldiers - such men, or squads of men, are not public enemies, and,
therefore, if captured, are not entitled to the privileges of
prisoners of war, but shall be treated summarily as highway robbers
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.
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.
War-rebels are persons within an occupied territory who rise in arms
against the occupying or conquering army, or against the authorities
established by the same. If captured, they may suffer death, whether
they rise singly, in small or large bands, and whether called upon
to do so by their own, but expelled, government or not. They are not
prisoners of war; nor are they if discovered and secured before
their conspiracy has matured to an actual rising or armed violence.
Safe-conduct - Spies - War-traitors - Captured messengers - Abuse of
the flag of truce
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
Exceptions to this rule, whether by safe-conduct, or permission to
trade on a small or large scale, or by exchanging mails, or by
travel from one territory into the other, can take place only
according to agreement approved by the government, or by the highest
Contraventions of this rule are highly punishable.
Ambassadors, and all other diplomatic agents of neutral powers,
accredited to the enemy, may receive safe-conducts through the
territories occupied by the belligerents, unless there are military
reasons to the contrary, and unless they may reach the place of
their destination conveniently by another route. It implies no
international affront if the safe-conduct is declined. Such passes
are usually given by the supreme authority of the State, and not by
A spy is a person who secretly, in disguise or under false pretense,
seeks information with the intention of communicating it to the
The spy is punishable with death by hanging by the neck, whether or
not he succeed in obtaining the information or in conveying it to
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 shall suffer death.
A traitor under the law of war, or a war-traitor, is a person in a
place or district under Martial Law who, unauthorized by the
military commander, gives information of any kind to the enemy, or
holds intercourse with him.
The war-traitor is always severely punished. If his offense consists
in betraying to the enemy anything concerning the condition, safety,
operations, or plans of the troops holding or occupying the place or
district, his punishment is death.
If the citizen or subject of a country or place invaded or conquered
gives information to his own government, from which he is separated
by the hostile army, or to the army of his government, he is a
war-traitor, and death is the penalty of his offense.
All armies in the field stand in need of guides, and impress them if
they cannot obtain them otherwise.
No person having been forced by the enemy to serve as guide is
punishable for having done so.
If a citizen of a hostile and invaded district voluntarily serves as
a guide to the enemy, or offers to do so, he is deemed a
war-traitor, and shall suffer death.
A citizen serving voluntarily as a guide against his own country
commits treason, and will be dealt with according to the law of his
Guides, when it is clearly proved that they have misled
intentionally, may be put to death.
An unauthorized or secret communication with the enemy is considered
treasonable by the law of war.
Foreign residents in an invaded or occupied territory, or foreign
visitors in the same, can claim no immunity from this law. They may
communicate with foreign parts, or with the inhabitants of the
hostile country, so far as the military authority permits, but no
further. Instant expulsion from the occupied territory would be the
very least punishment for the infraction of this rule.
A messenger carrying written dispatches or verbal messages from one
portion of the army, or from a besieged place, to another portion of
the same army, or its government, if armed, and in the uniform of
his army, and if captured, while doing so, in the territory occupied
by the enemy, is treated by the captor as a prisoner of war. If not
in uniform, nor a soldier, the circumstances connected with his
capture must determine the disposition that shall be made of him.
A messenger or agent who attempts to steal through the territory
occupied by the enemy, to further, in any manner, the interests of
the enemy, if captured, is not entitled to the privileges of the
prisoner of war, and may be dealt with according to the
circumstances of the case.
While deception in war is admitted as a just and necessary means of
hostility, and is consistent with honorable warfare, the common law
of war allows even capital punishment for clandestine or treacherous
attempts to injure an enemy, because they are so dangerous, and it
is difficult to guard against them.
The law of war, like the criminal law regarding other offenses,
makes no difference on account of the difference of sexes,
concerning the spy, the war-traitor, or the war-rebel.
Spies, war-traitors, and war-rebels are not exchanged according to
the common law of war. The exchange of such persons would require a
special cartel, authorized by the government, or, at a great
distance from it, by the chief commander of the army in the field.
A successful spy or war-traitor, safely returned to his own army,
and afterwards captured as an enemy, is not subject to punishment
for his acts as a spy or war-traitor, but he may be held in closer
custody as a person individually dangerous.
Exchange of prisoners - Flags of truce - Flags of protection
Exchanges of prisoners take place - 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.
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
government, or of the commander of the army in the field.
A prisoner of war is in honor bound truly to state to the captor his
rank; and he is not to assume a lower rank than belongs to him, in
order to cause a more advantageous exchange, nor a higher rank, for
the purpose of obtaining better treatment.
Offenses to the contrary have been justly punished by the commanders
of released prisoners, and may be good cause for refusing to release
The surplus number of prisoners of war remaining after an exchange
has taken place is sometimes released either for the payment of a
stipulated sum of money, or, in urgent cases, of provision,
clothing, or other necessaries.
Such arrangement, however, requires the sanction of the highest
The exchange of prisoners of war is an act of convenience to both
belligerents. If no general cartel has been concluded, it cannot be
demanded by either of them. No belligerent is obliged to exchange
prisoners of war.
A cartel is voidable as soon as either party has violated it.
No exchange of prisoners shall be made except after complete
capture, and after an accurate account of them, and a list of the
captured officers, has been taken.
The bearer of a flag of truce cannot insist upon being admitted. He
must always be admitted with great caution. Unnecessary frequency is
carefully to be avoided.
If the bearer of a flag of truce offer himself during an engagement,
he can be admitted as a very rare exception only. It is no breach of
good faith to retain such flag of truce, if admitted during the
engagement. Firing is not required to cease on the appearance of a
flag of truce in battle.
If the bearer of a flag of truce, presenting himself during an
engagement, is killed or wounded, it furnishes no ground of
If it be discovered, and fairly proved, that a flag of truce has
been abused for surreptitiously obtaining military knowledge, the
bearer of the flag thus abusing his sacred character is deemed a
So sacred is the character of a flag of truce, and so necessary is
its sacredness, that while its abuse is an especially heinous
offense, great caution is requisite, on the other hand, in
convicting the bearer of a flag of truce as a spy.
It is customary to designate by certain flags (usually yellow) the
hospitals in places which are shelled, so that the besieging enemy
may avoid firing on them. The same has been done in battles, when
hospitals are situated within the field of the engagement.
Honorable belligerents often request that the hospitals within the
territory of the enemy may be designated, so that they may be
spared. An honorable belligerent allows himself to be guided by
flags or signals of protection as much as the contingencies and the
necessities of the fight will permit.
It is justly considered an act of bad faith, of infamy or
fiendishness, to deceive the enemy by flags of protection. Such act
of bad faith may be good cause for refusing to respect such flags.
The besieging belligerent has sometimes requested the besieged to
designate the buildings containing collections of works of art,
scientific museums, astronomical observatories, or precious
libraries, so that their destruction may be avoided as much as
Prisoners of war may be released from captivity by exchange, and,
under certain circumstances, also by parole.
The term Parole designates the pledge of individual good faith and
honor to do, or to omit doing, certain acts after he who gives his
parole shall have been dismissed, wholly or partially, from the
power of the captor.
The pledge of the parole is always an individual, but not a private
The parole applies chiefly to prisoners of war whom the captor
allows to return to their country, or to live in greater freedom
within the captor's country or territory, on conditions stated in
Release of prisoners of war by exchange is the general rule; release
by parole is the exception.
Breaking the parole is punished with death when the person breaking
the parole is captured again.
Accurate lists, therefore, of the paroled persons must be kept by
When paroles are given and received there must be an exchange of two
written documents, in which the name and rank of the paroled
individuals are accurately and truthfully stated.
Commissioned officers only are allowed to give their parole, and
they can give it only with the permission of their superior, as long
as a superior in rank is within reach.
No noncommissioned officer or private can give his parole except
through an officer. Individual paroles not given through an officer
are not only void, but subject the individuals giving them to the
punishment of death as deserters. The only admissible exception is
where individuals, properly separated from their commands, have
suffered long confinement without the possibility of being paroled
through an officer.
No paroling on the battlefield; no paroling of entire bodies of
troops after a battle; and no dismissal of large numbers of
prisoners, with a general declaration that they are paroled, is
permitted, or of any value.
In capitulations for the surrender of strong places or fortified
camps the commanding officer, in cases of urgent necessity, may
agree that the troops under his command shall not fight again during
the war, unless exchanged.
The usual pledge given in the parole is not to serve during the
existing war, unless exchanged.
This pledge refers only to the active service in the field, against
the paroling belligerent or his allies actively engaged in the same
war. These cases of breaking the parole are patent acts, and can be
visited with the punishment of death; but the pledge does not refer
to internal service, such as recruiting or drilling the recruits,
fortifying places not besieged, quelling civil commotions, fighting
against belligerents unconnected with the paroling belligerents, or
to civil or diplomatic service for which the paroled officer may be
If the government does not approve of the parole, the paroled
officer must return into captivity, and should the enemy refuse to
receive him, he is free of his parole.
A belligerent government may declare, by a general order, whether it
will allow paroling, and on what conditions it will allow it. Such
order is communicated to the enemy.
No prisoner of war can be forced by the hostile government to parole
himself, and no government is obliged to parole prisoners of war, or
to parole all captured officers, if it paroles any. As the pledging
of the parole is an individual act, so is paroling, on the other
hand, an act of choice on the part of the belligerent.
The commander of an occupying army may require of the civil officers
of the enemy, and of its citizens, any pledge he may consider
necessary for the safety or security of his army, and upon their
failure to give it he may arrest, confine, or detain them.
Armistice - Capitulation
An armistice is the cessation of active hostilities for a period
agreed between belligerents. It must be agreed upon in writing, and
duly ratified by the highest authorities of the contending parties.
If an armistice be declared, without conditions, it extends no
further than to require a total cessation of hostilities along the
front of both belligerents.
If conditions be agreed upon, they should be clearly expressed, and
must be rigidly adhered to by both parties. If either party violates
any express condition, the armistice may be declared null and void
by the other.
An armistice may be general, and valid for all points and lines of
the belligerents, or special, that is, referring to certain troops
or certain localities only.
An armistice may be concluded for a definite time; or for an
indefinite time, during which either belligerent may resume
hostilities on giving the notice agreed upon to the other.
The motives which induce the one or the other belligerent to
conclude an armistice, whether it be expected to be preliminary to a
treaty of peace, or to prepare during the armistice for a more
vigorous prosecution of the war, does in no way affect the character
of the armistice itself.
An armistice is binding upon the belligerents 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 its
Commanding officers have the right to conclude armistices binding on
the district over which their command extends, but such armistice is
subject to the ratification of the superior authority, and ceases so
soon as it is made known to the enemy that the armistice is not
ratified, even if a certain time for the elapsing between giving
notice of cessation and the resumption of hostilities should have
been stipulated for.
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 military operations to the extent agreed upon by the
When an armistice is concluded between a fortified place and the
army besieging it, it is agreed by all the authorities on this
subject that the besieger must cease all extension, perfection, or
advance of his attacking works as much so as from attacks by main
But as there is a difference of opinion among martial jurists,
whether the besieged have the right to repair breaches or to erect
new works of defense within the place during an armistice, this
point should be determined by express agreement between the parties.
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.
When an armistice is clearly broken by one of the parties, the other
party is released from all obligation to observe it.
Prisoners taken in the act of breaking an armistice must be treated
as prisoners of war, the officer alone being responsible who gives
the order for such a violation of an armistice. The highest
authority of the belligerent aggrieved may demand redress for the
infraction of an armistice.
Belligerents sometimes conclude an armistice while their
plenipotentiaries are met to discuss the conditions of a treaty of
peace; but plenipotentiaries may meet without a preliminary
armistice; in the latter case, the war is carried on without any
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, who may be slain without trial by any
captor, any more than the modern law of peace allows such
intentional outlawry; on the contrary, it abhors such outrage. The
sternest retaliation should follow the murder committed in
consequence of such proclamation, made by whatever authority.
Civilized nations look with horror upon offers of rewards for the
assassination of enemies as relapses into barbarism.
Insurrection - Civil War - Rebellion
Insurrection is the rising of people in arms against their
government, or a portion of it, or against one or more of its laws,
or against an officer or officers of the government. It may be
confined to mere armed resistance, or it may have greater ends in
Civil war is war between two or more portions of a country or state,
each contending for the mastery of the whole, and each claiming to
be the legitimate government. The term is also sometimes applied to
war of rebellion, when the rebellious provinces or portions of the
state are contiguous to those containing the seat of government.
The term rebellion is applied to an insurrection of large extent,
and is usually a war between the legitimate government of a country
and portions of provinces of the same who seek to throw off their
allegiance to it and set up a government of their own.
When humanity induces the adoption of the rules of regular war
toward rebels, whether the adoption is partial or entire, it does in
no way whatever imply a partial or complete acknowledgement of their
government, if they have set up one, or of them, as an independent
and sovereign power. Neutrals have no right to make the adoption of
the rules of war by the assailed government toward rebels the ground
of their own acknowledgment of the revolted people as an independent
Treating captured rebels as prisoners of war, exchanging them,
concluding of cartels, capitulations, or other warlike agreements
with them; addressing officers of a rebel army by the rank they may
have in the same; accepting flags of truce; or, on the other hand,
proclaiming Martial Law in their territory, or levying war-taxes or
forced loans, or doing any other act sanctioned or demanded by the
law and usages of public war between sovereign belligerents, neither
proves nor establishes an acknowledgment of the rebellious people,
or of the government which they may have erected, as a public or
sovereign power. Nor does the adoption of the rules of war toward
rebels imply an engagement with them extending beyond the limits of
these rules. It is victory in the field that ends the strife and
settles the future relations between the contending parties.
Treating, in the field, the rebellious enemy according to the law
and usages of war has never prevented the legitimate government from
trying the leaders of the rebellion or chief rebels for high
treason, and from treating them accordingly, unless they are
included in a general amnesty.
All enemies in regular war are divided into two general classes -
that is to say, into combatants and noncombatants, or unarmed
citizens of the hostile government.
The military commander of the legitimate government, in a war of
rebellion, distinguishes between the loyal citizen in the revolted
portion of the country and the disloyal citizen. The disloyal
citizens may further be classified into those citizens known to
sympathize with the rebellion without positively aiding it, and
those who, without taking up arms, give positive aid and comfort to
the rebellious enemy without being bodily forced thereto.
Common justice and plain expediency require that the military
commander protect the manifestly loyal citizens, in revolted
territories, against the hardships of the war as much as the common
misfortune of all war admits.
The commander will throw the burden of the war, as much as lies
within his power, on the disloyal citizens, of the revolted portion
or province, subjecting them to a stricter police than the
noncombatant enemies have to suffer in regular war; and if he deems
it appropriate, or if his government demands of him that every
citizen shall, by an oath of allegiance, or by some other manifest
act, declare his fidelity to the legitimate government, he may
expel, transfer, imprison, or fine the revolted citizens who refuse
to pledge themselves anew as citizens obedient to the law and loyal
to the government.
Whether it is expedient to do so, and whether reliance can be placed
upon such oaths, the commander or his government have the right to
Armed or unarmed resistance by citizens of the United States against
the lawful movements of their troops is levying war against the
United States, and is therefore treason.