Military Government and Martial Law
Military Government and Martial Law
Military Government and Martial Law
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Military Government
AND
Martial" Law.
BY.
WILLIAM E. BIRKHIMER.
LL.B..
,,,
MaJor. Oueral Staff. U. 8. Army.
THIRD EDITION,
UVISUD.
eaa-.
IlllOClrdiDI: to Aot of
in the )'lW 1892, by
WILUAII E. BDlIDIDQB,
In the office of the UbrariaD of Coo.-., M WuhinatoD.
&~
)'lW
19lK, by
All
Conare-. at WuhincWn
richta .-rved.
TO
1'RB M1UoiORY 011 MY IIR1SHD,
as SACJlIlfICSD
APP8CTIONAnx.y INSCRm8D.
460800
vi
PUPAClC.
ever, it be understood that this cannot be done; if the principle be estabished that the commander who, under any circumstances whatsoever,
assumes to enforce superior military power over the people and territory of his own country does so under ultimate legal responsibility for
. . acts, military rule is deprived of its terrors, and the law-abidingfttizen sees in it nothing except the firm application for his benefit of
the powerful military hand when civil institutions have ceased either
'wholly or at least effectively to perfonn their appropriate functions.
Nor as to this does it signi fy whether' temporary military supremacY
results from efforts to repel invasion or to! suppress insurrection. The
rule of liability is the same in both cases.
It is evident, therefore, that there must be one term to express the
fact of slipreme military domination over. the community abroad, and
another for the same thing at home.
, This' was clearly pointed out by Attorney-General Cushing, in 1857,
'iii ail opinion conspicuous for the legal acumen which characterizes the
profesSional writings of that distinguished jurist. But at that time the
true nature and limits of military jurisdiction had not in this country
reCeived suffiCiently close judicial examination to admit of demonstration
upon recognized principles of municipal and, international law. This it
remained for-the Chief-Justice of the United States to do in the dissenting views of the minority of the justices in Ex parte Milligan, after the
experiehces of the Civil War had directed attention to, and thrown a
'flood of llght upon, the subject. The truth of this observation is wholly
independent of the conflicting opinions, regarding the correct territorial
limits of martial \;iw, expressed by the justices in that celebrated case.
'The analysis of the Chief-Justice is masterly; and leaves nothing to
those wbo follow hIm except to fill in the details of the plan, the
ground-work of which he so ably laid. Tm has been attempted in the
-following pages. How imperfect soever the execution, it may result in
-fuller mvestigation into, and exposition of, the principles involved, and
.thus prove of benefit to the military profeIBOIl...-to serve which is the
writer's only ambition.
I
WASHINGTON BAlUlACKS,
N O'lJembe,.. I, IS92.
D. C.,
viii
In Colorado, by proclamations in 19030004. the Governor declared
that a state of affairs bordering on insurrection and rebellion existed in
one county; in another, that practically the same condition prevailed;
while in a third they had risen to a state of real insurrection and rebellion. The organized militia was put in the field, in some cases to assist,
in others to act independently, if need be, of the civil authorities-at
discretion of the military commanders.
In each of the cases just mentioned, wherein State authorities enforced martial law, appeal was made by the opposition to the judiciary,
but unavailingly. The fact is that the judiciary, as so clearly shown by
the Supreme Court of Pennsylvania, in the decision above referred to,
understands that it does not suffice alone that courts be open and 'civil
officers pursuing their functions, if in spite of this a condition of lawlessness prevails that renders such ordinary agencies powerless in fact
properly to perform their functions and give society that security to life
and property that government was intended to secure. This being so,
the next step is inevitable-when ordinary instrumentalities do not suffice, the extraordinary, the military, must be called in, because the community will not long surrender to its lawless element.
Nor did the condition of affairs at Chicago in IB94 vary in principle
from those just mentioned. The Governor of Illinois at the time would
not caU for the national troops, although inter-state commerce and the
carrying of United States mails through that city were effectually
blocked by lawless violence, leading to loss of life and destruction of
property. The President ordered United States troops to the scene.
The special United States attorney urged that martial law formally be
declared; and although this was not done, the omission to do so was
not because apparently of a belief that this would be illegal, nor did it
change the state of facts, which was one of the military dominating all
other authorities. The Supreme Court of the United States sustained
these energetic measures in the amplest manner.
It is not an agreeable fact to reflect upon, yet it is true that the instances are not diminishing in frequency wherein the military, either
national or State, are being put in requisition to preserve order when the
civil authorities fail in this their first duty. The people of the United
States rightly pride themselves on being law-abiding, yet official records
show that more than half the Presidents have issued proclamations
warning the people against the commission of illegal acts, and the number of distinct proclamations has exceeded the number of Presidents.
This does not complete the view. In this there must be comprehended
numerous instances of State authorities, legislative or executive, treading
the same path. In some cases here referred to, martial law has been
PREFACl.
ix
inaugurated in distinct terms, while in all cases this has been the partial
effect, more or less complete, depending upon the heed given by the
lawless element to official warnings and thus modifying the necessity
for the establishment of martial law in distinct terms.
Martial law was established in the rebellious or disaffected districts
of Cape Colony, South Africa, in 1899, and at various times was modified as to territorial extent down to the final triumph of British arms in
the Boer War. As it was instituted over districts in rebellion or contiguous to territory of an enemy with which Great Britain was conducting war, there was reason in adopting, as was done, the laws of war as
the basis for enforcing martial law in this instance. It was simply
placing all those who had to be fought, whether they were the enemy in
line of battle, or the less easily distinguishable enemy-subjects in rebellion-as nearly as possible on the same footing. Yet they were not,
in the theory of British law, placed precisely in the same category in
two important respects. First, it was recognized that while certain acts
of burghers-the open enemy-might be breaches of the laws of war,
yet if rebel subjects did the same, they would be offenses against ordinary law, such as treason, or murder; second, that those who enforced
martial law could be held civilly accountable subsequently by alleged
rebel or other subjects of martial-law districts, hence it was necessary
to secure an indemnity act to shield them; whereas such agents were
answerable for this conduct to the open enemy only according to the
laws of war. From this it will be observed that there was nothing in
the circumstances of inaugurating martial law in South Africa and
scarcely anything in the incidents attending its enforcement there that
was at all similar to martial law viewed as a domestic fact, and as just
il~trated in the case of Idaho, Pennsylvania, and Colorado. In truth
the rule styled martial law in South Africa was like that denominated
military government in this work, with the single exception that an act
of indemnity was necessary in certain situations. The case did not
arise of a community being paralyzed in its administrative parts by the
lawless acts of vicious elements of society, so that the military is called
in to save the State from destruction internally. When th~ condition
of affairs occurs under the British flag, it is likely that the martial law
invoked will be less signalized in execution by appealing to the laws of
war than to those repressive measures that are an extension of the police powers of government, the agent for giving effect to which has become the military.
This prefatory note cannot better b~ concluded than by the following letter:
PREFACE.
"WAR DEPARTMENT.
"OnICJt OF THP; ]UDGE-ADVOCATIt GltNl!;RAL,
"WASHINGTON, February 24, 1904"My dear Major Birkhimtr,-I am very glad to learn that you have
it in mind to bring out a new edition of your 'Military Government and
Martial Law,' in which th~ results of the very considerable experience
which we have had since 1898 in the field of military occupation will be
allowed due representation.
"The original work is the most complete treatise on the subject in
the English language, and embodies the views which prevail in AngloSaxon countries on the subject of martial law and military occupation.
I have had constant occasion to refer to it in connection with matters
which have been referred to this office for opinion, and found it especially
useful when the character of the operations underta:-en in the Philippine
Islands, with a view to suppress the insurrection against the ~uthority
of the United States, were undergoing investigation.
.. I hope the revision will appear in the near future, so that the work
can be used in the instruction uf officers of the Army in cunnection with
the government of occupied territory and the restoration of order in communities in which military force has been employed with a view to secur~
the execution of)he laws; and, I remain,
" Faithfully yours,
GEO. B. DAVIS,
, -/
"Judge-Adwcate General."
This, the first revision of the work, now i~ given to the proiession and
the world in the hope that it may be deemed to deserve and may continue
to receive the favor heretoCore accorded it, not only in our OWU, but in
foreign s.:rvices and in the le:.;,LI proCession.
SAN FRANCISCO, CALIFORNIA,
July I, 1904.
When the manuscript for this revised edition had been placed in the
hands oC the publisher, the author was taken suddenly amI violl.'ntly ill
and was confined fur several months to the hospital. In this dilemma.
Major Daniel H. Boughton, U. S. Army, LL.B., head oC th~ Law Depart~
went of the Infantry and Cavalry &hool and Staff College, obligingly undertook t~e onerous task of revising and correcting the pruof-sheets and
preparing the index. The great merit of this labor, as executed, belongs
exclusively to that painstaking and capable officer, to whom the author
lleU"by testifies his appreciation and returns thanks Cor the invaluahle
services thus rendered.
CONTENTS.
INTRODUCTION.
MILITARY Go~Jl.Ny:gNT.
I. Military jurisdiction divided into two branches.-2. Sphere of
military government.-3. Limit of martial law.-4. Importance of the
distinction.-5. Temporary allegiance.-6. Efforts to ameliorate hardships of war.-7. Instmctions for United States Armies in the Field.-8.
Comparison of international codes with the Instmctions.~. Continuance
same subject.-IO. Decisions SIIpreme Court of United States on war
powers.-II. Practical tendency to make war more hurnane.-I2. Duty
of the militarily governed to respond favorably to this sentiment.
MARTIAL LAW.
I. Scope and object military government.-2. Right to declare war.3 Ways in which war originates.-4. Parties in public war.-5. Necessity
President meeting war emergency.-6. War may exist without declaration
by Congress.-7. Powers expressed carry others necessarily implied.8. Complete war powers.~. Law of nations re:ognized by Constitution
-8
xi
xii
CONTE:-'T!'\.
CHAPTER II.
RIGHT TO ESTABLISH MILITARY GOVSRNMENT.
'
CHAPTER III.
TSMPORARY ALLEGIANCS OF INHABITANTS.
CONTENTS.
xiii
./ ,,,
"
xiv
CONTENTS.
113. The law of war prevails ill occupied territory.-l 14. Case foreign
army permitted on friendly soil.-l 15. Three classes to be dealt with.-l 16.
Laws affecting persons and property of conquered.-II7. As to these,
conqueror should lean towards mercy.-l18. Instructions for American
armies on this point.-II9. Courts, such as conquerur elects.-120. Judicial system organized in New MexiL'O.-12I. Gen. Scott's judicial system,
Mexico.-I22. Same; its advantag~s.-123. Local judiciary, within territory of rebels treated as belligerents, regulated by conqueror.-u4.
So.me.-I25. Gen. McClellan's orders, Peninsular Campaign.-u6. War
Judiciary, Memphis, Tenn.-I 27. Authority of military commanders,
not well understood.-I28. Same subject, as illustrated in Memphis.129. Criminal court established.-I30. Same suhject.-I3I. War courts
with civil jurilldil'tion.-I32. War courts at New Orleans.-I33. Principles
for Inilitary government city. -134. Military commission, criIninal jurisdiction.-135. Provost court, general jurisdiction.-136. Two important
points decided.-I37. The provost court, a war court.-I38.. Further
"indication President's war power.--139. 'War courts further extended
in jllrisdiction.-I40. Provisional court, plenary powers, court of record
appointed.-14I. Plenary power, appoint war courts, judicially settled.
-142. I.aws of occupation applicable to soldiers and citizens conquering
State.-I43. Soldiers and camp-followers subject to laws of war.-I44.
Provisions Articles of War.-I45. Articles of War applicable regardless
theutre operations.-I46. Scope uf this code.-I47. Applicable unless
under statutory restrictions, to all crimes and misdeeds of military and
camp-followers.-148. Ex-members army not generally triable under
Articles of War.-I49. Tribunals of invaded country no jurisdiction
OVf>r members invading annY.-I50. Prulonged occupation does not
affect rule.-15I. Case of Elphinstone 'V. Bedreechullrl.-152. Principle
further illustrated, Coleman 'V. T~nnessee.-I53. Comprehensive effect
preceding decisions.-154. Case of soldier, allel'(ed niurderer, in Cuba
-I5S. Laws applicable to citizens, civilians, membf'rs of conquering
CONTRNl'S.
xy
State.-ls6. Certain of the Articles of War set out.-lS7. legal constmCltion of these Articles of War.-158. Trials under 63d Article of War.-:'
159. Civilians, citizens conquering State subject statutory law and laws
of war.-I60. When civilians triable under 63d Article of War.--161.
Trial crmles under common law.-162. Same subject.-163 Laws applicahle to neutrals under military occupation.-164. Principles, ilIU:ltrated.-165. Same subje<>t.-166. Trial neutrals, criminal offences.-167.
Transitory actiuns accruing to neutrals.-168. Efficacy judgments supreme
judicial trinunal deposed State, after military occupation established.
CHAPTER X.
RIGH'l'S RUGARDING PRIVATE PROPERTY.
169. Amelioration former severe ml~ regardin~ en~my property.170. Right to seize enemy property a perfect one.-171. Question who has
I ight to appropriate enemy property very important.-L72. Four differeut
ways appropriating private property.-173. Confiscation a formal legal
process, as distinguished from sulllmary apprupriation.-174. Views, elementary writers, as to right of confiscation.-175. Property right~, in
vanquished State. -176. Right to confiscate judicially determined.-I77.
Right to confiscate not based on crime, but on relation of property to enemy.
-nfl.. Same rule when rebels are treated as belligerents.- , 79. Source Congressional power on subject.-ISo. Nu acts confiscation passed by Congress during foreign wars. -181. Those inaugurated during the Civil War.
-182. This course rendered necessary, ohstinacy uf war.-183. Principle
further extende<!.-1!!4. Confiscation only upon judicial rledsion.-185.
Confisrntion laws not interfere with laws uf war, but military commanders
may not confisrnte.-186. Illustratiun fr0m decision Supreme Court.-187.
Commanders untrammeled unner laws of war, t'xcept by express legislation.
-188. Mistaken policy hampt>rs commanders at a distance.-189. Military government full control lands and immovable private property of
enemy, even to fruits, rt'nts, profits, but measures generally cease in legal
effect with ocL'Upation.-I9Q. Conspicuuus instance of contrary ruling.191. Import of ruling first cited'-'92. Case from Franco-Gernlan War.193. Case Dogupan Railroad, Luzon, Philippine Isbnds.-194. Supplies
for subsisting army taken as uf right.--195. Measures without political
significance survive the military occupation.-196. BOOty.-197. Pmperty taken 1?ecumes property of State.-198. Instructions fOT taking.- 199.
Arguments of Hague Conference, appropriating property.-200. Distinc
tive rights, propt>rty captured un land and on ~a.-201. Taking private
property as coercive measures.-202. Instmctil)ns for Armies in the Field
regarding these principles.-203. Exceptions to rule private property
may not be taken.-204. PunL'lhmt'nt of community for acts of 'One of its
xvi
CONTENTS.
CONTENTS.
xvii
xviii
CONTENTS.
CONTItNTS.
CHAPTER XV.
MILITAllY GovERNKItNT--TRIBUNALS.
Ii
CONTENTS.
LAw
LAw.
357. Definition of martial law.-3s8. Domestic and ordinarily unwritten.-359. War power, or extensive police power, depending on circumstances.-J60. Erroneously confounded with military law.-J6I. Origin martial law in" English jurisprudence.-,J62. Same subject.-363. Originally meant the discipline of the camp.-364. Same subject.-365. Supplements short-comings of the civil law.-J66. Can now apply to soldiers
and civilians alike.-367. Martial-law practice under Charles 1.-368.
Scope of martial law.-J69. Implied powers of Executive.-370. Experiences martial law, Southern ConfederaCY.-37I. Rights of few give way
to preservation of the manY.-372. Not necess'ary, martial-law theater
that of active" ar.-373. Legal when civil authorities fail in functions.374- Those who enforce martial law answerable before the courts.-375.
Must be limitted to time and place of necessitY.-376. Resort to martial
law a common practice.-377. View of it as belligerent right.-378. Military in first instance judges of necessitY.-379. Invoked, suppress local
disturbance.-380. As belligerent right, based on laws of war alone.381. Principle of civic responsibility the characteristic of domestic martial law.-J82. Parliamentary martial law in Ireland.-J83. The great
desideratum, reconcile necessities of government with security to personal rights.-J84. Instances during times of peace in United States.385. Principles relating to the instituting and execution of martial law
maintained in this treatise.
CHAPTER XVIII.
MARTIAL LAW UNDER ENGLISH ]URISPRUDEN($.
CONTENTS.
xxi
law statute.-390. Import of these principles.-391. British colonial experie-nres.-392. Prosl'C.."'Utions at home for martial-law acts in colonies.393. Question, vital importanre, if offences aftet- active disorder ceased, to
be tried by martiallaw courts.-394. This experience contrasted with
some in the United States.-395. Character of British martial-law tribunals.-396. Martial law not affect those subject Mutiny Act.-397. Viewed
as branch of the royal prerogative.-398. Distinction, martial and military law.-399. In theory not part of British jurisprurlenL'e.-4JlO. In
practice has become so from necessitY.-401. Notwithstanding Petition uf Right, great exigencies during peace have rendered martial law
necessary, and therefore legal.-4o~. A condition of war may exist without actual war; then martial law finds its place.--403. Instances from
English history.-404- If unkuown to English jurisprudence, known to
English experience.-405.~dle- fears, military domination.-406. True
test of justificatiun, failure civil administmtion.-407. Same subject.408. Principles announcerl fur enforcement.-409. These principles examineet.-.po. Same subject.-4rl. Samt' sllbject.-41~. Same subject.-413.
Same subject.-4I4. Who judges of necessitry-415. Remarks on civil
responsibility military uffiC't'r.-416. Principle same case civil official.
-417. Inequality situations military and civil officers mure apparent
than rt'al.-418. Courts-martial rules advisahle for martiallaw courts.419. Method enforcing mactial law variE's with circumstances.
CHAPTER XIX.
THEORY OF MARTIAL LAW IN lOHE V"SITgn STATES.
4~O. Diverse experiences, caused diverse views martial law, American
and British practice.-.pl. Atturney-General's definition martial law.422. His view, function officer executin~.-42.3. Remarks on these views.
-424. View that abolishes all law, substituting will military commander.
-425. Confonnding here military governmE'nt as part of law of war with
martial law as domestic fact.-426. Error considering martial law as
setting up irresponsible officials.-42i. View of U. S. Snpreme Court,
martial 10\\ sometimes justifiable, therefor~ then legal.-42S. Court decided martial law nut legal when civil administration unobstructerl.-429.
State judge of necessity martial law within own limits, case defiance own
authoritY.-430. Martial law legally estahlisherl, acts to give it effect
justifiable under legal responsibility for ahuse power.-431. This the
common-law rule, official responsibilitY.-43~. Fears of early patriots of
abuse of military power not confirmed by century'sexperience.-433.
Deep-seated respect of United States military officers for civil institutions
and authoritY.-434. Necessity martial law New Orleans, 1814-15.-435.
xxii
CONTENTS.
xx.
SUPPLSYSNTS
CoMMON LAW.
459. The necessity that justifies martial law is overwhelming, the result of a failure of civil adIniuistration to perform its functions; it escbews
expediencY.-460. Wben inaugurated, the military authurity is supreme.
-461. New York city mobs in 1863.-462. The justifying necessity
varies with circumstances.-463. Necessity may exist for instituting
martial law, even tbough civil courts may be able to sit, if total conditions
are such as to defeat ends of government.-464. Same subject.-465. Disinclination officials do duty may cause necessity as much as adverse
physical force.-466. Invasion, and, in some instances, threatened invasion, may justifY.-467. Same subject.-46S. Necessity directing all
resources country repelling invasion may warrant martial law.-469
Necessity must be instant, overwheIIning.-470. Same subject.-47I.
CONTltNTS.
xxiii
Principles upon which those who execute martial law to be the judges.~
472. Terror and civil disorganization accompanying invasions may just,fY.-473. Secret machinations, inertness on part civil officials, may justifY.-474- Illustrations.-47S. Same subject.-476. Continued at New Orleans after news peace received~477. Proximity of enemy caused it to
be instituted and maintained.-4i'8. The one overwhelming necessity was
repelling invasion by every means.-479. To repel the invader at the
gates overshadowed all other considerations.-480. Self-defence right
of courts, legislatures, communities, States, nations, as well as of indi~
viduals.-4~h. Under this principle martial law is justified.-482. Doubt 7
ful loyalty large part people Louisiana justified martial law.-483. Common law not suited case rebellion.-484- Riot Act an attempt to meet
this difficulty.-48s. Difficulty uniting law-abiding elements renders
often resort to military a necessity.-486. Instances of this, Baltimore,
1861.-487. Courts of justice sat unimpeded this case.-488. All-pervading undercurrent disloyalty called for military rule.-4B9. Same subject.-<\90. Opinion Chief Justice 'raney, Merryman case, based on fallac>,
of assumed loyalty, whereas disloyalty poisoned all sources when<;e
flowed local official action.-491. Wisdom of President Lincoln's course.
-492. Necessary in Kentucky as a belligerent measure.-493. Same subject.-494- Same subject.-49S. Wide-spread active disaffection may paralyze courts as much as exertion of physical force.-496. This was condition affairs in Kentucky, 1864-\
CHAPTER XXII.
FEDERAL AUTHORITY '1'0 INSTITUTE MARTIAL LAW.
497. Martial law may be invoked by either Federal or State government.-498. Early theories, employing military, domestic disturbance,
United States.-499. When local authorities fail, President authorized by
law to use mii,itary power.-Soo. Same subject.-soI. In Federal matters,
President independent State authorities.-S02. Subordinates may be en~
trusted to enforce President's authority.-S03' Commanding officer may
extend his authority over environment camp, time of war.-so4. Supreme
Court U. S. sustains State exercising martial-law powers.-Sos. It met
the peril of armed resistance to government.-s06. Deceptive nature illustrations, early English history-so7. Important Supreme Court statement, martial law constituted a state of war.-soS. In such circumstances
military not subordinate to civil authorities.-S09. Responsibility, arrests
out of martial-law district.-SIO. Such arrests might be legal, certain
conditions.-SII. Martial law during reconstruction period following
Civil War.-SI2. Suspension privilege writ habeas corpus in New Mexico.
-SI3. Privilege of habeas corpws in Colorado.-SI4. Assumption of mili-
xxiv
CONTBNTS.
tary control in Arizona.-515. Martiatlaw, State of Missouri.-SI6. Confirmed by the President.-517. Fallacy of doctrine that martiatlaw call
not be exercised if no physical obstacle exists to sitting of courts.518. Same subject.-519. Martiatlaw continued as military necessity, 0.
belligerent measure, during continuance of war.-5:1O. Divisions that
grew up among friends of the Union in Missouri.-52I. Principles enforcing martial law precisely detined.-522. Civil authorities and institutions treated with greatest respect.-523. Generous policy, misunderstood, led to more drastic measures.-524. Martial law may he
justified even if no physical obstacle to courts sitting.-525. Martial
law, Baltimore, 1863, on principle of bel1igerencY.-526. Close relation
power suspend privileges writ habeas corpus and to order martiallaw.527. Martial-law measures taken, case evasion of draft.-528. Right of
arrest, trial, punishment, carried to extreme.-529. Measures of President
subject to Congressional discussion.-530. Proclamation President Lincoln,
September 15, 1863.-531. War Department orders issued defining course
of affairs.-532. The period one of necessary arbitrary acts.-533. Bill in
nature indemnity act passed by Congress.-534. Thus secured officers a
protection against persecutions in perforumnce of military dutY.--535.
Courts inclined construe law strictlY.-S36. Easily carry commendable
speculations too far.-537. President revokes martial-law measures, end
Civil War.-538. Military control, District Columbia, during Civil War.539. Same subject.
CHAPTER XXIII.
CONGRESSIONAL MARTIAL LAW.
5>. View of Federal martial law includes power to Congress to establish.-541. Congress well-nigh omnipotent under theory United States Government.-542. Reconstruction Acts created what in fact, if not in express
terms, was martial laW.-543. The military administration created by
the so-called Reconstruction Acts was that of martial law in rigid form.
544. Reluctance administration to acknowledge true import of acts led
to more drastic military measures, thus emphasi1:ing martial-law ROwers
Congress.-545. Same subject.-546. Latent spirit rebellion throughout
Southern States caused these military measures.-547. Legislation even
pushed to questioIlBble CongressioIlBI limits, impugning authority President.-541l. Authority general of the Army greatly augmented.-549.
Reconstruction Acts created a military despotism.-550. The military
paid every proper regard to the civil administration. - 551. This deference to civil authority part of the United States regular Army system.552. A great measure relief for military when predominant in community
to have assistance loyal civil authorities.-55.:1. Same subject.
CONTENTS.
xxv
CHAPTER XXIV.
MARTIAL LAW IN STATItS AND TB1UUT01l.l&;.
CHAPTER XXV.
ADIllNISTRAnON OF MARTIAL LAW.
CONTENTS.
CHAPTER XXVI.
MARnAL-LAW TRIBUNALS.
CONTBN~.
xxviJ
CHAPTER XXVII,
RasPONSJBILITY OF CoMKANDBR&-MARTIAL LAW.
CHAPTER XXVIII.
RBSPONSJBILITY OF SUBORDINATBS.
xxviii
CONTNTS.
or
INDtMNITY.
677. Bills of indemnity, after martial law, customary in English jurisprudence.-678- Under legislative martial law, such bills only indemnify
for acts in cases 'of customary practices under martial law.-679. Colonial bills of indemnity.--680. If martial law legally instituted, and conduct proper under' it, bill of indemnity adds nothing to security; only
statute of repose.-6k Scope under this view bills of indemnity.-682.
Policy involved in bills of indemnity.-683. Statutes nature bills of indemnity.after Civil War.-684- Same subject.-68S. Same subject.-686.
Same subject.-687. Same subject.---$. Exercise military authority over
civil community, as experience has shown, in emergencies, not cause of
alarm.---689. This duty not attractive to the military.--6g0. Absolutely
necessary that military be sustained in reasonable use of authority.
..-------~------~---~-.
---
-~-
CONTENTS.
xxix
APPENDICES.
I.
General Scott's Martial-law Order, published in City of Mexico.
11.
Instructions for United States Armies in the Field, and Supplement
(G. 0., 100, A. G. 0., 1863, and G. 0., NO.3. A. G. 0., 1892); together
with corresponding Articles of the Hague Conference Code of 1899.
III.
The Brussels Project of an International Declaration concerning the
laws and customs of war.
IV.
Proposed Code of the Laws of War adopted at session of Institut de
Droit International, Oxford, September, 1880.
V.
State of Siege in France.
VI.
Instructions for the Government of the Armies of the United States
in Time of War.
p._ 595.'
2.
IlM.
21
22
INTRODUCTION.
23
4 Crancb,
211;
24
IN'l'RODUCTI0N.
ereignty in all its plenitude, and that they must obey its mandates. This is purely chimerica.l. They are under no obligations to recognize the authority of a State which can
only command their services without the power to protect
them if they obey. To do this is but to invite severest measures of repression on the part of the military governmental
authorities.
It is not proposed in this treatise to sanction doctrines so
fraught with melancholy results to those who are so unfortunately situated as to be for the time subjected to the enemy's
arms.
6. During the last half-eentury there has been a great revolution in weapons of war. This has not been confined to
the arms of the soldier, but extends to the armament of works,
the use of mines, torpedoes, and other death-dealing inventions. While attention has heen directed to this branch of
the miliary art, another and agreeabre spectacle has been presented in efforts of humane and learned men, soldiers and
others, to reduce the laws of war to a concise code, that they
may be better and more generally understood; at the same
time inculcating and nurturing a sentiment favorable to reducing sufferings engendered by war as much as possible.
Those who have been conspicuous in these labors have not
belonged to a class who indulge Utopian dreams of general
and perpetual peace. They recognize the fact that, until human nature changes, wars will be. Their efforts have been
directed to the creation of an universal public opinion favorabl.e to minimizing the evils which attend the prosecution of
hostilities.
The main instrumentality through which it has been attempted thus to advance the cause of humanity has been
conventions of an international character in whose deliberations.delegates from a large number of States have taken part.
The declaration of Paris of 1856 may be taken to have given
the first impulse toward such concerted action. Then came
the Geneva Conventions of 1864 and 1868, respec!ive1y, in
26.
Appendix II.
INTRODUCTION.
27.
Appendix II.
28
INTROUUCTlON ..
29
30
knowledge that they may stretch its provisions when convenient, or of what efficacy it will prove, remains to be seeJl.
Russia soon had a self-sought o~rtunity to put her alleged
generous views into practice. but nothing was clearly discernible in her conduct of the war of 1877-78 which would
have raised the suspicion that the Czar had proposed the
Brussels Conference and applauded its results. Such, when
interests of States intervene, is the difference sometimes observable between promise and fulfillment. It is an interesting
circumstance that while during the last balf-century successive
Czars have stood forth initiators of international measures
looking to either the obviation of wars or au amelioration of
their effects, no other first-class power bas been engaged during
that period in so many wars of great magnitude as Russia.
10. In addition to the "Instructions" mentioned, and the
general laws of war, United States officers have for their guidance many decisions of the Supreme Court upon the meaning
and scope of those laws. The latter are regarded in all civilized countries as of great weight. Those which arose out of
the incidents of the Civil War are particularly valuable, as
they make clear much which formerly was obscure regarding
belligerent rights and the multifarious duties of officers enforcing military government. To United States officers they
are not only highly instructive, but they are of binding efficacy as well. Hence in this treatise they are frequently referred to and given prominence in keeping with their importance, intrinsic worth, and authoritative character. It were
not possible, perhaps, in the decisions of any other tribunals
to find the subject of the true relation of all within the sphere
of xnilitary occupation treated in so copious a manner, from
the elevated standpoint of judicial fairness, as in the published
opinions of the United Rtates Supreme Court. They are of
special importance in an international view, and in an American work should receive every consideration.
I I. He who attentively considers the past and present of
the laws of war, whether prompted by curiosity, or, if a soldier,
INTRODUCTION.
31
Appeudix 11.
32
INTRODUCTION.
33
34
MILITARY GOVEJUiKBNT
INTIlODUO'l'IOlf
35
36
martial law. 1 In Part II. of this work en effort has been made
to elucidate this subject.
23. Upon the second question authorities are divided.
One class denies that Congress lawfully may establish martial
law; the other asserts that such authority constitutionally
may be exercised. So far as the national authority is concerned, the first class maintains that the enforcement of martial
law and its inauguration under any circumstances is a matter
exclusively within the province of the executive branch of
the government; the second, while conceding this authority
to the executive, asserts that it may be matter of legislative
cognizance as well. In this, as with many other matters of
governmental polity, there is room for and there exists honest
differences of opinion. In this work, notwithstanding the
great respect felt for those who entertain the former, the latter
view is mainhined.
t- It is conceded by all that the common law is intolerant of
arbitrary power. Yet it holds every act justifiable which is
essential to the preservation of property and life. This is
true where individu'.lls are concerned. So much the more so is
it when the country is menaced with invasion, or an attempt is
made forcibly to overthrow the government or set that municipal A.uthority at defiance on which the wdfare of all depends.
Force may then repd force, and everyth;ng be done which
is necessary to render the use of force effectual. There is no
new principle involved in this. There is an analogous use of
force exercised--on a smaller scale,. to be sure-ev~y day
when under what is known as the "police power' property
is destroyed to stop the spreJ.d of a conflagr:.tion or to stamp
out the germs of cont2gious disease, leaving the OWDf'J' remediless as against those who interposed in behalf of the public
welr..re. It may be requisite by a further and still greater
exercise of martial-lew authority to prevent insurrection by
I.
Appendix V.
INTRODUCTION.
37
the lUTes~ of suspected individu 9 ls and holding them in custody until the enemy is repelled or the rebellion suppressed,
or they molY be brought to trial before a military tribunal, if
the case will not admit of delay. This power can not, however,
be used in en irresponsible manner. No official is so high or
citizen so low that he is beyond the power or protection of
the hw. The exercise of this authority must not be taken:
against the law, but under it. On the fece of things acts like
those mentioned are trespasses which can only be justified by
proving that the .circumstances were such as to render it the
duty of the officer to disregard the rights of individuals in
view of the public safety. And he takes his measures, as
before remarked, .under a sense of possible accountability
before the restored civil courts.
Thus far both those who deny and those who assert the
right of Congress to institute martiel law are agreed. The
question at this point arises, "Who has a right to authorize
the exercise of this extraordinary authority?" And here they
separate.
The views of the former can not, perhaps, briefly be better
expressed than by Mr. Hare in a learned treatise on constitutionallaw-a work of greatest worth, and from which much that
has just been said regarding the nature of martial law has substantially been taken.! "Military action," says this author,
"should be prompt, meeting the danger and overcoming it on
the instant. It can not, therefore, afford to await on the deliberations of a legislative assembly. On the other hand, an
act of Congress authorizing the exercise of martial law in a
State or district gives the military commander a larger charter
than the end in view requires or is consistent with freedom.
Armed with the sanction of positive law, he need no longer
consider whether his acts are justified by necessity. He may
abuse the undefint:dpower intrusted to his hands, and destroy
life, liberty, and property without the shadow of an excuse,
I.
38
an idle report or a rumor that will not bear the light. ".
The martial-law power is essentially executive in its nature.
It is not expressly given to Congress; its exercise by the latte!"
would seem to be in derogation of those rights of life, liberty,
and property secured to the citizen by the 4th, 5th, and 6th
amendments to the Constitution, and therefore beyond the
range of implied congressional powers. 2
In remarking upon these objections to the exercise of
martial-law powers by Congress the last can best be considered first. In making it the commentator appears to have
overlooked the decision of the Supreme Court of the United
States, I I Wallace, 268. It was there held that the amendments in question interposed no obstacle .to the exercise by
CongreSs of the war powers of the government. Section 6 of
the act of July 17, 1862, rendered confiscable the property of
any person who, owning property in any loyal district, should
give aid and comfort to the rebellion. The person might be
living on his property in a state of peace. The amendments
relied on by Mr. Hare afforded him no protection; such
was the decision of the court; the act was declared to be
COnst1tUtiOnal.
It is difficult to perceive how Congress can have such authority, as the Supreme Court here decided it had, and yet not
have constitutional power to institute martial law. The latter
could not place the property of citizens more at the mercy of
the government than the act of July 17, 1862, did in the cases
specified. The act of March 3, 1863,8 placed the liberty of
the subject at the will of the President. This also has been
treated as constitutional by the Supreme Court. f If the
martial-law power of Congress needed vindication, it was given
in these acts, in the acts amendatory to the latter,6 and in the
OIl
I.
964.
5. May
II,
1866; Man:h
2.
1867.
INTB6DUO'l"IO)l'
39
40
ties, TPbel against the laws and Constitution, the right of the
Government 'to use force can no longer be questioned. 1 During the Civil War the Presid~t first assum~d martial-law powers. Suspending the privilege of the writ of habeas corpus
was one of these. The legislature gradually came in this work
to his assistance. The Constitution gives Congress power to
pass all laws necessary and proper for carrying into execution
all powers vested in the President as head of the Executive
Department. The means and instrumentalities referred to as
within the authority of Congress are not enumerated or defined. They are left to the discretion of the legislature, subject
only to the restriction that they be not expressly prohibited,
and are necessary and proper for carrying into execution the
powers mentioned. 2 And as to this, "It is not to be denied, JJ
said the Supreme Court of the United States, "that acts may
be adapted to the exercise of lawful power, and appropriate
to it, in seasons of exigency, which would be inappropriate at
other times. JJ 3
Speaking of the act of March 3, 1863, Mr. Hare observes
that it "virtually established martial law by arming the President and the officers under his command with a dictatorial
power to deprive any man whom they regarded as inimical of
liberty and property." Without acceding to this proposition
in its entirety, we ml.'y recall the terms of praise in which the
Supreme Court referred to the provisions of the law thus inveighed against. In Beard 'V. Burts the defendant had shielded
himself behind the 4th section of the act and the act amendatory thereto of May II, 1866; and in the course of its opinion,
reversing the decision of the Supreme Court of Tennessee, the
Supreme Court of the United States rem:trks: "The orders of
which the acts speak are military orders, and a large portion
of such orders, as is well known, are merely permissive in form.
They necessarily leave much to the discretion of those to
whom they are addressed. We can not doubt that Congress
1.
Art.
Black, 635.
iNTRODUCTION.
had such orders in view, and that its action was intended to
protect against civil suits those who do acts either commanded
or authori2led by them." 1 In Mitchell 11. Clarke the action of
a department commander in enforcing martial law on loyal
soil indirectly came up before the Supreme Federal Tribunal
for consideration. 2 The defendant strove to shelter himself,
partially at all events, behind the same provision of law as
the defendant in the other case just cited; the case went off
upon another point, but the court took occasion to refer to
the acts of Congress in question in terms of highest commendation. So in Bean 11. Beckwith, where the same section came
under review, the object of the law was clearly stated, with
no suggestion against the constitutionality; while in Beckwith
11. Bean, which was a continuation of the former case, the
court remarked, when reversing the action of the Vermont
court, that the jury could not well ignore the important
fact that the arrest occurred at a period in the country's history when the intensest public anxiety pervaded all classes
for the fate of the Union."
It is impossible to misunderstand the intention and effect
of the various laws that have just been mentioned and others of
similar import affecting the liberty and property of civilians
passed during and just subsequent to the Civil War and the
language of the Supreme Court when referring to them. They
place on firmest ground the legality of the exercise of martiallaw power by Congress in cases of great emergency. It has
been said that they are squarely in the teeth of the supposed
opiillon of the Supreme Court in the celebrated case Ex parle
Milligan. 8 That point is not here conceded; but if it were so,
the decisions referred to are of a subsequent date and may be
supposed to modify the majority views, in Ex parle Milligan,
as to the exercise of martial-law power.
II
I. 5 Otto, p. 438.
2. 110 U. S., 633. 3. 4 Wallace, 21; Hare. Consti
tutional Law, Vol. 2, p. 971. 4. Hare, Constitutional Law, Vol. 2. p. 970
tI s"q.
42
INTllODUOTIOlf.
43
was held that this was in pursuance of the duty imposed on the
general government to guarantee to every State a republican
form of government. 1 But in this discussion it matters not
what the object was. The question here ;s not what objects
Congress constitutionally may have in view by its legislation.
We r~gard here only the mdlQS it makes use of to accomplish
those objects. Martial law is never, under constitutional" goverwnents, its own end; like war. of which it may be a forerunner or sequel, martial law is d. mean, an instrument for
the attainment of some ulterior purpose essential to civil
order. Regarded in this light, we have here properly to inquire not what the Reconstruction Acts were incended to accomplish, but the means adopted through these acts for the
attainment of the end in view.
Doing this, we see the military raised 9bove the civil power,
CUld so securely that the President even could not depose it.
ThE' sword took precedence of Rll else. Courts and legislatures
waited the soldier's decree. If they acted, it was at his bidding
or with his permission. This was martial law. We are not
imert'sted in words. If "martial law" sounds too harsh, call
this rule of the sword something else. That, however, will not
change the neture of the fact. If not so termed, it still remains
martial law.
24. The Constitution gives to Congress power to declare
war, grant letters of nwrque and reprisal, and to make rules
concerning captures on land and water; to raise and support
armies. Congress is authorized to make all laws ne..-essary
and proper to carry into effect the granted powers. The
measures to be taken in carrying on war and to suppress insurrection ar~ not enumerated. Tht decision of all uch
questions rest~ wbu]]y with those to whom the substantial
powers involved aTe ronfided by the Constitution. Moreover,
it is Ii well-recognized principle not only that it is not indispen5'1ble that ~he existence of any power chimt>d can be found
in the words of the Constitution, but it need not be clearly
t.
7 WallaCt', 708.
44
Wallace, 506;
J:Z
Wallace, 534.
2. J:Z
Wallace, 544.
PART I.
MILITARY GOVERNMENT.
'CHAPTER 1.
POWER TO DECLARB WAR.
I. Military Government is that which is established by
a commander over occupied enemy territory. To entitle it
to recognition it is necessary that the authority of the State
to which the territory permanently belongs should have ceased
there to be exercised.
The establishment of military government is considered
to be, primarily, for the advll,ntage of the invader; but this is
more in appearance than reality, arising from the circumstance thllt the occupying d.l"my alone has the power at the
time to maintain government of any kind; in fact, such government is of most advantage to the inhabitants of the territory over which it is instttuted. Without it they would be
left a prey ,to the uncertain demands of a dominant military.
which, without perhaps intending it ond through mere, want
of system; might oppress them; with it, so long as they conform to the will of their new rulers, they generally are left
unmolested in ordinary dOI'lJestic ,a~d business relations, and
largely in municipal affairs.
, 2, The right of making war, of which military government
~ R.ii.in~nt; as well as1.tliat of, ~uthorizrng refa.Jiaqo~s,' re-
.1: ,.
'~'
. -. ,
-,
4~
46
prisals, and other forcible means of settling international disputes, belongs to the supreme power in the State. 1
Of the absolute international rights of Sta;:es, one of the
most essential and important, and that which lies at the foundation of all the rest, is the right of self-preservation. It is
not only a right with respect to other States, but a duty with
respect to its own members, and the most solemn and important which the State owes to them. This right necessarily
involves all other incidental rights, which are essential as
means to give effect to the pI incipal end. 2 One of these, and
that without which all others combined would be powerless
to preserve the social state, is the right to declare and CIUTY
on war.
3. War may originate in various ways. 8 A foreign ft~t
may attack ours in a remote sea. Several engagements occurred between our own ships and ..hose of Ftl.'nce in the latter
part of the eighteenth c.~tury; and but for the- fact that other
projects then occupied the ambitious Bonap'ute, this would
doubtless have resulted in war. A foreign power may send
troops into our t~itory with hostile intent, without any formal
declaration of war. The war of 1812 was formally declered
by act of Congress, as was that agdinst Spain in 1898. Civil
war may break out as either a servile war, like the Sepoy revolt
of 1857-8, or a rebellion, as of the Colonies in 1775, and the
rebellion of 1861, without any formal declaration.. In 1846
it was annonnced to the country by act of Congress that, by
the act of the Republic of Mexico, war existed between that
government and the United States.1 But this was a m~
formality. The gct of Congress neither authorized nor legalized the war. That had been done long before by the cootending armies on the Rio Grande. Besides, many belligerent
acts are resorted to 80metimps which do not and ~ y are
expt'cted to lead to war. 6
1. Woolsey, Sec. 125. 2. Dana's Wheaton. p. 89, Sec. 61. 3. See
Cobbett, p. 110 It stJq., for illustrations. 4. Whiting, War Powers, 10th
ed., 38. 5. Act May 13, 1846.
6. See "Steps Short of War," Cobbett.
p. 95 II seq.
Prbe Cues,
Black, 666.
2.
Sec. 3. Art.
2.
CoastituUon U. S.
48
Black, 668..
I
I
4'
* * *
* * *
I.
2.
Fed
so
are
Hluntseh1i,
I,
Sec. 40.
CHAPTER II.
RIGHT TO EsTABLISH MILITARY GoVltRNMltNT.
10. The Constitution has placed no limit upon the war
powers of the government, but they are regulated and limited
by the laws of war. One of these powers is the right to institute milib:ry governments. 1
lI. First-over conquered foreign territory.
The erection of such governments over the persons and
territory of a public enemy is an act of war; is in fact the
aercise of hostilities without the use of unnecessary force.
It derives its 'authority from the customs of war, and not the
municipal law. 2 It is a mode of retaining a conquest, of
exercising a supervision over an unfriendly population, and
of subjecting malcontent non-eombatants to the will of a
superior force, so as to prevent them from engaging in hostilities, or inciting insurrections or breaches of the peace, or from
giving aid and comfort to the enemy. Large numbers of persons may thus be held morelly and physically in subjection
to a comparatively small military force. Contributions may
be levied, property be appropriated, commerce may be restrained or forbidden, for the same reasons which would
justify the repression of the open hostilities of the inhabitants
by force of arms. 3
12. Those who institute or enforce military government
should have a care to base their exercise of authority upon
the certain ground of belligerent right or its necessary incidents. Military commanders, under these circumstances, should
avoid the meshes of either constitudonal or civil law; first,
because such complications are unnecessary; second, because
1.
2. Maine, p '79
3. Whiting,
54
RIO~~
55
Canter,
56
'V.
Porter,
57
and that their condition shall remain as eligible as is compatible with the objects of the conquest. 1
When in the House of Commons, May, 1851, it was said
that martial law had been established by the British commander in 1814 in the south of France, military government,
and not martial law, in the sense we use it, was meant. And
so of the remarks of the Duke of Wellington, the commander
referred to, in the House of Lords, April I, 185 I, in the debate
on the Ceylon rebellion, when he said: .. I contend that m'lrtial
law is neither more nor less than the will of the general who
commands the army. In fact, martiall'lw means no law at all.
Therefore, the general who declares it, and commands that it
be carried into execution, is bound to lay down distinctly the
rules and regulations and limits according to which his will is
to be carried out."
Plainly what the Duke of Wellington here referred 1:0 was
not martiallqw as a domestic fact, and as the term is used in
this treatise; he was speaking of his conduct in foreign territory, and the methods there pursued to establish and enforce
the rule of the conqueror.
18. In Thorington v. Smith the Supreme Court of the
United States, adverting to the fact that military governments were classed by publicists as de facto, observed that they
more properly might be denominated governmenl:s of paramount force. Their characteristics were said to be (I) that
their existence is meintaint'd by active military power, and
(2) that while they exist they muse necessarily be obeyed in
civil matters by privl:'te citizens who, by ~cts of obedience,
rendered in submission to such force, do not become responsible, es wrong-d~rs, for these acts, though not warranted
by .he laws of the rightful government; that 2ctual governments o( this sort are e5tablished over districts differing greatly
in extent and conditions; and that they are usually .dministered directly by military authority, but they may be adminI.
58
8 Wallace, 9.
2.
Grapeshot, 9 Wallace,
132.
59
J.
5 1 7.
~.
60
2. 17
Wal
61
62
16 Wallace, 4RJ.
63
laws and this system legalIy might remain in force after the
termination of the war and until modified either by the direct
legislation of Congress or by the territorial government established by its authority. 1 We have had the same experiences
in Cuba, Porto Rico, and the Philippines.
I.
Leitensdorfer v. Webh,
20
Howard, 186.
CHAPTER III.
TEMPORARY ALLEGIANCE OF INHABITANTS.
65
Book 1.,49.
5-
66
tionary, changeful periods which usually precede the accomplished fact, governments have been instituted-they have ever
been regarded as worthy the reverence, the homage, and loyal
support of those for whose benefit they were brought into
existence.
29. From the earliest records of established governments
it has been held the first duty of those who received their
protection to support and defend them. Those who rebel
against their autho~ity are regarded as deserving severest
punishment. These are universal principles, based on the
instincts of rational beings and the experience of mankind.
Having established government, having performed that supreme act, mankind have uniformly insisted that, so long as
it performed its proper functions, those subjected to its authority and who enjoy its benefits are bound, if need be. to
support it to the utmost of their ability. Any other principle would sanction revolution, with its attendant misery,
upon the slightest pretext; an experience characteristic, not of
States which have proved to be the blessings, but the curse
of mankind. Considerations like these, based upon human
nature, and the demands of society, have unalterably established the principle th' [ allegiance and prutection are reciprocal duties as between subject and government.
30. In a modified degree these principles are applicable
to military government, and this leads to corresponding modifications of the allegiance of the subject. And first, let it
be observed, that consent of the people freely given, so far
from being the basis on which military government is founded,
the very opposite is true. It is the rule of force imposed on
subjects by paramount military power. That primary element of stability-a confidence grounded in the mutual interests of the people and their rulers self-imposed for the
benefit of all-is here wanting. Yet it is the modern practice
for the government of military occupation to protect the people in their rights of persons and property. When this is not
dont>, it is because the success of military measures renders
67
68
U. S. Reports. p.
d ~eq.
69
the condition that, and so long as, they obey the commands which he
imposes under the guidance of custom." He remarks that recent writers
adopt the view that the acts which are pt-rmitted to a belligerent in occupied territory are merely incidents of hostilities; that the authority which
he exercises is a form of the stress which he puts upon his enemy; that
the rights of the expelled sovereign remain intact; and that the legal
relations of the population toward the invader are unchanged. (International Law, p. 429.)
The learned writer in this connection calls attention to the significant
fact that the larger powers do not accede to this doctrine, though the
smaller States of the Continent unanimously support it. No circumstance
could more effectually impair its binding efficacy. The large, powerful
States, not the insignificant ones, determine the customs of war.
The exception here taken to the theory of temporary allegiance as indicating the relation of the inhabitants to military government, and which
the language of numerous judicial decisions justifies, seems to indicate
only disagreement regarding the correct use of words descriptive of that
relation. The condition is one of fact. The conqueror, not the vanquished, is dictating tern!s. His extreme rights under the customs of
war are very severe. That Mr. Hall acknowledges. Every great war of
even the last quarter' of a century, to say nothing of former ones, has
furnished numberless instances of this. Until recently this enforcement
of extreme rights was the rule. Now, as a condition running pari passu
with the abatement on the part of the conqueror from his extreme rights
under the customs of war, the people of the country impliedly covenant
that they will not pursue a line of conduct or enter into military com
binations prejudicial to the military interest of the conqueror whose
forbearance they accept. Call this implied covenant, prayed for by
the conquered and their intE'rested advocates, "temporary allegiance,"
"mutual engagements," or what not, the name does not change the fact.
As for the proposition that the rights of the deposed sovereign remain
intact over people and territory subjected to military government, it can,
as before pointed out, only work harm to such of them as, through a feeling
of loyalty, may be led to obey his injunctions. The conqueror of course
tredts such pronunciamentos with contempt, and simply punishes the
spirited, perhaps, but misguided people who are rash enough to sacrifice
themselves for a sovereignty which can only issue orders without power
to enforce its mandates, or save harmless those who heed them.
Dr. Bluntschli takes, and correctly, the opposite view from Mr.Hall.
Ste Laws of War, I., Sees. 3c, 31, 89 (2).
CHAPTER IV.
TERRITORIAL EXTENT.
33. Though it is a legitimate use of military power to secure undisturbed the possession of that which has been acquired by arms, yet it is dfficult, by aid of any moderate
number of troops, to gu2..rd and oversee gn extended conquered territory; and it is practically impossible for any army
to hold and occupy all pari:s of it at the same moment. Therefore, if the inhabitants are to be pt=rmitted to remain in their
domidles unmolested, some mode must be adopted of (:ontrolling their movements, and of preventing their committing
clCts of hostility against the dominant power, or of violence
against each other. The disorganizlltion resulting from civil
war requires, more than that following from any other, those
restraints which the dominant military alone can impose. In
countries torn by intestine commotions neighbors become
enemies, all forms of lawless violence 2.re but too apt to be
common, and in the absence of military rule would be unrestrained. Hence, to ensure qaiet within rebellious districts
when reduced into control during a civil war, it becomes all
the more necessary to establish there a rigorous government,
that life and property may be rendered secure and crime be
either prevented or promptly punished. Firm possession of
a conquered province can be held only by establishing a gov'emment which shall control the inhabitants thereof. 1 And
that there exists in the opinion of the Supreme Court of the
United States no distinction as to the rights in this regard
of the conqueror, whether the subjugated territory be foreign
or that of rebels treated as belligerents, clearly appears from
the language in the case of Tyler 'iI. Defrees. "We do not bet. Whiting, 10th
Ed., p. 262,
70
TMRITORJAL EXTEN'T.
71
lieve," said the court in that case, "that the Cortgress of the
United States, to which is confided all the great powers essential
to a perpetual union, the power to make war, to suppress insurrection, to levy taxes, to make rules concerning capturt"S on
land a.nd sea, is deprived of these powers when the ne<:essity
for their exercise is catled out by domestic insurrection and
internal civil war; when States, forgetting their constitutional
obligations, make war against the nation, and mnfederate
together fo'r its destruction." 1
34. The question, What legatly, under the customs of war,
shal1 constitute "military occupation"? was one of the important matters which the conference at Brussels in 1874
tried, but failed to decide.
The conference concluded tha t "a territory is considered
as occupied when it finds itself placed in fact under the authority of the hostile army. The occupation extends only to territory where this authority is established and in condition
to be exercised." The Gerntan view of occupation was that
it did not always manifest itself by exterior signs, like a placl'
blockaded; that, for instance, a town in the conquered dii>"
trict left without troops ought nevertheless to be considered
as occupied, and all risings there should be severely repressed.
The ~ took a different view of the subject-that
government holding, in brief, that, to be militarily UC'Cupied,
a territory should be held firmly in the conqueror's grasp,
and that if he did not keep a military force u[ any particular
point, the people living there were under no obligations to
reOlain quiet, but pro~rly might rise against the occupying
power without incurring the penalties meted out to insurgents.
It is plain that the latter (English) view would favor risings of the people en masse to strike at the occupying power;
a right for which that government strenuously contends. It
is naturally the contention of a power having a comparatively
SOlal1 standing army, and whose policy it is to encourage soJ.
II
II .
"
(
)
t 1"
72
2. See Ap.
TERRITORIAL EXTENT.
73
met
74
v
(
TERRITORIAL EXTENT.
75
2. 12
76
\;
'V.
2. Vol. I, p. 144.
TERRITORIAL EXTENT.
77
I. 8 Wallace, 10.
2. Halleck, Chap. 32, Sec. 3; 9 Howard, 615.
3- Kent, Vol. I. p. 145
78
TERRITORIAL EXTENT.
79
.,
'.
CHAPTER V.
TERRITORY MILITARILY OCCUPIED, EN!tMY TURRITORY.
Peters.
80
542.
2.
81
have had the sanction of usage, this could not be the case under
the Gov~mment of this Union. The latter possesses, it is true,
authority to acquire territory, the Constitution conferring upon
it absolutely the powers of making war and treaties. 1 But the
exercise of the terr~tory-acquiring authority rests with those
departments of tl'e. Government in which these powers are
vested. The Executive, acting alone, can neither add to nor ,I
hke from the territory of the United States. The action of the'
military comIIl8nders, therefore, in New Mexico and Upper
C.ilifomia, in so far as they assumed to Qnnpx those Territories,
permanently to transfer the allegiance of the people from the
Republic of Mexico to the United States and give them representation in the National Congress, was beyond their powers
and void, although done in pursuance of the instructions of the I
Secretary of War.
General Scott understood this matter better.. In his instructions to General Kearney of November 3, 1846, he said
"You will erect and garrison durable defences for holding
the bays of Monterey and San Francisco, together with such
other important points in the same provinces as you may
deem it necessary to occupy. You will not, however, formally
declare the province to be annexed. Permanent incorporation of the territory must depend on the Government of the
United States."
Decisions of the Supreme Feder'll Tribunal set at rest all
doubts on this subject. During the war of 1812, a British ship,
sdiling from the Danish island of Santa Crux, freighted with
certain products of the island, was captured by an American
privateer. The owner of the plantation on which the produce
(sugar] was raised was a Danish official, who withdrew to and
remained in Denmark when the island surrendered to the
British, leaving his estate under the management of an agent.
The vessel and cargo were duly condemned as enemy property.
A claim for the sugar was put in by the Danish owner, but
it was condemned with the rest of the cargo. and the sentence
I.
"
82
83
I. United States
Pont, 3 Peters, 246.
7J.
also Shanks v. Du
V'
84
and be enlarged or diminished as the armies on either sideadvanced or retreated. They remained unchanged. And every place which was out of the limits of the United States, as
previously established by the political authorities of the Government, was still foreign; nor did our laws extend over iLJ
And in Cross 'lJ. Harrison the court observed that although
Upper California was occupied by the military forces in 1846,
and a government erected therein by authority of the President, still it was not a part of the United States, but conquered
territory within which belligerent rights were being exercised;
nor did it become part of the United States until the ratification of the treaty of peace, May 30, 1848.2
53. Districts occupied by rebels treated as belligerents are,
in contemplation of law, foreign. The same principles govern
intercourse therewith during military occupation as though
they belonged to an independent belligerent. They are enemy territory because they are held by a hostile military force.
And in determining wqether belligerent rights shall be conceded to rebels, with all attendant consequences, it has been
decided that whether the President, in fulfilling his duties as
commander-in-chief in suppressing an insurrection, has met
with such armed hostile resistance and a civil war of such
alarming proportions as will compel him to accord to them the
character of belligerents, is a question to be decided by him.
and that the judicial must be governed by the decision and
acts of the political department of the Government to which
this power is entrusted. He must determine what degree of
force the crisis demands. 3 When parties in rebellion occupy
and hold in a hostile manner a portion of the territory of the
country, declare their independence, cast off their allegiance.
organize armies, and commence hostilities against the Government, war exists. The President is bound to recognize the
fact, and meet it without waiting for the action of Congress, to
which is given the constitutional power to declare war. Under
----
I. 9 Howard, 615-16.
Black's Reports, 270.
2. 16 Howard, 191-92.
3. Prize Cases, 2
85
86
1
!
I. 97 U. S., p. 517.
2. Lamar v. Iirowne, 93 U. S., 1C)5. 3. Proclamations, 19 April, 37 April, 10 May, 16 Aug., 1861; 13 May, 35 July,
22 Sept., 1862; I Jan., 1863, 12 Statutes at Large; 2 April, 23 ~ept.,
87
88
sec.
345.
Da~
CHAPTER Vl.
E"FFgCT OF OCCUPAnON ON
LocAl.
ADMINISTRAnON.
57. Important consequences result from the rule that territory under military government is considered foreign. Im- (
ports into and exports therefrom are regulated by the military
authorities acting either alone or in conjunction with the law-,
making power.
58. Merchandise of all kinds imported into Upper California, while that country was occupied by the United States
forces, was subject to a "war tariff" established under the
direction of the President, and which was exacted until official
notification was received by the military governor of the ratification of the treaty of peace. 1
59. In De Lima 'lI. Bidwel12 the Supreme Court of the
United States held that goods imported from Porto Rico after
the cession of the latter, under the treaty with Spain, ratified
April 11, 1899, were not dutiable. It was held that territory
incorporated into the Union could not be held for pur~
poses of control, yet foreign as to customs laws. The dictum
looking in that direction in Fleming 'lI. Page,3 and which was
practically negatived in Cross 'lI. Harrison,. was overruled.
While war lasts, the military authorities regulate the matter
of commercial duties; but when the territory becomes incorporated into that of the Union, Congress elone can do this.
60. The rule which makes, for all commercial purposes,
the citizens or subjects of one belligerent enemies of the government and citizens or subjects of the other, applies equally
to civil and to international wars. But either belligerent may
modify or limit its operation as to persons, property, and ter6r5
3. 9 Howard.
'I
90
91
of the President are held responsible for the conduct and success of military movements. As Congress has power to declare war and raise and support armies, it must have power
to provide for carrying on war with vigor. Having taken
measures to supply the nece'ssary men and materials of all
kinds, Congress does not further act unless in pursuance of
some special policy. The command of the forces and the conduct of campaigns devolves alone upon the President and
military officers. These matters lie wholly outside the sphere
of Congressional action. 1
62y-AS a rule, municipal laws of the territory under military \
...
gov~ment are continued in force by the conqueror so far as
.}-"
can be consistently with effective military control. If any ,~. \ "-~.;
local authority continues, however, it will only be with his
"permission, and with power to do nothing except what he may
authorize. 2
63. The position of the United States military authorities,
in Cuba, before the Spanish authorities abandoned the island
I c...
in 1899, was one of military occupation, pure and simple; vY"
after that event, it was military occupation of a particular
kind-namely, wherein the dominant military power exer
cised authority over the island as trustee for a Cuban nation
not yet in existence, but the creation of which was promised
and which was to have the assistance of the United States in
~'
establishing itself.
I.
During the former period the dominant military power exercised the authority of a conqueror in all his plenitude. During the latter period the United States military authorities \
governed, indeed, wholly by the rights of war, yet at no time \
did they lose sight of the fact that they were acting in the interests of the future Cuban nation. The government might
J'
I.
Attomey-~neral,
92
'_ '_"
93
The importance of this rule will appear upon the slightest reflection. The existence of war and military government does
not do away with the necessity for the administration either
of municipal laws or some substitute for them. The practical application of the rule relieves the commander of the onerous functions of civil government in so far as he may deem
this necessary or advisable; and it tends to secure the h'1ppiness of the governed and consequently their contentment. As
the commander has absolute control, the rule enables him not
only to advance legitimate schemes for the prosecution of the
war, but at the same time disturbs the least possible the business pursuits and social relations of the people. It is based on
principles of common justice and common sense, and in modern times has received almost universal sanction.
66. During the occupation of New York city by the British
army from UJ.6. to the end of the Revolutionary War, the
operation of municipal laws was undisturbed except when it
was found necessary for the military to interfere. Simil9r instances occurred during the occupation of New Orleans and its
environments by the Union forces from May, 1862, until the
end of the Rebellion; of Memphis, Tennessee, from June, 1862,
until the end of war: while, in the appointment of military .
governors in various of the conquered States, and the determining their jurisdiction and authority, the principle was uniformly acted upon of preserving in full vigor the local laws of
the districts so far as this was compatible with the objects and
conduct of the war. A like course was pursued in Cuba, Porto
Rico, and the Philippine Islands.
Our enemy, during the Civil War, acted upon the same
principle. When the Territory of Arizona was occupied by r~' j ,
Confederate forces in August, 1861, their commander issued
a proclamation placing the country under military government.
Executive and judicial departments were organized. but all
municipal laws not inconsistent with the Constitution and,
laws .of the Confederate States were continued in force. I
I.
20.
94
"
'h
\.',
95
oj
'
I
'
'II.
~)(INISTRATION.
97
2. 22
Wallace, 2en.
98
2. Ibid., 276-77.
~MINI8TllATION.
99
2.
Magoon, p. 603.
3-
leo
it' was held that he was subject to extradition. The court remarked that, as between the United States and all foreign
J ations, the former held Cuba as conquered territory; as beI ween the United States and Cuba, the latter was held by
military power in trust for the Cuban people, to be delivered
over on the establishment of a stable government. It was a
military occupation. The military governor organized the
civil government under four departments; afterwards a supreme court was established; a postal code was published;
the jurisdiction of the criminal courts defined. If was, the
court concluded, wholly for the politicf I department of the
Government to decide when our troops should be withdrawn
from Cuba.!
I
Neely
'V.
Henkle,
180
U. S. Reports,
120
CHAPTER
VII.
75. Among the incidents which attach to the establishment of military government is the appointment of the
agents by whom, and a determination of the principles by
which, it is to be administered. It is indispensable that these
matters be wisely determined in order to secure the objects
for which such government is established.
The selection of these agents rests entirely with the government of the occupying army. 1 From necessity they will, in the
first instance, ordinarily be military officers; as, when the territory is first occupied, the officials on the spot, competent from
their training and with the requisite force at hand to render
military government successful, are the commander of the
army and his subordinates. The home government may, from
considerations of policy, adopt a course in selecting agents
when military government is set up over foreign territory differing from that observed when it is established within districts
occupied by rebels treated as belligerents. 2 Again, if it be intended permanently to annex foreign territory so occupied,
every means probable will be made use of to allay the fears and
wiu the confidence of the conquered people by adopting toward
them a line of conduct which they can see is calculated to
guard their rights and liberties, civil and religious, and render
them secure in person and property.
76. In his instructions to General Kearney of June 3, 1846,
Secretary of War Marcy showed the deep solicitation of the
I. Hall, p. 436.
2. The GeTmans, in 1870, at least in Alsace and
Lorraine, appointed officials in every department of the administration
and of every rank. This was a pre-determined policy, looking to the
absorption of those provinces.
101
102
103
Kent,
I,
p.
92
104
Kent,
I,
105
106
~OUTION.
107
,108
109
IIO
tions set forth in the proclamation. This, like the Emancipation Proclamation, was clearly a war measure. In Louisiana
and Arkansas governments were formed accordingly early in
1864, and in Tennessee early in 1865. To the State executives
thus chosen were given the powers theretofore exercised by
the military governors. This was simply a development of
the plan begun by the President two years previously in the
appointment of these latter officials. It possessed this advanced and important additional feature of republican government as contrasted with its predecessor-namely, that the
new governments were organized, the officiPls to carry them
on appointed-apparently, at least-by the people governed,
instead of by (he commander-in-chief of the army. But
the difference was merely apparent and nominal, not real.
Each in fact rested only on the bayonet. Neither could have
existed for a day if the military support of the nation had
been withdrawn; and herein lay the weakness of the President's plan for establishing civil government in districts
which were declared to be in insurrection. 1 In fact, the
governments thus organized were never recognized by Congress, representatives and senators chosen thereunder being
denied seats in the respective houses. They were, however,
apparently recognized by the Supreme Court, but as de facto
governments only, organized by the President in virtue of
his authority as commander-in-chief,2 the court remarking
that the adoption of a constitution during the war, under
military orders, and the election of a governor, did not affect
the military occupation in the judgment of the national
authorities. 3
88. Those were the last governm~nts organized while the
war was flagrant in territory occupied by rebels treated as
bdligerents; and they illustrated the extreme development of
a policy looking to the conciliation of conquered subjects.
I, Twenty Years in Congress, Blaine, Vol.
White, 7 Wallace, 730. 3. Handlin '/I. Wickliff,
2,
12
p. 174. 2. Texas~.
Wallace, 174.
III
112
1. Papers relating to martial law in South Africa, presented to Parliament by command of His Majesty, London, 1903.
CHAPTER VIII.
ALL INHABITANTS ENEMIES; LEVIES EN MASS~.
I,
8-
114
rr
I 1,5
116
I 17
I,
'""
118
2.
:I
1'9
120
2.
12 I
]22
123
2. Customs
124
[25
I2()
I 'J 7
128 .
129
out; when this occurred it was sometimes difficult to distinguish friend from foe.
110. There is no impropriety in 2 State, if it so desires,
relying for its fighting force upon the precarious services of
levies en masse rather than regularly organized armies. I That
such State is thereby a loser is not a raticnal, nor is apt to be
an actual, cause of complaint to its enemy. The adoption of
this pclicy is purely a matter for e3.ch State to determine for
itself. It is true that it is sometimes claimed that the employment of such l~vies is contrary to the laws of war. But if
these assertions be examined into it will be found that those
who maintain this position are actuated by no higher motive
than self-interest. They are those who support large standing
armies, train the entin~ able-bodied male population for war,
2nd have a system of mobilization worked out practically
during peace whereby the r~gularly organized armies, embodying the whole armed strength of the nation, can quickly
be placed in the field in time of war. This is the policy of the
more important States of continental Europe. With them
levies en masse are not favored. And yet France in 1814, and
again in 1871, resorted to them; as in fact every people of
spirit would always do in the last extremity. On the other
hand, those States will be found to maint.dn the right t, levy
such masses which have small standing armies or have not
l.dopted the principle of universal service in the ranks. These
Slates are far the more numerous of the two classes, {lnd embuce all nations except those of Central Europe. It will not
be denied that it is to the interest of States with small standing
armies to maintain th~ legality of levies en masse. If attention
be confined, therefore, to this narrow view of the subject,
these States have no advantage in the argument over those
who maintain the opposite opinion, for each looks no further
than personal interest. But those who support the affirmative
r. Bluntschli, Laws of War, I., par. 89: Instructions Armies in Field,
Sec. 3, pars. 4, 5; Hague Conferetree, Sec. I, Chap. " Art. Il (G. 0.52,
A. G. 0., 1902.)
9--
130
6.~
131
is perfect. Its expediency is another question. In determining upon this the gre'lt difficulty of directing the fighting
power qf such masses with coherency and ~ffect; the impossibility of making a prolonged effort with them; the embarrassment ever attending their supply and transportation; the
danger of their melting away, becoming mere marauders at a
time when they ar~ most needed, more dangerous to fri~nds
than fot"s,-art" considerations not to ~ lost sight of by a State
which dep~nds upon levies en masse to sustain its honor, vindicate its rights, and redress its wrongs.
112. With regard to employm~nt of levies en masse it may
be said, after a most interesting and intelligent discussion of
the subject since 1870, particularly at various conferences of
learned bodies in Europe versed in the laws of war, that general opinion there expressed tends to maintain these propositi,ms: (I), th'll: in order to insurf> treatment !l.S belligerents
irregular troops must wear some distinguishing mark; (2)
that they must be comml:'nded by officers who are commissioned by their government; (3), they must observe the
laws of war. 1 Upon this point the American Instructions are
as follows (Sec. 3, par. 4. 5):
"If the people of that portion of an invaded country which
is I'.ot yet cecupied by th~ enemy, or of the whole country, at
the appro<Jch of a hbstile army, rise, under a duly authorized
levy, en masse to resist the invadir, 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 occupioo by an army, rise ag'linst'it, they are
violators of the laws of war, and are not entitled (0 their
protec tion."
I. Manning, p. 207, Amos' note; Maine, pp. 168-176; Hall, pp. 474."7; Blunt9Chli, I., Sec. I32j Hague Conference, Sec. I, Chap. I, Art. I.
(It O. 52, A. G. 0., 1902.)
CHAPTER IX.
LAWS OBLIGATORY WITHIN OCCUPIED TERRITORY.
113. As territory subject to military government forms no
part of the national domain unless by conquest, treaty, or
appropriate legislation it becomes such, it follows that the
laws of the United States, of their own force and rigor, do not
extend over that territory. 1 Nor, by the law of nations, is
either the civil or criminal jurisdiction of the conquering State
considered as extending over such territory. Jurisdiction of
the vanquished power is indeed replaced by that of military
occupation, 2 but it by no means follows that this new jurisdiction is the same as that of the conquering State. It is usually
very different in its character and always distinct in its origin.
Hence the ordiuary jurisdiction of the dominant State does not
extend to actions, whether civil or crimin'l1, originating in the
occupied territory. As remarked upon one occasion by the
Supreme Court of the United States: What is the law which
governs an army invading an enemy's country? It is not the
civil law of the invaded country; it is not the civil law of the
conquering country; it is 1llilitary law, the law of war, and
its supremacy for the protection of the officers and soldiers of
the army when in service in the field in the enemy's country is
as ess('ntial to the efficiency of the army as the supremacy of
the civil law at home, and, in time of peace, is essential to the
pres~rvatjon of lib~rty. 3 "In the event of p military occupation," s'1id Maine, "the authority of the regular g )vernment
is supplanted by that of the invading army. The rule imposed
by the invader is the law of war. It may in its character be
either dvil or military, or partly one and partly the other.
I.
140.
2.
132
133
The rul~ of military occupation has relation only to the inhabitants of tht: invaded country." 1
.
114. It is well settled that a foreign army permitted to
march through a friendly country, or to be stationed in it, by
permission of its government or sovereign, is exempt from the
civil and criminq,1 jurisdictbn of the pldce.2 So much the
more would an army invading an enemy's country be exempt
from the jurisdiction of the latter. 3 On the other hand military government does not permanently oust the jurisdiction
of the vanquished and ipso facto substitute the national jursdiction of the occupying State. Such ~n effect is prqduced
only by incorporation or definitive occupation. We refer
here only to the jurisdiction of common law and the ordinary
and usual cognizance of cases without in any manner diminishing the rights derived from war and the measures necessary
for the government of military occupation. In this resp~t
there is no diff~ence betwe~n a war in which the contending
parties are independenc nations and ~ war waged against
rebels treated as belligerents. 4 For when a nation becomes
divided into tW.l parties absolutely independ~nt and no longer
acknowledging a common supmor, the war between the parties stands on the same ground, in every respect, as a public
war between two different nations.
115. The question here arises: What laws are obligatory
upon the authorities enforcing military_government? Broadly,
the answer must be in the language just quoted of the Supreme
Court, "The laws of war." But practically the subject admics
of more precise determination. The military commander,
under military government, will derl with three classes of cas~s:
First, those affecting the persons and property of the conquered,
determining their rights, duties, and obligations; second, those
which concern, in a similar manner, citizens of the conquering
State, either soldiers or others within the district occupied;
tllird, those which affect citizens of neutral States similarly
I. Maine, p. 179.
2. The E:'tchange, 7 Cranch, 139.
Tenn., 97 U.5., 516. 4. 97U 5.,516-17; IOOU.S,'7 n
3. Coleman 'II.
134
situated. The laws which control in dealing with the first and
last classes are those of war, absolutely; but, as to the second,
the rule, upon examination, will be found to be somewhat
different.
116. As to the first class: It has been shown 1 that retention of local laws, for the adjudication of local affairs in the
subjugated district, is a matter within the discretion entirely
of the conqueror. 2 It is hi~ act of gract'. The rule is convenient as well. It would be productive of the great~st con- .
fusion if a community who had been governed by one law
should have that hw, with which they are acquainted, suddenly changed for another of which they are totally ignorant,
as well PS of the tribunals which 9re to adIninister justice
among them. They may be permitted, therefore, to preserve
their laws and institutions for the time, subject to modification
at the will of the conqueror. Indeed, under the present rule,
local laws remain in force until so modified. 3 This is a great
amelioration of the former rule. By the severe practices of
war, as carried on in ancient and indeed far down into modern
tinies, the vanquished had no rights as against the victorious
enemy. But under the softening influences of Christianity
snd an advancing civilization these stern laws of man in his
n9tural and primitive state have been greatly ameliorated.
The~e modifications are elastic and tht'ir pr'lctical' application chlJracterized by more or less severity, but in their general
eff<'c1 they are regarded as obligatory upon commanding generds in the exercise of belligerent rights. For their observance
the genen.ls are answer.Jble to their government, and the latter
to the f[.mily of nations.
I. Ante. Chap, 6.
1. Kimball 71. Taylor, Wood's Reports, 2d La.
Dist.; G. O. HX>, A. G. 0.1863, Sec. 2, clause 17. 3. Hague Conference,
Sec. 3, Art. XLI II.; G. n. 52, A. G. 0., H}02; 97 U. S. Rep., 509 et seq.;
100 U. S. Rep., 158 et srq.
~JOTF..-It haq hef"n [Issertf"r1 that the authority of the local. civil, and
judicial administration is suspended, as of course, so soon as military occupation takes :J!ace, although it is Dot usual fur the invader to take the
135
136
military authority, of the criminal and dvillaW', 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 snspension, substitution,
or dictation.
"The commender 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 pe':lCE', unless otherwise ordered
by the military authorities. 1
"On occupying a country an invader," says Hall, "at once
invests himself with absolute authority, and the fact of Ol.'CUpations draw with it, as of course, the substitution of his will
for previously existing law whenever such substitution is
reasonably needed, and also the replacement of the actual civil
and judicial administration by military jurisdiction. In its
exercise, however, this ultimate authority is governed by the
condition that the invader, having only a right to such control as is necessary for his safety and the success of his operations, must use his power within the limits defined by the
fundamental notice of occupation, and with due reference to its
transient character. He is therefore forbidden, as a general
rule, to vary or suspend laws affecting property and private
personal relations, or which regulate the moral order of the
community." 2
The word "forbidden" here used can probably only mean
that the invader is under moral obligations. His supa-iors
alone have authority to forbid his doing anything.
119. And not only the laws, but the courts for administering
them are such as the conqueror may elect. They may be
either the ordinary civil courts of the land, or wpr courts, generally styled in the United States service, military commissions
and provost courts. "The most important power exercised
by an invader occupying a territory," says Maine, "is that of
punishing, in such manner as he thinks expedient, the inhabI.
Sec.
I,
par. 3.
2.
137
itants guilty of breaking the rules laid down by him for se-curing the safety of the army. The right of inflicting such
punishment in case of necessity is undoubted; but the interests
-of the invader, no less than the dictates of humanity, demand
that inhabitants who have been guilty of an act which is only
a crime in consequence of its being injurious to the enemy,
-should be treated with the greatest leniency consistent with
the safety and well-being of the invading army." 1
120. When New Mexico was occupied by United States
forces in 1846, there was established a judicial system, con-sisting of an appa1ate court constituted of three judges appointed by the President, and circuit courts, in which the laws
were to be administered by the judges of the superior or appellate court in the circuits to which they should be respectively
assigned.
The jurisdiction of the courts extended, first, to all criminal
cases that should not otherwise be provided for by law; second,
exclusive original jurisdiction in all civil cases which should
not be cogruz':I.ble before the prefccts and alcaldes. Of the
validity of these measures no question was ever raised during
the period that the territory was held by the United States as
conqueror. It would seem to admit of no doubt that during
the period of its existence and operation this judicial system
must legally have displaced and superseded every previous
institution of the vanquished or deposed political power
which was incompatible therewith. 2 The vll1idity of the
judgments of these courts has been sustained by the Supreme
Court of the United States,3-the principle upon which the
latter court proceeded being that an order given in accord9nce
with the laws of war, by virtue of the conquelor's right to be
obeyed, should have the effect of law as to acts done under
his authority while still in force. 4
I, Page Ill<>.
2. 20 How., 178.
Amer. Canst. Law, Vol. 2, p. 945.
3. 16 Howard, 164.
4- Hare's
J 38
All United States militar:v authotities, wherever their conquering arms have gone since the beginning of the Spanish
War in 1898, have acted on this principle.
:.....:~
J 2 J. Wherever the armies of General Scott operated- in
Mexico there was not permitted the least interference with
the adIninistration of justice between native parties before
the ordinary courts of the country. Trial of offences, one
party being Mexican and the other American, was referred to
military comInissions, appointed, governed, and limited, as
nearly as practicable, in accordance with the law go~erning
courts-martial in the United States service. The proceedings
w~e recorded, reviewed, approv~, or disapprov~ and the
sentences executed like in cases of courts-martial. But no
military commission was authorized to try any cas~ clearly
cognizable under the law by local courts. Further, no sentence
of a military commission was permitted to be put into execution
against any individual belonging to the American army which
was not, according to the nature and degree of the offence as
established by evidence, in conformity with known punJshments in like cases in some one of the States of the United
States. In so far as inhabitants of Mexico, sojourners and
travelers therein, were concerned, the other parties to the trial
being American, cognizance of causes by military commissions
was confined to crimes known to the municipal laws of the
States of the Union and to the unlawful acquirement of United
States property from members of the invading army. A certain kind of POlitical offence affecting only inhabitants of the
country was also made triable by militat y tribunals, viz.:
where prosecutions had be~ commenced before the civil
courts of Mexico against members of the communi ty on the
allegation that they had given friendly information, aid, or
assistance to the American forces, their prosecutors, when
they could be apprehended, were brought before military
comInissions. 1
I.
Appendix I.
139
140
123. Thus far reference has been made only to courts and
systems of judicature organized during military occupation
of territory oufside the boundaries of the United States. The
same rules govern within territory wrested from rebels treated
as belligerents. The decisions of the Supreme Court of the
United St'.l.tes have dispelled whatever doubts at one time
existed on this subject. That they should have existed is not
surprising when we recall the belief; long inculcated, tha t the
Federal Government, however strong in conflict with a foreign
foe, lay manacled by the Constitution and helpless at the feet
of a domestic enemy. 1 The constitutioIldI right of Congress
and the Executive Department to adopt ordinary war measures for suppressing rebellion, under the circumstances here
mentioned, was repeatedly affirmed. The war powers of the
Government and its agents were pronounced equal to the
emergency; and among others the power to institute courts,
with both civil and criminal jurisdiction, and military commissions. 2
captured, and the enemy, driven froUl the field and almost dispersed, encouraged marauding and predatory warfare of small parties on the lines
of communication and detached posts of the American army, General
Scott organized what were called councils of war, composed of not less
than three officers. There was no necessity for the two kinds of courts,
namely, councils of war and military commissions. Each was sufficient,
had the commander but invested it with requisite powers, for the trial of
all cases brought before both. There was this positive disadvantage in
having both. that thereby confusion resulted when the character of the
offences was such as made it questionable which court probably could as
sume jurisdiction. This could have been avoided by having one style of
war court take cognizance of all offences not triable by. courts-martial or
the civil courts of the land. We have pwfitf'd by this experience. The
\.uunci1 of war hal' dropped out of use in the United States; military rom
missions have since performed the duties fonnerly devolving 011 both, aud,
as the only recognized war court, has received on an extensive field and
in a vast variety of cases the sant'tion not only of executive, but of legislative and judicial authority.
I. II Wallace, 331.
2. 100 U. S., 159; 9 Wallace, 133; 22 Wallace,
294; 20 Wallace, 393; 12 Wallace, 173; see R. R. S., I., Vol. 12, Part I., p.
52, for Gen. McDowell's stringent military commission order.
141
I. :lO
Wallace,
39.~94; 2
Wallace,
417;
6/uid., I.
2.
Appendix J.
142
I.
7i
II,
Part III., P.
143
144
616.
17.
Part II., p.
41. 2. Gate~
v. Goodloe,
101
U. S.,
(45
146
384.
147
133. The principles announced by the commanding general when the city was captured as those which should govern
him in repressing disorder and crimes and securing the observance of law have been already mentioned. 1
134. A military commission of not less than five officers of
and above the rank of captain, with a recorder and legal adviser, was directed to be organized for the trial of all crimes
and misdemeanors which by the laws of any State in the
Union or the United States, or the law martial, were punishable with death or a long term of imprisonment. The sentences of such commission were to be assimilated to those
provided by such laws, regard being had to necessity for severity and prompt punishment incident to crimes and disorders arising from a state of war. And recognizing that the
motives of men entered so largely as an element of the crimes
eognizant by the commission, the commanding general directed
that the rules of evidence of the English common law might
be so far relaxed as to allow the accused to be questioned before the commission to answer or not at his discretion. Charges
were drawn and proceedings conducted substantially after the
manner used in courts-martial. The proceedings, findings,
and sentences were reviewed by the commanding general.
The commission took cognizance of only the higher crimes and
misdemeanors. It was without civil jurisdiction. 2 So far as
known, no question arose :.>s to the authority to appoint this
eommission or the validity of its proceedings.
135. But the jurisdiction of the war courts was not to be
restricted to criminal matters; civil affairs were to be regulated. At the same time that the military commissions were
{)I'ganized an officer of the army was appointed provost judge
<>f the city of New Orleans. This provost court took cognizance
not only of criminal, but civil causes, among the latter one
involving a judgment for $130,000. Objection being made
that the court legally could not take jurisdiction, the case
148
I.
2.
9 Wallace,
121}; 20
IIQwar,I, r 76.
149
2:Z
Wallace, 297.
150
151
152
act of July 28, 1866, all suits, causes, and proceedings in the
provisional court proper for the jurisdiction of the circuit court
of the United States for the eastern district of Louisiana were
directed to be transferred to the latter to be heard and determined therein; and all judgments, orders, and decrees of the
provisional court in causes thus transferred to the circuit court,
it was provided should at once become the orders, judgments,
and decrees of that court, and might be enforced, pleaded, and
proved accordingly.l
Article 3, Section I, Constitution of the United States, declares that "the judicial power of the United States shall be
ves ted in one Supreme Court and in such inferior courts as the
Congress may from time to time ordain and establish"; and
the great question of constitutional law here was raised whether,
consistently with this, the President could establish the court,
or Congress, on the suppression of the rebellion, could, by its
enactment, validate its doings, transfer its judgments, and
make them judgments. of the now re-established former and
proper Federal courts.
After citing its previous decisions, the principles of which
were applicable to the case, the Supreme Court remark~d that
they had no doubt that the provisional court of Louisiana was
properly established by the President in the exercise of his
constitutional authority during the war, or that Congress had
power upon the close of the war and the dissolut;on of the
provisional court to provide for the transfer of cases pending in
that court and of its judgments and decrees to the proper courts
of the United States. 2 The clause of the Constitution relating
to the judicial power of the United Sta.tes, it was observed, had
no application to the abnormal condition of conquered territory
in the occupation of the conquering army; it refers only to
courts of the United States, which Inilitary courts are not; it
became the duty of the National Government, whenever the
insurgent power was overthrown and the territory which had
I. Chap. 310., Statutes at Large, 14, 344. -5. 9 Wallace, 133; 20
Howard, 1]6; 13 Ibid., 498; 16 lind., 164: 4. Wheaton, 246.
153
154
wars
l.
6l,5.
~.
155
.\
156
J 57
inal code prescribed by Congress had no validity within Mexican territory. The laws of the United States did not extend
over conquered districts of Mexico. While the rules and
articles of war accompanied the army for its government, the
civil courts deriyed no authority from that source. 1
149. Laws of the invaded country h<1ve no validity as affecting members of the conquering army. 2 They can not properly
be given jurisdictional effect. This has been frequently and
authoritatively decided. One of the most instrucdve decisions
of the Supreme Court of the United States upon this point arose
out of the seizure of certain property in that part of Louisiana
reduced by the Federal forces in 1862. It has already been remarked that within this district certain of the civil courts were
permitted to exercise jurisdiction. The decision of the Supreme Court in question put at rest all claim that such local
courts could pass upon the conduct qf members of the invading
army. The case arose in the following manner: Some months
after the occupation of New Orleans one of the subordinllte
commanders was sued in one of the local courts for the seizure
of twenty-five hogsheads of sugar and other property belonging
to a citizen of the State. To this suit, though served with
citation, the officer made no appearance. Judgment going by
default, action was brought upon the judgment in one of the
United States Circuit Courts, where, the judges being opposed
in opinion, the case was taken to the Supreme Court of the
United States. The importaut question was thus presented for
the determination of that court whether an officer of the United
States Army is liable to an action before the local tribunals for
injuries resulting from acts ordered by him in his military
character whilst in the service of the United Stat~ in the
enemy's country.
2. Case of Capt. Foster, 5 Opinions Attorneys-General, 55; Barr,
International Law, p. 700; see also case Capt. C. M. Brownell, Opinions;
Attomeys-Gent"ral, Vol., 24. p. 574; 97 U. S. R., 509; 100 U. S. R., ISS
23 F. R., 795. 2. Post Sec. 154.
158
LAWS OBLIGATORY
OOOUPIBD TEBBITORY.
159
v
v
160
97
at Large,
1861 j 12
Statute8
161
162
163
1/
164
applicability as to persons. .. Whosoever" is a term unlimited in its nature, and which can be limited only by .. construction"-that uncertain and potent modifier of statutory
law. In this instance it has been construed to mean what
the language naturally imports; and that anyone who is guilty
of the offences denounced is amenable before military courts
in the manner indicated in the articles. l Where civil courts
are sitting to which the offender may be delivered for trial,
this course may be and often is pursued. These articles, being
penal in their nature and derogatory of the constitutional
right of trial by jury, are to be strictly construed. Wherever
the civil courts without prejudice to the interests of the service
can take jurisdiction this should be done. But this is not
the case under military government, where such offenders
must either be tried by the military or go unpunished.
158. In its terms the sixty-third article of war subjects
.. retainers" and others mentioned .. to orders only according
to the rules and discipline of war." But by universal construction given the language of the article the persons indicate? have been held amenable to trial before military courts
for violations of either the statutory or common-law military codes. J.
159. For crimes for which they may be accused, civilians,
citizens of the conquering State, accompanying the army, are
under military government, subject only to either statutory
law directly applicable to their cases or to the common laws
of war, and are amenable before military courts. In the
nature of things it must be so. The jurisdiction exercised over
this class must be either military or civil. If the former, it
can only be exercised by military commanders in accordance
with military law, either statutory or common. If the latter,
cognizance of crimes by civil courts must be in pursuance of
the criminal laws either of the conquering or the conquered
2.
165
166
Bisliop,
~8brigas,.1
II.
167
1.
'
I. 13 Howard, 137, ,2. ,A9t~,~. USWheaton, International Law; Sec. 342'. ,.,
, .0
~oolsey, Se0f~.
4,
168
3. HaDeck, Chap.
33,
Sec.. 9.
J. 93 U. S., 530
occupmn
TERRITORY.
169
170
171
172
173
1 Howard, 241; Mitchell'll. Harmony, 13 How., 137; Wharton, Iota"aational Law, Sec. 113.
174
~n.ITARY
: ... 1
',,;
..
CHAPTER
x.
176
2. IS Cl"anc" 10.
177
178
speculative writers may please their fancy, the pmctice of nations is to assert and enforce the rule that confiscation is lawful. The many treaties existing between nations modifying
the right as to certain persons under particular circumstances
impliedly admit the integrity of the rule. 1
175. "A conquering State," says Manning, "enters upon
the rights of the sovereign of a vanquished State; national
revenues pass to the victor, but the immovable property of
private individuals is not liable to be seized by the rights of
war. With regard to movable property the law is not so
moderate in its treatment; movable property is still considered as liable to seizure. This right the invader compounds
for requisitions and forced contributions; and, as long as these
are supplied, all other movable property is respected by the
hostile foree, exct.'pt in towns taken by assault or as punishment for enemy's conduct." He then points out, what experience has SO often proved to be true, that requisitions regularly made in a hostile country have a great advantage over
pillage; to the invader, because it supplies him regularly; and
to the people, who have then to furnish only what the army
reasonably requires. 2
[76. The right to confiscate enemy property has been judicially determined. In the case of Brown 'V. the United States
the principle was assumed by the Supreme Court that war gave
a belligerent the right to seize the persons and confiscate the
property of the enemy wherever found; and while the mitigations of this rigid rule, which modern practices have introduced, might more or less affect the exercise of the right, they
could not impair the right itself. That remains perfect, and
when the sovereign authority shall choose to bring it into
operation, the judicial department gives effect to its will.
Until that shall be expressed, the judicial power of condemnation does not exist. In the opinion of the court, the power of
~nfiscating enemy property is in the legislature, and without
a legislative act authorizing confiscation it could not be judi1.
1.
2. Pages
J 82-83.
179
30~, Daml'S
note, I.~t>;
ISo
1-.
U. S.,
II
RIGHTS REGARDING PRIVATE PROPERTY.
181
10,
2.11
Wallace, 305.
3- 13 Wallace, 136.
18:z
[83
jurisdiction of the amount. The act extended to all descriptions of property, real or personal, on land or on water. The
Supre~ Court decided that its enactment was in virtue of
the war powers of the governm~nt. It defined no crime. It
imposed no penalty. It declared nothing unlawful. It was
not, th~refore, a m~re municipal regulation for the punishment
of crim~. It was aimed exclusively at th~ seizurp. end confisccltion of property used, or intended to be used, to aid, abet,
or promote the rebellion, then a war, or to maintain the war
against the government. 1 It treated the property as the
guilty subject.
The second confiscation act was that of July [7, [862. 2
The fifth section enacted that to ensure the speedy termination
of the rebellion it was made the duty of the President to cause
the seizure of all the estates and property, money, stocks,
credits, and efI~ts of any person thereafter acting as an officer
of the rebel army or navy, President, Vice-President, member
of Congress, judge of any court, cabinet officer, foreign minister, commissioner or counsd of the so-called Confederate States,
anyone acting as governor, member of a convention or legisbture, or judge of any court of any of the so-called Confederate
States, or any person who, having held an office ~f honor, trust,
or profit under the United States should thereafter hold an
office in the so-called Confederate States, or any person thereafter holding office or agency under the euthorityof the said
States or any of them, or anyone in the 10ypJ portions of the
United States who should thereafter assist and give aid and
comfort to the rebellion, end to apply and use th~ same and
the proceeds thereof for the support of the army of the United
States. The sixth section provided that p.ll p~rsons other than
those before named, within any State or Territory of the United
States being engaged in armed rebellion r.gainst the government th ~reof, or aiding or abetting such rebellion, and not
cc?..sing so to do end returning to his dlegiance within sixty
I
II
PIJ 51)0-91
Waliact'..~o8.
2.
Chap.
illS,
Sec..'S. 5, 6,
12
Statutes at Large,
184
Miller 11. U.
s.,
u Wallace, :'08.
185
cldim ex~mptions which the subj~ts of the enemy do not possess. Depriving them of their property is a blow against the
hostile power quite as effective, tending as directly to weaken
the belligerent with whom they act, as would be confiscating
th~ property of a non-combatant resid~nt. This is th~ established law of nations in case of a foreign war. Those are
placed in the category of enemies who act with, or aid or abet
or give comfort to the opposing belligerent, though they may
not be residents of enemy territory. The court therefore
concluded that all the classes of persons described in the preceding confiscation acts were enemies within the laws and
usages of war, because the principles applicable in case of l!L
foreign, determine likewise who are enemies in a civil war.
Therefore, not only those who resided in the insurrectionary
States, but those who inhabited loyal districts, yet who assisted,
aided, and gave comfort to the rebellion, were enemies whose
property was subject to confiscation in the manner pointed
out in the acts. I
It is particularly worthy of notice th'lt, in no inst'lnce, was
property to be confiscated under the terms of these acts except
upon the condemnation by decree of the civil courts.
182. The confiscation acts were rendered necessary by the
obstinacy and magnitude of the resistance to the supremacy df
the national authority. To overcome this resistance and to
carryon the war successfully the entire people of the States in
rebellion, as well as those in loyal States who aided the rebellion.
were considered public enemies. 2 But it was well known that
many persons in the rebel States whom necessity required
should be treated as enemies were in fact friends, and adhered
with fidelity to the national cause. Compelled to live among
those who were combined to overthrow the government, those
of this class who lived in insurrectionary territory were liable
at all times to be stripped of their property by rebel authorities. Although technically enetnies, the National Government
I. II Wallace, pp. 306-13.
2. See antlf, and Miller v. U. S.,
PP 36- 1 3; U. S.1I. Andel'9On, 9 Wallace, p. 64-
II
WaHace.
.J
186
Chap.
120, 12
187
2.
]88
Ante, Sec.
2'.
189
190
191
92 U. S., p. 195.
192
~.
193
194
city. The city took the place of the[United States and sue
ceeded to all their rights under the contract. 1 The lessees became bound to the city in all respects as it had before been
found to the covenantees in the lease. The city thereafter
collected one of the notes subsequently due, and it holds the
fund without an offer to return it while conducting this litigation. It is also to be borne in mind that there has been no
offer of adjustment touching the lasting and valuable improvements made by the company (lessees), nor is there any complaint that the company has failed in any particular to fulfill
their contract. We think the lease was a fair and reasonable
exercise of the power 'vested in the military mayor and the
two boards." 2
Unquestionably this opinion, whatever its merits in the
abstract, is not strictly in accord with the generally accepted
authorities regarding the time-limit of contracts entered into
by military officials under military government. The court
did not question the soundness of the principle contended for
by these authorities, that such contracts cease with the power
which creates them. But the peculiar features of the case were
held to be sufficiently striking, the claims of the lessees to rest
so clearly and firmly on justice and equity as to remove their
cause from the operation of the general rule.
191. The laws of nations, it has been said, are based on
common sense, and the laws of war ar~ a branch thereof. 3
This opinion of the Supreme Court rests on reason. It should,
therefore, be considered as establishing the rule applicable to
this and similar cases whatever the nation involved and wherever the military force be employed. The laws of nations are
not inflexible, like the rescripts of the Roman emperors.
While possessing the stability of a recognized code, they change
with circumstances, improve with time, and adapt themselves
to the intellectual and material progress of peoples. When,
therefore, as in this instance, the teachings of the past are at
I.
U. S.
'11.
Z. 20
Wal
195
.96
I~T
198
Vattel, Book Ill., Chap. 9, Sec. 164. 2. Wheaton, Sec. 355; Kent,
3. G. O. 109, A. G. 0., 1862. 4. Kent,
199
200
~GHTe ~AIlPING
PBIVATE li'ROPERTY.
201
policy of modern times, I1S just mentioned, has been to estp b!ishJ'the rule th:lt on land property will not.be taken if it he "
DOt liable to direct use in war. 1 Some of the reasons for this
are'the infinite varieties of such property-from things almost
~ed to things purely merchantable; the difficulty of discriminating among these varieties; the need of much of it to
support the lives of the inhabitants; the unlimited unge of
placN and objects that would be open to the military; .md
the moral dangers attending se2rches and captures in households and among non-combatants. 2
The mle extends to cases of absolute and unqualified conquest, Even when the conquest of a country is confirmed by
the unconditiunal relinquishment of the sovereignty of the
former owner, there can he no general or partial ban')mutation
of private prupet ty in vil tue of any tights of conquest. Private
l1ghts and priv':lte property, both movable and immoyahle, are
in general unaffected by the operations of W9r.
202. Such is the tenor of the instructions for the United
States Armies in the field. Here it is announced th'lt the
United States acknowledges and protects in hostile countrit's
occupied l>y them religion and morality, strictly private property, the person;; of the inh9bitants, especially those of women,
and the s9eredness of domestic relations. Offenders against
, these rules a.re rigorously punished. But the rule does not interfere with the right of the invader to tax: the people or their
property, to levy forced loans, to billet soldiers, 01 to appropriate property, ~p~iu1ly houses, lands, boats, ships and churches,
for temporary and military uses. Private property, unless
forfeited hy crimes or by offences of the owner, is to be seized
only hy way of military necessity for the support or other
benefit of the army. If thp owner has not fled the commander
will give receipts for it with a view to possible indemnity.
203. )'0 the most generous construction of the rule that
pri.,.ate enemy property is not to be taken ,,,ithout compensaI. Bluntschli, I., Sec. 144; Woolsey, 5th eod., Sec. 126.
Part IV., Sec. 355, Dana's note, p. 171.
2. Wheaton.
202
lit
203-
204
MILITARY GOVERNMENT
)URTIAL LAW.
cation. It is one of the common practices of war. The instances are numerous during the Civil War where commanders
notified the people amongst whom they were that they or particular officers would be held responsible for war crimes of
this nature.
There is another reason for this severe rule. Cowardice and
crime often seek to screen themselves in the obscurity of the
crowd. Collections of individuals and even communities can
often in an indistinguishable mass be brought to do that which
the individual members, standing on their own responsibility,
would shrink from doing. The trying incidents of war
offer many opportunities for the display of this trait of human
weakness. The surest way to cwb this is to have it well
understood that the cloak of the many affords no immullit)
for the tr:lnsgrcssion~ of the few.
207. In the fall nf 1861, as ~argp numbers of Union r<>fugcps
werp driven from districts oi the State held by rpbels into St.
Louis, Mi,;souri, the commanding general, a distinguished
soldier, lawyer, and writer on internttionallaw, directed that
these destitute people be maintained at the expense of those
in tl>at city who WeIe known to be hostile to the Union cause. I
EnfOlced contributions from the enemy are equp.lly ~uthorized
whether leqllired during the pwgxess of the war for the sustenance and transportation of the conqueror's army, or after
the conclusion thereof, as one of the teI Ins of peace. 2
208. The Constitution of the United States makes no distinction between real and personal property taken for public
use, nor do the decisions of the Supreme Court. The same
obligati0ns apply to both. But there is a distinction tv be
drawn between property used for government purposes and
property destroyed for the public safety. If the conditions
admitted of the property being acquired by contract and of
being used for the benefit of the government, the obligation to
remunerate attaches, and it must be regarded as taken under
2
IIO
U. S., p. 633.
205
206
2.
207
circumstances, would be owing to the Mexican Federal Government, to be used in procuring supplies for the army of occupation. In doing this he gave his adhesion to an enlightened
policy. Ordinary revenuc:s werE' oot molt"Sted. The civil
government of the various Mexican States, as well as cit) 3nd
municipal gOVel nments, were C dl"ourcg('d tc. rl:main in U~e
dis(~!largE' of th(>ir duties.
It w IS recognized that whi f' perforlD~ng thl"ir functions they must have pecUllinry ~upport. y
H~Tlce every prt'c Aution W..$ taken that moderate a.nd reasonahle Sl'OlS should bl" l;et aside fo: tbis purpose. In the capital
city itself '1 considerable sum was collected in lieu of pitlage.l
The magnanimity of this victorious commander in apportioning his demands on a conquered people according to their
ability to meet them, and the even-handed justice with which
he enforced his contribution!>, ml"tits e\rery applause. This
notwithstanding the fact that a sum levied in lieu of pillage
may sound like a harsh proceeding. It was merciful. It reduced suffering as much as possible consistent with efficient
military control; and, by the contentment of the people therety
secured, lessened the duties imposed upon his army and in
many ways enhanced the interests of the United States. And
it conformed to the teachings of the sages of the law. CIA
general," says Vattel, "who wishes to enjoy an unsullied
reputation, must be moderate"in his demand of contributions
and proportion them to the abilities of those upon whom they
are imposed An excess in this point does not escape the reproach of cruelty and inhumanity; although there is not so
great an appearance of ferocity in it as in ravage and destruction, it displays? greater degree of avarice or greediness." 2
Those upon whom contributions are levied during the progress of Wdr are not the armies of the enemy; if so, there
would be an excuse for severity. They are, as a rule, non-combatants, peaceable citizens, and corporations, all of whom the
demands uf the timl'S bavl: tl,rown into tinam.bl stralts. To
I. Scott's Autobiography, PP. 558, 560,582.
Sec. 165.
'/
209
-14-
:210
211
212
.'
* *
213
"
214
I
I
off. All this tends to promote the main objects of the war, but
such measures are only to be pursued with moderation, and according to the exigency of the case. This accords with universal practice. If such destruction be necessary in order to
cripple the operations of the enemy or to insure our ,;uccess, it
is justifhble. Thus if we cannot remove captured property
we may destroy it, but not in mere wantonness. We may
destroy provisions and forage in order to cut off the enemy's
subsistence, but we cannot destroy vines and cut down fruit
trees without being looked upon as barbarians.
218. In some inst::'llces the right of an ~.ctive belligerent to
destroy enemy property has becn carried far beyond this.
Extensive territories have been rav::ged, towns End viUr.ges
sach.d. This mO!.y be jU.itified: First, us ~n act of retli.lifltion,
when the enemy, upon our own territory, has adopted a system
of spoliu.tion. Thi.. WLS illustrated in the lest war between
the United Str.tes and Greet Britain, wherein the British military and navd forces, in revenge for alleged destruction of
property by the United States Army in Upper Canad.l, laid
wc.ste much of the country r..djoining the bays of the Atlantic
coast and burned the capital and other public buildings at
Washington; and though the conduct of the British commanders WLS stigm2.tized c.s mere w:.ntonnel;S because the circumstances upon which it was predicr.ted were not such as to
warrant the severe mec.sures taken, still the principle of retaliation under proper conditions contended for by them, and
which, erroneously r.s wr.s claimed by the American Government, they relied upon to justify those measures, wr.5 never
questioned. Second, when necess?ry to weaken the military
power of a formidable foe, c.s illustrated by the burning of
Atlanta, Georgia-an important strategic point, which could
not be held-by General Sherman ~n 1864-. And while it is
true that a commander who should without necessity thus
destroy property becomes the scourge of mankind, still, if
that necessity exists, in order that the operations of the war
may be successfully conducted, he hc.s an undoubted right to
2 15
take such a step.! The rule of law is that destruction is justified only so far as it is indispensable.
219. The destruction of property in this m~.nner cannot
take place under military government except to punish a rebellion against established authority. To resort to such
measure,; would crumble to pieces the foundation upon which
such government is based. The tcmpomry alIegiance of the
people ,is owing only on condition that they receive, in return,
whatever degree of protection to liberty, persons, and property
may' comport with a proper militr.ry control. To destroy
that property with the attendant violation of rights of person .
and liberty of action that would ensue, under any of the special
pleas set up as excusing such conduct on the part of a belligerent operating against the enemy in the field, would at once
dissolve the slender bonds uniting the government with the
people. The ktter would be justified in rising ugainst conquerors who make use of their power only to de~poi1 those
whose territory they have overrun.
And herein is disce1 nible an important distinction between
the obligations of those who give temporary allegiance to a
military and those who owe permanent alIegiance to a regularly established government. While destruction of property
and laying waste territory would release the former from
transient oblig:1tions to a mere government of force, such me2.Sures, if adopted by the permanent government to thwart an
invader would not justify subjects in rising in rebellion unless
carried to the length of oppression. The re~son of this distinction is readily seen. In the former case government is
established over the people, perhaps with an implied consent,
yet without that consent freely given. It is based on military
force and that alone. The correlative duty between such government and its temporary subjects, as before remarked, is
protection on the part of the former and, so long as that continues, quiet acquiescence on the part of the latter. Withdraw
I. Boyd's Wheaton, PP. 4 15, 421; Vattel, Book III., Chap. 9. Sees.
167-78; Manning, p. 186.
216
217
Large,
8 Cranch. p. no.
12, p. 589.
2.
218
II
Wallace. p. 305.
2.
219
220
.. pp.
2.
VoL
221
"-
222
of its situation, and is subject to seizure without inquiring regarding the nation::>..lity, opinions, or predilections of the
owner. 1 If for any reason it should be exempt it is for the
owner, if called upon, to establish that fact. 2 The rule :>ometimes laid down, that to become the property of the captor
firm possession of movables must be held fortwenty-fourhoUTSa
is not in accord with either the practice orthe betterauthoritil's.4.
"Rights of possession in private property," says the Supreme
Cour"t of the United States, "are not disturbed by the capture
of a district or country or of a city or town until the captor
signifies by some declaration or act, and generally by actual
sdzure, his determination to regard a particular description
of property as not entitled to the immunity conceded in conformity with the humane maxims of public law"; and again,
'the right of possession in private property is not changed
in general by capture of the place where it happens to be. ex"
cept upon actual seizure in obedience to the orders of the commanding general." 6
228. The question as to just what is necessary to vest perfect title in the conqueror to movable private property on I md
becomes of practical importance in case it again comeS under
dominion of the now vanquished State.
By the recognized right of post liminium, things taken by
the enemy are restored to their former status of former owners
on coming again into the power of the nation to which they
belonged. 6 In return for their allegiance the sovereign i~ bound
to protect the persons and property of his subjects and to defend them against the enemy. When, therefore, a subject or
any part of his property has f:l1len into the enemy's posse~ion,
should any fortunate event bring them again into the soverI, Whiting, p. 57; Vattel, Book 111., Chap. 5, Sec. 75; ~ Black, p.
674; 97 U. S., p. 60; The Vrow Anna,S, C. Rob., p. 17; ~ Wildman, Int.
Law, I., P.9. 2. Vattel,Book 111., Chap. 5, Sec. 75; 2 Wallace, p. 275. 3.
Kent, Vol. I, p. 110. 4. See authorities, note 4, p. 221, ante; also Young
1/. U. S., 97 U. S., p. 60.
5. 9 Wallace, pp. 540-41. 6. Vattel, Book
III., Chap. 14, Sec. 204; Kent, 1, p. loS.
3.
224
ing been captured and recaptured on the same day, the booty
taken from the inhabitants was restored to them. The natural
reason of the conduct adopted towards the inhabitants of Lierre
was that the enemy being taken, as it were, in the fact and before they had carried off the booty, it was not looked upon as
having absolutely become their property or been lost to the
inhabitants. 1
"Movables," says Kent, "are not entitled by the strict rulelt
of the laws of nations to find the full benefit of postliminy unless
retaken from the enieny promptly after capture, for then the
original owner neither finds a difficulty in reco~zing his
effects, nor is presumed to have relinquished them. Real property is easily identified, and, therefore, more completely within
the rights of postliminy; and the reason for ~he stricter limitation of it in respect to personal property arises from its transitory n9ture and the difficulty of identifying, it and the consequent presumption that the original owner had abandoned the
hope of recovery.".a From all of which we infer that seizure
t. Vattel, Book III. Chap. 13, Sec. 196.
III., Chap. q, Sec. 209.
'\,
225
under competent military authority with a view to appropriation, together with the power to hold, and the actual retaining
in possession until proprietary rights can faitly be exercised
over it, passes legal title to movable enemy'~ property taken
in territory subject to military government.
229. Thus fM corporeal property has alone been treated of,
but the same rules of appropriation govern as to incorporeal
rights appertaining. to things-they follow the fortune of the
things themselves. 1 This rule, analogous to that which governs in c~e of incorporeal rights appurtenant and accessory
to real property, is founded on reason and universal custom.
Whatever of rents or profits adhere to or issue out of movable
property on land must, equally with like incidents attaching
to real property, be subject, under military government, to
appropriation. In the ordiJ.ary course of business the former
as compared with the latter will be insignificant in value;
still, on that account, the right to seizure is none the le~s clear.
On principle there exists no reason to distinguish between
these two sources of revenue. Either or both may be levied
upon by the conqueror to replenish his treasury, cut off the
possibility of their being transmitted to the enemy, and so
increase the coercive power brought to bear upon him.
226
221
of the reduction of the owner to slavery-no longer a permissible proceeding-confiscates such rights. In this class
come debts and other personal obligations. 1
232. Legal proceedings in courts established by or permitted
to perform their functions under military government cannot
impair the rights of citizens of the occupied territory who are
compulsorily yet only temporarily absent within the lines of
the enemy and so out of reach of process of those courts. This
principle, affirmed in Dean 'II. Nelson, 2 has been reaffirmed in
numerous decisions of the United States Supreme Court. In
the case mentioned, Dean, a resident of Cincinnati, Ohio, was,
at the breaking out of the Civil War, owner of a large amount
of capital stock in the Memphis, Tennessee, Gas Light Company. Before commercial intercourse was interdicted between
loyal States, including Ohio, and those in insurrection, including Tennessee, he sold this stock to Nelson, a resident of
Memphis. A note, duly executed by the latter; was given to
Dean, and a mortgage upon the guarantee's interest as a
stockholder was given to secure payment. The Civil War
rapidly intervened; the conditions of the note could not be
complied with. Memphis was in rebel enemy territory; Cincinnati in a loyal State. While. war was flagrant, and Memphis
remained under rebel control, Nelson transferred some of this
stock to his wife and other shares to one May.' On June 6,
1862, one year after the sale by Dean, Memphis was captured
by the Union forces and military government established there
and in the immediate vicinity. Nelson and his wife remained
in the city after its capture, so long as permitted by the Union
commander, but May resided permanently within the Confederate lines. In retaliation' for some guerilla outrages
perpetrated in the vicinity the Nelsons were expelled from
the Federal lines and not allowed to return, although they
requested permission. In September, 1863, Dean filed a petition before the civil court or commission instituted by the
Federal commander at Memphis in April preceding for hearing
I. Dana's Wheaton, note 169, p. ~439.
2. 10 Wallace, 158.
228
229
eral forces, expelled the Union lines, and there remained until
after the close of the war. During his absence certain premises
of his were sold in New Orleans on process instituted to foreclose mortgages. Immediately after the cessa.tion of hostilities
Lasere sought to vclCate these proceedings. His efforts resulted
in an adverse judgment in the Supreme Court of Louisiana.
Being taken by writ of error to the United States Supreme
Court, the judgment was there reversed. "It is contrary to
the plainest principles of reason and justice," said the court,
"that anyone should be condemned as to person or property
without an opportunity to be heard. Scant time was given the
plaintiff in error to prepare for his removal within the Confederate lines. During his absence he had no legal right to appoint
an agent or to transact any other business in New Orleans.
Lasere doubtless knew nothing of the proceedings against him,
and if he had such knowledge, he was powerless to do anything
to protect his rights." 1
Closely allied with the cases of Nelson and Lasere was that
of McVeigh 'II. United States, wherein the Supreme Court, after
stating the recognized rule of law, that an alien enemy, though
he has not the right to sue, may be sued in the courts of the
adverse belligerent, maintained that when so sued he had a
right to appear and defend. If assailed there, he could defend
there. The liability and the right are inseparable. A different
result would be a blot upon our jurisprudence and civilization.
The court could not hesitate or doubt on the subject. It would
be contrary to the first principles of the social compact and of
the right administration of justice. 2 The case arose in this
wise: Under the provisions of the confiscation act of July 17,
1862, a libel of information was filed in the United States
District Court for Virginia for the forfeiture of certain real and
personal property situated in that State belonging to McVeigh,
who it was alleged was a rebel and a member of the Confederate Army. At the hearing McVeigh appeared bv ('ounsf'l,
I.
17 Wallace, p. 437.
2.
II
Wallace, p. 267.
230
~31
,
232
I.
2. I
126.
233
from agents of the latter captured movable property of fellowsubjects; but, with this exception, the purchaser of movable
captured property on land acquires a perfect title so soon as the
property is in the firm possession of the captor. 1 On the other
hand, the purchaser of immovable private property takes it at
the risk of being evicted by the original owner when the permanent government has returned to power. This upon the
principle of post liminium.
238. As under military government the conqueror rules by
virtue of the sword alone, his title extends no further and lasts
no longer thun his physical force excludes the enemy. While he
thus rules he can do with property found in the territory as
either inclination or policy dictates. That which he can seize,
convert to his own use on the spot, sell to others, or carry
aw:l.Y, he can make his own absolutely. But the rule of
superior force marks the limitation of his right. When he
ceases to exercise th .t force and retires from the country all
rights he had acquired over immovable property at once
cease. 2 The ?.ncient owner, if it has been disposed of, now
may return to claim and re-possess what of real property
belongs to him. If, however, the conquest becomes permanent,
the title which the conqueror has conveyed to the purchaser
becomes indefeasible. It was before a good title against all except the original owner under the right of post liminium, which
complete conquest has extinguished. The conqueror is estopped
from assailing the title of his purch2.Sff. He sold the rights
. which he acquired by conquest; neither a formal treaty of peace
ceding the territory, nor long acquiescence of the people which
sometimes is held to have the same effect as formal cession,
can ,,:dd to these rights; at most it can only confirm that which
the conqueror already possessed. This being so, the conqueror
having disposed of all his rights under conquest gnd Lcquired
none since, he can not dispute the title of his dienee to immovable property; the original owner is not in a position to
I. Kirk 11. Lynd, 106 U. S., 317; Young 11 U. S. 97 US., p. 60.
the "lstTw, 1 Wheaton, 125.
2.
Sel'
234
question the acts of the permanent government, and the result is the complet~ extinguishment of the ancient title.
239. In most civilized countries immovable private property is much more valuable than movable. Its sale would
return larger sums into the coffers of the conqueror, adding
greatly more to his warlike resources. His object in alienating property is to add to those resources and diminish those
of his antagonist. As subjects of. the displaced government
can not, consistently with allegiance to their permanent sovereign, become purchasers of movable private property, so
much the greater are their obligations to refrain from purchasing the more valuable immovable property, the direct
result of which would be that they would furnish the means to
enable the enemy to prosecute the war. This they may not
do. The promptings of patriotism should deter them, though
interest tempts them from the path of duty. But of this thcy
may be certain: They not only risk the loss of their purchase
money on the restoration of the original sovereign to his dominions, but they expose themselves to punishment for voluntarily f.ssisting the enemy. If, however, they choose to
stifle sentiments which should ever animate loyal breasts, and
brave the just resentment of the government to which they
owe paramount allegiance, they run no further risks; and if
temporary conquest settles into established government, all
the rights they have acquired will be confirmed. Subjects of
the conqueror may become purchasers with no other risk than
that of being ousted by the original owner on the restoration
or recapture of the immovable property. The same may be
said of purcha"e by the subjects of a neutral State. But the
latter might be deemed in some cases a hostile act. The effect
of it is to render pecuniary assistance to one party to the war
to the prejudice of the other. It is liable, therefore, to be regarded as not within the limits of legitimate neutral conduct,
and so attach to the purchaser the character of an enemy to
the power adversely affected. 1
I. Halleck, Chap. 19, Sec. 5.
235
2,
r..
41<.
.3. Whel"
236
237
7 Wallace, p. 733.
2.
9 Wall, p.
201.
238
2. 12
Wallace, p. 457;
III
U. S., p. 51.
.~.
239
240
241
244. It has been decided, on the one hand, that under the
laws of war all such residents are considered enemies, their
property hostile without regard to the individual opinions of
the persons affected;l and on the other hand, as we have seen,
that property of loyal citizens of loyal States, the property
being situated within rebel districts, could not be purchased
under the Confederate confiscation acts of the rebel government and the buyer acquire valid title; yet if it be considered
enemy property solely because of its location in the insurrectionary territory, why should not title pass? If for all
purposes it be truly enemy property, why cannot the enemy
legally dispose of it? The conclusion drawn from the decisions is that it is not regarded as enemy property for all purposes. The military forces of the regular government might
properly so regard it, but in transactions affecting such property
and emanating in authority assumed by the rebel government,
it was permitted to go still further and inquire as to the loyalty
of the owner of the property affected. 2
If, however, loyq}tr to the regular gover~ment be the criterion by which is to be determined the voidability of transactions of the rebel government regarding property situated
within its dominion, whyshould the loyal citizen whose unhappy
lot it is to live there, under circumstances of complaint, perhaps, and subject to the vindictive measures of the enemy,
receive less consideration as to rights of property than he whose
lot is cast on loyal soil? It is true that the Supreme Court has
said that it is the duty of a citizen, in case of civil war, who is
a resident in the rebellious district, to leave it as soon as practicable and adhere to the regular established government. 3
Yet when we consider the difficulties surrounding one in his
position-that to seek the protection of the regular government
may be an act proscribed by that under which he lives and
which has at its disposal his property, his life, and all those
I. 2 Black, p. 674; 92 U. S., p. 194.
2. Knox 'II. Lee, 12 Wallace,
p. 457; Williams 1/. Brufl'y, 96 U. S., pp. 176, 187. 3. The William
Bagalay. 5 Wallace, p. 337.
If\-
242
243
volved was that only the political department of the government permanently could alienate the public domain. l
If military interests were sufficiently subserved, measures
might be adopt~d that tended to render the commercial value
of vested rights less, through a setting up competition against
the latter. 2
Public works and improvements might be suspended for
reasons of which the military authorities would judge, even
if this interfered with vested rights. 3
The binding of Cuba or any of its municipalities to large
expenditures and a continuing debt was a policy not favored
except upon grounds of great and pressing necessity. 4
22 Opinions Attorneys-General, p. 548; 23 ibid., pp. 226,562; 20
2. 220pinionsAttomeysGeneral, P' 409; 23 ibid., p. 427. 3. 22 ibid., p. 523. 4 22 ibid., P' 410
I.
CHAPTER XI.
RIGHTS REGARDING PUBLIC PROPERTY.
244
245
246
250. While the effect of complete conquest is that the conqueror succeeds to the public property of the vanquished State
of whatever character, whether movable or immovable, cor-.
pored or incorporeal, lying in possession or in right of action,
the rights which follow military occupation do not extend so
far as this; but to the extent that the temporarily dominant
power can reduce any species of property into its possession
absolutely, the rule is equally applicable.! Hence the commander may compel private citizens or corporations who receive the benefit of military protection to pay debts actually
due to the deposed sovereignty into the coffers of the conqueror,2 and a receipt for the same would be an acquittance
of the debt; the debtor would not have to pay it again to the
ancient creditor when he returns to power. 3 This is a relaxation from the strict rule of law; for, a money debt being
payable in kind, the debtor is not strictly released by any act
or casualty that does not exhaust the genus or kind.. To obtain the benefit of this modification in the debtor's favor it
is requisite that the amount be actually due. Moreover, the
debtor must be placed under duress by the military authorities
established over him and so compelled to pay the debt; therefore, if he be not resident in the territory occupied, or without
compulsion should pay it nevertheless to the conqueror, in
neither case would the original obligation be cancelled. And
there must be actual payment. Acquittance without payment
will not avail. If to avoid forcible levy the debtor compromises or avails himself of a general proviso in the order for collection, and the transaction be bona fide on his part under a
pressure brought to bear by the dominant authorities, he will
be credited with so much of the indebtedness as he thus
actually liquidates. It is a defence to a second demand to the
extent of the coercion and actual payment.
251. "All rights of military occupation," says Halleck,
"arise from actual possession, and not from constructive con-
l.
S~C.
247
248
the fundamental law to receive it. And elthough such payments may be justified, still nothing can divest them of the
appearance of an unfriendly if not a hostile act. The burden
of proof to show that the payment was bona fide and in accordance with law rests upon the neutral debtor.
252. We have seen that the purchase by a neutral of immovable enemy property confiscated by a military occupant
is liable to be treated as a hostile act by the temporarily vanquished State; and this for the reason that it directly furnishes the conqueror with the means of prosecuting hostilities.
So does the payment of debts due the deposed State furnish
the opposite party such means, and reason will seldom distinguish between the cases; both are unfriendly acts on the
part of the neutral, and may well be considered hostile by the
State whose interests are thereby prejudiced. This being so,
should the vanqui<>hed State be restored to power, she will, of
course, exhaust every resource to compel a repayment of the
debt. The prudent course for the neutral debtor of the deposed government to pursue is to f bide the final t"esults of the
struggle, m?king payment to whoever retains the sovereignty.
The principle here involved is well illustrated hi the Cdse of
the electorate of Hesse Cassel, which grew out of N:.lpoleon's
wars. 1 Mter lena, Napoleon held that little State about a year
under military govemme.nt, and then incorporated it into the
kingdom of Westphalia, which was recognized by the treaties
of Tilsit and SchOnbrunn and the public law of Europe as a
sovereignty for several years. The Elector was restored to his
throne by the treaty of Vienna. While Hesse Cassel formed
part of the kingdom of Westphalia, Count Von Hahn, of the
duchy of Mecklenburg, among many other State debtors, compounded with the King of Westphalia for the payment of a
debt owing to the electorate at the time of its absorption. The
Elector carried away with him and retained in his possession
the instruments containing the written acknowledgments of
the debt. Nevertheless, every formality of legal payment was
I
249
250
252
2,
clause 6.
253
2,
clauses 5, 6.
2.
254
255
256
351.
257
258
190 2 ).
259
188.
2.
Halleck,
260
1/.
Steamship Co..
:10
Wallace, p. 397.
2.
HaUeck,
261
618.
2.
III; 101
U. S., p.
262
2.
264
for which no blame properly attaches to the commander ordering the destruction. All that can be asked of him is that he
will take reasonable precautions to prevent the destruction
of every species of property, the existence or possession of
which can have no influence upon the issues of the war.
This was illustrated when, in -1864, Atlanta, Georgia, was
partially destroyed by the Federal authorities. That city was
of vast importance, both politically and strategically, and when
after the campaign resulting in its capture the general of the
Union Army decided to abandon it and establish his base of
operations on the seaboard, it became necessary to render it as
little valuable to the enemy as possible. To this end the extensive railroad depOts were levelled and burned and the railroads centering thereat were, as far as possible, destroyed.
Some of the buildings connected with the depOts had been converted by the enemy into magazines, where were stored quantit'es of ammunition. During- the burning of this property,
which was strictly warranted under the laws of war, the conflagration extended to many buildings, and much property
other than that which had been ordered to be destroyed. 1
267. But the destruction of public property by the Union
Army was not always accompanied by such results. Mterwards, while the 11 oops were, pursuant to the plan adopted
for a change of base, occupying Milledgeville, Georgia, the
arsenal there and its contents were completely destroyed, together with such public buildings as could be easily converted
to hostile uses. But little or no damage was done to private
property, even some extensive mills being spared, together
with several thousand bales of cotton, although these might
have proved of great service to the enemy, while private
property was carefully preserved from destruction. The same
course was pursued by General Wilson at Selma, Alabama.
That place was an important military depOt. There were
located an arsenal, a navy-yard, nitre works, and extensive
foundries for artillery of all sizes, shot and shell. When the
I.
2,
p.
177.
266
Black, p. 674.
267
the people it was necessary that the occupation should have the
feature of permanency as contradistinguished from the mere
rules of a marching army, over-running, devastating, perhaps,
and then leaving the country behind. And whatever of kindness was shown peaceful inhabitants and their property, the
interest of the national Government, the success of her armies,
were always regarded as paramount to all other considerations.
271. The military commander has no authority permanently to alienate property of his government that has come
into his possession by virtue of military occupation. Such
alienation is an act of sovereignty, only to be authorized by
that department of his government which, under the Constitution, is vested with this, which is among the highest powers
of prerogative. In the United States the case, in spirit at
least, is covered by the ninth article of war. The inhibition
applies to both real and personal property; for instance, lands
or moneys; indeed, arJ.~ property whatsoever. The only exception that would be allowed is the appropriation of moneys
captured as booty or othe{wise, and which necessity demands
shall be used to procure supplies for the troops. 1
I. Opinions Att'y-Gen., Vol.
497. 625, 648.
22,
CHAPTER XIL
TRAD!:t WITH OccUPI!:tD TERRITORY.
272. One of the most important incidents of military government is the regulation of trade with the subjugated district.
The occupying State has an unquestioned right to regulate
commercial intercourse with conquered territory. It may
be absolutely prohibited, or permitted to be unrestricted, or
such limitations may be imposed thereon as either policy or a
proper attention to military measures may justify. While
the victor maintains exclusive possession of the territory his
title is valid. Therefore, the citizens of no other nation have
a right to enter it without the permission of the dominant
power. 1 Much less can they claim an unrestricted right to
trade there.
273. As between parties belligerent the rule is that, except
when specifically sanctioned by their respective governments,
all commercial intercourse with the enemy or his allies is
prohibited. "The law," said Chancellor Kent, "has put the
sting of disability into every kind of voluntary communication
and contact with an enemy which is made without the special
permission of the government. There is wisdom and policy,
patriotism and safety, in this principle, and every relaxation
of it tends to corrupt the allegiance of the subject and to prolong the calamities of war." 2 Nor is this restriction confined
to trade in the ordinary acceptation of the term; but all communication and intercourse with the enemy are prohibited.
It matters not whether the property be bought or sold or
merely transported and shipped. The contamination of forfeiture is consummated the moment it becomes the object of
I. 9 Howard, p. 615; Bluntscbli, I., Sec. 8; Manning, p. 1670 American
Instructions, Sec 5, clause I. 2. 16 Johnson, 459, 460; 9 Wallace, p. 72.
268
270
9 Wallace. p. 75.
2.
Kent, Vol.
I,
p. 69.
272
2?
2. Duer on In-
273
he has in view is to create a revenue to be used for the prosecution of the war.
This was the course pursued by commanders of United
States forces in Mexico. .As previously mentioned, some of
the seaports in territory militarily occupied were made ports
of eptry, through which commerce was carried on between Mexico and the outside world. Referring to the establi!>hment of
the custom-house at one of the ports of entry so established, the
Supreme Court of the United States said: "The person who
acted in the character of collector in this instance acted as such
under the authority of the military commander, and in obedience to his orders; and the duties he exacted and the regulations he adopted were not those prescribed by law, but by the
President in his character of commander-in-chief. The custom-house was established in the enemy's country. as one of
the weapons of war. It was established, not for the purpose of
giving the people of Tamaulipas the benefits of commerce with
the United States or with other countries, but as a measure of
hostility and as a part of the military operations in Mexico; it
was a mode of exacting contributions from the enemy to support
our army, and intended also to cripple the resources of Mexico
and make it feel the evils and burdens of the war. The duties
required to be paid were regulated with this view and were
nothing more than contributions levied upon the enemy which
the usages of war justify when an army is operating in an
enemy's country." 1
A similar course was pursued on the coast of California during the same war. Pursuant to instructions of the President,
the military governor, who was also commander of the United
States forces in that quarter, established custom-houses at the
principal seaports for the collection of duties on imports. The
tariff thus levied was merely a military contribution, authorized by the laws of war, the duty of collecting which was devolved upon army and navy officers. By the treaty of peace
J.
9 Howard, p. 616.
-18-
274
California was ceded to the United States. As soon as possible after the ratification of this treaty the tariff of duties for
the collf'ction of military contributions ceased, and the revenue
laws and tariff of the United States were substituted in its
place. But California was not, for several months after this,
brought by act of Congress within a collection district under
the revenue laws of the United States, and not until more than
a year after the ratification of the treaty did the collector appointed pursuant to such laws enter upon the discharge of
his duties. In the meantime the duties were collected by
officials appointed by the military commander the same as
when war was flagrant. The Supreme Court held that such
duties were legally collected, not only during the war, but
down to the time the regular collector entered upon his duties,
more than eighteen months after the hostilities ceased. 1
This related to duties on goods, merchandise, etc., imported
from foreign countries into the ports of the nt:wly captured
countries. No question at that time came up regarding importations into said ports from other ports of the United
States, or vice 'Versa. Mterwards, in De Lima 'V. Bidwell,2 it
was raised, and the Supreme Court decided that after the incorporation of Porto Rico into the territory of the United
States duties were not collectible on merchandise coming from
ports of the former to those of the latter until Congress so
determined. Prior to that time and when military government in Porto Rico was exercised on soil foreign to the United
States such duties could be imposed and legally collected.
278. There is in every government some department to
which, by the fundamental laws of the land is entrusted the
determination of the military policy of the State. This department it is which exercises authority in licensing trade
with enemy territory. In Great Britain this power rests with
the crown. 3 In the United States it is vested in Congress.
I. 16 Howard, p. 164; 21 Wallace, p. 87.
2. 182 U. S. Reports, p.
194, Sec. 3. Chaps. 5 and 6, anht. 3. Blackstone, I., pp. 257-60; Wheaton,
Sec. 310; 1 Robinson, p. 199; Manning, p. 168.
275
If Congress does not act in the premises, the Executive Department, to which is entrusted the command and direction
of the armies, can legally authorize whatever commercial 10tercourse comports with the laws of war.! The instances just
cited illustrate this fact. But when Congress has spoken, its
will is supreme and must be obeyed. :ff military commanders
authorize intercourse in derogation of the legislative will, not
only do they lay themselves liable to answer to their government in their official capacities, but no valid rights arise out
of such usurped authority.
The experiences of the Civil War are particularly instructive on this point. It has been seen that the act of July 13,
1861, prohibited commercial intercourse with districts declared
by the President to be in a state of insurrection, with such
exceptions as the President might make and under regulations
established by the Secretary of the Treasury. The districts
in insurrection embraced the whole cotton-producing territory
of the United States. Only by rescuing it from rebel dominion could cotton be procured. Valuable as this commodity
had always been, the war increased its commercial importance
enormously. Every proper means was adapted by the Federal Government to secure as large a supply as possible. With
the hope that it might be successfully cultivated in loyal districts, Congress, in 1862, passed an act for the purchase, undel
the supervision of the Secretary of the Interior, of cotton seed,
stipulating that the purchase should be made from places
where cotton was grown as far north as practicable.
One Hodge seems to have fancied he saw an opportunity
under cover of this act to engage in a lucrative illegal trade
with the enemy. Receiving from the Secretary of the Interior
a permit to procure a cargo of cotton seed within the enemy's
lines in Virginia, he proceeded to load his vessel with merchandise and carry it into insurrectionary territory. It was seized
on the outward voyage by revenue officers of the United
I. H:l.lleck, Sec. 2, Chap. 28; 21 Wallace, p. 87; Hall, p. 510.
276
States and libelled for forfeiture in the District Court of Maryland. The libel was here dismissed and the decree was confirmed on appeal to the circuit court. But upon the case being
carried to the Supreme Court of the United States this decree
was reversed. It was admitted that the act of Congress authorizing the purchase of the cotton seed contemplated the carrying on trade with the prohibited districts. In no other way, as
was well known, could seed be procured. It was not, therefore
the destination of the vessel alone which rendered the voyage
illegal. The respondents claimed very plausibly that the merchandise was for the purpose of paying for the cotton seed,
and tha~ under all the circumstances it was the best and
readiest medium of exchange to be had. But the Supreme
Court brushed the claim aside as a mere colorable pretext.
It pointed to the fact that under the act of'1861 the President
only was authorized to license trade and the Secretary of the
Treasury alone to establish regulations governing it; the act
authorizing the purchase in question did not repeal any part
of the non-intercourse act, and consequently the Secretary of
the Interior was not empowered to authorize the dispatching
a vessel to the prohibited districts, and properly construed
his permit to procure the cargo of cotton seed as not being an
attempt to exercise such unwarranted authority. Yet this
permit, together with a letter of the Secretary of the Navy
commanding Navy officers to respect it, was the only license
the vessel had. It was trading, therefore, in violation of the
act of July 13, 1861, and both vessel and cargo were declared
to be forfeited. This decision shovys with what strictness laws
licensing trade with the enemy are construed by the Supreme
Court; and an interesting feature of this particular case is the
diversity of judicial opinion which characterized its determination-the district and circuit courts taking one view and the
Supreme Court the opposite. 1
So as to the case of the Sea Lion. On February 16, 1863, a
I.
3 Wallace, p. 617.
5 Wallace, p 632.
278
6 Wallace. p.
,52l.
279
12
Statutes at Largf',
281
7 Wallace, p. 551.
282
Orleans, the contract was valid under the law of nations, and
that the military orders then in force authorized and gave
validity to the contract. Judgment going for the plaintiff, it
was reversed on appeal to the Supreme Court of the United
States. The contract was declared to be against public policy
and void. It was remarked that the certificates, even if issued
in good faith, were nullities and could give no immunity,
while in fact they were intended to operate as a means of deluding and defrauding the United States. The military orders
set forth in the record of the case were pronounced unwarranted and void; as the subject-matter was wholly beyond the
sphere of the power and duties of the military authorities.
In the case of McKee 'I). United States,l it appeared that a
loyal citizen, resident of New Orleans when that city and the
immediately surrounding territory were under the military government of the Union, purchased of an agent of the Confederate Treasury Department in western Louisiana, then dominated by the rebels, a large quantity of cotton, the private
property of the agent. Regarding the situation of all people
thus subject to military government the Supreme Court had
remerked that from the time this species of government was
established over them they were clothed with the same rights
of property and were subject to the same inhibitions and disabilities as to commercial intercourse with territory declared
to be in insurrection as the inhabitants of the loyal State. 2 It
was plain, therefore, that McKee's purchase was illegal and
vested no property lights unless the transaction was duly
authorized. There was some evidence, not satisfactory, however, tending to show that he hud the authority of a treasury
agent to trade in insurrectionary territory. And it was conceded that he had permission from the military commander
of the forces of the United States in that department to pass
through the Federal lines into the rebellious region and bring
1. S Wallace, p. 16J. 2. 6 Wallace, p. 5J1; amI see excepting clause,
President's Proclamation, August 16, 1861, 12 Stalutes at Large, p. 1262;
also 2 Wallace, p. 277.
2.
See ibid.
3. Chap. 255, 13
2. Sec. 9. ibid.
286
J. 8 Wallace, p. J8S.
and Lane for bringing out the cotton was pronounced illegal
and without any binding effect upon the Government. .. At
the time this contract purports to have been made," remarked
the court, .. this country was engaged in a war with a formidable enemy, and by a universally recognized principle of public law commercial intercourse between States at war with each
other is interdicted. It needs no special declaration on the
part of the sovereign to accomplish this result, for it follows
from the very nature of war that trading between belligerents
should cease. If commercial intercourse were allowable, it
would oftentimes be used as a color for intercourse of an entirely different character, and in such a case the mischievous
consequences that would ensue can be readily foreseen. But
the rigidity of this rule can be relaxed by the sovereign, and the
laws of war so far suspended as to permit trade with the enemy.
Each State settles for itself its own policy and determines
whether its true interests are better promoted by granting or
withholding licenses to trade with the enemy. It being the
rule, therefore, that business intercourse with the enemy is unlawful unless directly sanctioned, the inquiry arises whether
there was any law of Congress in force at the time that Sanctioned this transaction."
It has been seen that the act of July 2, 1864, Section 8, authorized the purchase, on account of the United States, of
products of the insurrectionary States. Standing by itself, this
language is broad enough to authorize trading of the nature
indicated with the enemy. But the statute must be construed
in connection with other statutes on the same subject and the
legalized practices thereunder. They are in pari materia, and
must be considered together as one system and as explanatory
of each other. 1 Under preceding laws, however, such trade
was absolutely prohibited. The presumption was that, unless
Congress expressly provided to the contrary, this policy was to
be continued. This Congress did not do, and the mere absence .
I.
pp.
20<}-IO.
2fs8
2.
CoD~titution
I.
-19-
I
~o
!
oil.
16 Howard, p. 164.
TRADE WITH 0CCUPIED TBlUUTOBY.
may be taken of the thing in controversy; retaliation, vindictive or amicable, may be practiced; and reprisals may be authorized. 1 These are extreme measures; they border on the
domain of belligerency; but they do not of themselves interrupt private trade.
286. The War of 1812 between the United States and Great
Britain was begun by act of Congress of June 18th of that year. 2
By that act all the inhabitants of the one became technically
enemies of those of the other country. Commercial intercourse
thereafter between them, except under government license,
was illegal. The war with Mexico presented another phase of
the same subject. Not until after battles had been fought was
it announced by act of Congress to the citizens of the United
States that a state of war existed. 3 That hostilities had been in
progress both before and at the date of the passage of that act
did not, however, render illegal commercial transactions between citizens of the respective belligerents before that date,
or subject property embarked therein to condemnation. The
President had not, because war was flagrant, prior to Congressional recognition, indicated the principles upon which it
should be conducted further than by beating the enemy's
armies in the field. That he had, by virtue of his authority
as commander-in-chief, full power to ~onduct hostilities in accordance with the laws of war is not questioned. That under
this power he might have restricted trade with the enemy
until Congress could act in the premises is scarcely open to
doubt. 4 The date of the act of Congress, therefore, was that
which marked the period when commercial intercourse between
the belligerents became illegal.
287. It is thus evident that to interdict trade between "
nations the people must have legal warning that war exists.
That knowledge is generally brought home to them by a declaration to that effect on the part of that branch of the govI. Wheaton, International Law, Sec. 290.
2. Chap. 102, 2 Statutes
at Large, p. 755. 3. May 13, 1846, Chap.' 16, 9 Statutes at Large, p. 9.
4. :z Black, p. 668; 21 Wallace, p. 87; 91 U. S., p. II.
,
292
ernment which under the organic law is entrusted with the decision of the question of war or peace. This department of
government may be either the executive or legislatitre, depending on the Constitution of the State, or the particular
circumstances of the case.
288. Commercial intercourse is the rule among the peoples
of the earth, unrestricted except by treaties or by municipal
laws. It will not be rendered illegal by implications dlawn
from particular and isolated cases of hostile actions which
mayor may not precipitate a state of war. Reason requires
that before the normal state of trade can be interrupted, and
property engaged therein be rendered forfeitable, those who
are interested should, in some unequivocal manner, be informed
that it will no longer be permitted or be allowed only under
partkular conditions, and this Vlew conforms to the practice
of nations, the writings of publicists, and the decisions of
jurists.
The opinion of the Supreme Court of the United States in
Mathews v. McStea is instructive on this point. 1 In that case
a bill of exchange, dated New Orleans, April 23, 1861, in favor
of McStea and payable in one year, was accepted on the day of
its date by the firm of which Mathews was a member. Mathews was a resident of New York and the other members of
the firm were residents of New Orleans. The bill of exchange
being dishonored, and swt against Mathews brought thereon,
the defense was set up that before the acceptance the co-partnership was dissolved by the War of the Rebellion. This
defense was not fustained by the court of common pleas for
the city and county of New York, and its judgment was affirmed by the court of appeals and the judgment of the latter
by the Supreme Court of the United States.
That the Civil War had an existence commencing before that
date was adInitted as an established fact. This, it will be remembered, was determined in the prize cases in which it was
held that the President's proclamation of Apnl 19. 1861, setI. 91
U. S., p. 7.
294
When the President recognized its existence by the proclamation of blockade, April 19, 1861, it then became his dnty as
well as his right to direct how it should be carried on. .. In
the exercise of this right he was at liberty to allow or license
intercourse, and his proclamations, if they did not license it expressly, did, in our opinion, license it by very cogent implications. It is impossible to read them without a conviction
that no interdiction of commercial intercourse except through
the ports of the designated States was intended."
The first was that proclamation of April 15, 1861, calling out
the militia to repossess the forts, places, and property of the
United States seized by the ;nsurgents.l But while this was
to be done it was expressly enjoined that the utmost care he
observed, consistently with these objects, to avoid devastation,
destruction, or interference with property, or disturbance of
peaceful citizens in any part of the country. This proclamation did not proceed upon the principle that the people of the
States where the unlawful combinations existed were to be
treated as public enemies. The forts and public property
which it was here proposed to retake had been seized by
armed forces. Hostilities had commenced, and in the light
of subsequent events it must be considered that a state of war
then existed. Yet the proclamation was not a distinct recognition of an existing state of war. The armed force of the
nation was to be used to wrest the public property from
the hands of those who had formed combinations against the
authority of the United States; but further than this the people were to be treated as friends. Even the blockade was instituted with a view only to the protection of the public peace
and the lives and property of quiet and orderly citizens who
within the insurrectionary States were pursuing their lawful
occupations. Hence the court inferred that the only interference with the business relations of citizens in all parts of the
country contemplated by the proclamation was such as the
I. 12
295
2. 21 Wallace, p. 97.
296
297
298
its power or adhere to the enemy giving him aid and comfort.
In this respect there is no difference in the situations of persons inhabiting the territory militarily occupied. Whether
subjects of the vanquished State or of a neutral power, their
obligations are equally strong to do nothing to prejudice the
interests of the government which the conqueror establishes
over them. And as to all persons who did not reside or were
not found in the territory when it was occupied, whatever
may be their nationality, the conqueror alone determines
upon what terms if at all they shall be permitted either to
enter the occupied district or to hold communication or business relations with the inhabitants thereof. Either to admit
them or to permit the intercourse is a relaxation of the strict
rules of war.
292. There are some exceptions to this rule of commercial
non-intercourse. Halleck confines them to, first, the mere exercise of the rights of humanity, and, second, the trade sanctioned by license issued by proper authority and which has
just been considered. 1 The exceptions to the rule, Wheaton
remarks, far from weakening its force, confirm and strengthen
it. They resolve themselves into cases where the trading waS
with a neutral, or the circumstances were considered as implying a license, or the trading was not consummated until
the enemy had ceased to be such. 2 Kent mentions also the
case of ransom-bills, which are contracts of necessity founded
on a state of war, and from their very nature carry with them
evidence of the fidelity of the parties to their respective governments.8 The first exception mentioned by Halleck is based
upon the principle laid down by Vattel, that when a subject
can neither receive his sovereign's orders nor enjoy his protection he assumes his natural rights and is to provide for his
own safety by any just and honorable means in his power.
Accordingly it was decided that where two British subjects
I, Chap. 21, Sec. 2.
2. Part IV., Sec. 315. 3. Vol. I, p. 68 and
note (a); 7 Peters, p. 593. 4. Book III., Chap. 16, Sec. 264.
299
300
P.316.
2....
2.
Magoon.
301
CHAPTER XIII.
INSURRECTION AGAINST MILITARY GoVERNMENT.
303
304
RESPO:N8DULITY OF OOliMANDEnS.
35
that the mere fact that the inhabitants have taken an oath
under the dictation of the conqueror can impair the right to
rise agil.inst him. As Vattel suggests, the oath is forced upon
them, and they are under no obligations to keep it longer
than self-interest suggests as advisable. They have the right
to rise if they wish, but they must be prepared to abide the
consequences.
298. There are many examples of military insurrections
and of the punishment inflicted on the insurgents, who, as a
rule, have been put down with a fInn hcmd. After the estabNOTlC.-The following extract from general orders issued to the
Prussian army in August, ,870, gives a connected view of the acts of the ,
French population punished by the Germans and of the penalties attached
thereto:
"Military justice i!' established by these presents:
",st.. [t will be applicable to the whole extent of French territory occupied by German troops in engagements tending to compromise the security of those troops, do them injury, or give assistance to an enemy.
"Military jurisdiction will be regarded as in force and as proclaimed for
the whole extent of a canton as soon as it is published in anyone of the
places belonging to it.
"2d. All persons who do not make part of the French army and who
cannot establish their standing, as soldiers by outward indication, and
who"(a) Serve the enemy as spies;
"(b) Mislead German troops under pretense of guides;
"(c) Kill, wound, or pillage persons belonging to the German army or
making part of their train;
"(d) Destroy bridges or canals, damage telegraph lines or railways,
render roads impracticable, bum stores (ammunition), provisions, or the
quarters of the troops;
"(e) Take arms against the German troops,-shall be punished by
death.
"In every case the officer ordering the trial shall appoint a military commission intrusted with investigating the matter, and pronounce sentence.
The councils of war can condemn to no other punishment but that of
death. Their sent,.nces shall be immediately t'xecuted.
"3d. The communes to which the culprits belong, as well as tho!le
communes whose territory has been the scene of the criminal action, shaIl
be liable in every case to a fine equal to the sum total of their land tax."
(Hall, International Law, pp. 433-34, note.)
-If-
306
L.A."'.
--~
307
308
1.
309
2.
310
against United States authority and contrasts it with themagnanimous spirit with which it was met, a new lustre will
be thrown upon its pages. But it will be a lustre of sombre
hue, as the light on those events shines through the blood of
so many of America's bravest and fairest youth, whose sacrifice
was necessary in order that this generous policy of the Government might triumph. For years it was enough that a.
native join with the Americans in an effort to save something
from the all-pervading wreck and rehabilitate society and
business for him to be constantly menaced by the assassin's
knife and often to fall under its concealed blow. And yet
such was the long-suffering of the National Government that
neither the constant and boastful violations of the laws of wal
by the Filipinos, nor the course of assassination toward:
friendly natives for deterrent effect, could distract attention.
for one moment from the pole-star upon which those distant
islands were being steered-and which was to secure to their
people a political system in which self-government would bf
enjoyed to the greatest degree they were capable of exercisiny
CHAPTER
XIV.
305. The powers of command&s enforcing military government are derived from and are limited by the laws of war. In
this regard it matters not whether the territory governed be
foreign or that of rebels treated as belligerents. In the exercise of his authority under the laws of war, however, the com
mander is subject to the control of his military superiors,
while both he and they are amenable to and governed by the
supreme power in the State. In case of civil war th~ course
of the legitimate government will be determined by considerations of policy. It is not bound to treat the rebels as though
they were subjects of a foreign power-in other words, concede
them belligerent rights. Still, in modern times, it is the usual
practice in civilized governments, attacked by organized and
formidable rebellion, to exercise and concede those rights. 1
306. If the military occupation be of foreign territory, there
will, as a rule, be no reason for complicating the governmental
machinery there with powers or functions which are not purely
military. The times are turbulent; war lays its hand heavily
on all within the field of operations. Society amidst such
scenes is quickly reduced to its fundamental elements-a people
asking only to be governed and protected in person and property, and a ruling power of sufficient vigor and strength to afford that protf'ction. For such a condition of soc1t'ty th: indispensable demt'nts of govt>.rnment aTe, or should be, swiftnc,::s
of action, impartiality in meting out ju:>tice how stern soever ;t\
be, and overwhelming force. These qualities attach pecu1iatly
to a government of military power conducted alone by military
officers. Whatever of civil government is maintained is authOlI,
Chase's Decisions, p.
141.
3 11
..
#. . .
3I 2
~.
..
y. .' '".::1C.
,RESPONSffiILITY OF COMMANDERS.
313
314
RESPONsmILITY OF OOlOl.ANDERS.
315
its essential features, is far from being the mer~ will of the commanding general to be enforced by him without responsibility,
either directly or through the medium of subordinates who
themselves are answerable only to that commander. His
responsibility is both military and civil; the form~ complete,
the latter qualified by circumstances.
3 11. First, the responsibilitr to military superiors extends
wherever commanders may go. How extensive soever may be
their operations, how far soever conducted from the territory
of their own government, they, and of course their subordinates
as well, are never independent of that authority which sent
them forth. In monarchical governments the king OT emperor is the fountain of military honor, the source of military
power, the dispenser of military justice. "The king," says
Blackstone, "is considered as the generalissimo, or the first in
military command within the kingdom. The great need of
society is to protect the weakness of indhiduals by the united
strength of the community, and the principal use of government is to direct that united strength in the best and most
effectual manner to answer the end proposed. Monarchical
government is allowed to be the fittest of any for this purpose.
It follows, therefore, from the very end of its institution, that
in a monarchy the military power must be trusted in the hands
of the prince." 1 Without joining in this eulogium of a system
of government to which the great common-law commentatoT
was naturally so partial, it may be observed with truth and
candor that the repository of military command, emolument or
preferment is, under all permanent governments, equally as
with the monarchical, in the hands of the chief executive.
312. In republics, of which the United States may be taken
as a representative, the president, as commander-in-chief of
the military forces of the nation, is the director of its military power on land and sea. Upon him devolves the duty
of conducting campaigns. To do this successfully he must
J
Book I., p.
262
316
have the cheerful support of all subordinate military commandeIs. In his hands must be entrusted the necessary
coercive power to command that support, even though this
involves the adoption of summary measures. In him is vested
authority to call all officers to account, whether they be directing armies, or presiding over territory wrested from the enemy,
or their duties are a combination of these. If this were not
50, they might. defy him on the most critical occasions.
This,
however, they may not do. Governments republican in form
no more than monarchies are so weak that the assembling of
armies and the holding in subjection conquered territory will
throw their vital members out of joint. It is at such times less
than any other that the authority of the executive may be
brought into contempt. Accordingly, in time of war the
president is vested with the power of summary dismissal of
officers, than which no more effectual instrumentality could be
devised for the maintenance of proper discipline. From the
president downwards the chain of subordination extends unbroken to the extremities of the military system, binding the
parts thereof into a homogeneous, compact whole. It is this
alone which renders the success of. military measures practicable. This is discipline, which is equally indispensable,
whether invoked amidst the clash of arms or the quieter yet
onerous task of governing firmly yet equitably under the laws
of war a district subjected to the rule of a conqueror.
313. It is true that to the subjugated people the conqueror
is not under legal responsibility for his conduct. He is, however, under obligations to keep inviolate the implied covenant
with them that, so long as they do not take sides either openly
or covertly with his enemy, he will protect them so far as the
exigencies of the military service will permit in their rights of
person and propert}.
314. Although members of the invading army are not and
cannot be made answerable before either the courts or other
local authorities, the legality of their acts may become matter
for judicial determination as between citizens, residents of the
RESPONSIBILITY OF OOMMANDERS.
31 7
:2.
318
RESPONsmILITY OP OO)()U.NDEBS.
102.
2.
3. Com-
320
both bona fide neutrals who preserved this character &crUpulously and also subjects of the dominant State residing by its
authority in territory under military government, military
commanders in the occupied district may be held responsible
before the civil tribunals of their own country fOT breaches of
contract and also for torts. As to contracts, the well-known
distinction between public and private agents in the matter
of personal responsibility will not be lost sight of. If an agent
on behalf of government make a contract and describe himself
as such, he is not personally bound, even if the terms of the
contract be such as might in a case of a private nature involve
him in a personal obligation. The reason of the distinction is
that it is not to be presumed that a public agent meant to bind
himself individually for the government; and the party who
deals with him in that character is justly supposed to rely
upon the good faith and undonbted ability of the government.
But the agent in behalf of the public may still bind himself
by an express agreement, and the distinction terminates in a
question of evidence. The inquiry in all the cases is, to whom
was the credit, in the contemplation of the parties, intended
to be given? 1 As to actions ex contractu, therefore, it may be
assumed that the naked right will seldom if ever find practical
illustration. Government agents are not likely to be so neglectful of their own interests as to engage in transactions
on behalf of the public which will involve them in personal
liabilities.
318. With regard to actions ex delicto the case is different.
The liability to incur legal responsibility of this nature by the
military is much greater. The conditions under which military
government is enforced are not those best calculated to secure
a nice adjustment of private rights. Public interests must first
be attended to. Nothing which places in jeopardy the success
of military operati9ns is tolerated. The prosecution of the war
to a happy issne is the object of paramount importance. All
I. Kent, 2, p. 633; 5 Bamewall and Alderson's Rep., p. 34; Bouvier,
Dictionary, Vol. I, p. 137.
RESPONsmILITY OF OOMMANDERS.
other interests give way to that consideration. These are familiar principles. Yet they do not mean license; which means
the reckless disregard of the rights of private parties who, pur5uant to governmental authority, and therefore in a proper
manner, are found together with their property in enemy
territory, under military government.
The law as laid down in Mitchell 'lJ. Harmony by the Supreme Court of the United States is decisive as to the responsibility of military officers for torts committed in enemy territory
against the per50ns and pt"Operty of subjects either permanently living or temporarily there under proper authority. 1 To
properly understand this case it is necessary that all the circumstances under which it arose should be' taken account of.
When war had been determined on with Mexico, the United
States Government resolved to penetrate the enemy's country
by three lines. On the left, General Taylor was to move from
the lower Rio Grande; in the center, General Wool to move
into the State of Chihuahua, Mexico, from San Antonio,
Texas; while on the right, General Kearney invaded California
by way of New Mexico. Having reached Santa Fe and received the submission of New Mexico, the latter general detached a column under command of Colonel Doniphan, First
Missouri Volunteers, to penetrate into the State of Chihuahua
in such a manner as to make a diversion in Wool's favor. Accompanying Doniphan's command was the 2d Missouri Volunteers, commanded by Lieutenant-Colonel Mitchell, the same
who was subsequently the plaintiff in error in the case before
the Supreme Court. The enemy was met on the way, but defeated December 21, 1846, and finally Doniphan reached and
took possession of Fort San Eleasario at EI Paso del Norte on
the upper Rio Grande. Here the commander of the expedition
first heard of the failure of the center column to reach Chihuahua. It became then a grave question what course should be
pursued. In every direction was enemy country, and either
Howard, p.
-21-
I. 13
115
et seq.
322
RESPONSmILITY OF (lOlOlANDKU.
324
MILITARY GOVERNMENT
.urn
MARTIAL LAW.
Blatchford, p. 549.
RESPONsmILITY OF OOlDU.NDERS.
326
tary officer would be a trespasser, and the liability would attach at the instant of seizure; fourth, if the superior officer who
gives the order for seizute is not justified, the subordinate who
executes it will not be.
In delivering the decision of the court Mr. Justice Nelson
said: . I have no doubt of the right of a military officer in case
of extreme necessity, for the safety of the Government and of
the Army, to take private property for public use. The officer
in command of an army upon its march, if it were in danger
from a public enemy, would have the right to seize the property of 2. citizen and use it to fortify himself against assault,
while the danger existed and was impending, and ordinarily the
seizer would not be a trespasser. The safety of the country is
paramount, and the rights of individuals must yield in case of
necessity. * * * There was no evidence here of an impending peril to be met and overcome by the public force, but the
goods were taken for a different purpose."
On appeal to the Supreme Court of the United States the
judgment of the circuit court was affirmed, the decision being
delivered by the chief justice. 1 There are, it was observed,
without doubt occasions in which private property may lawfully be taken possession of or destroyed to prevent it from
falling into the hands of the enemy, and also where a military
officer charged with a public duty may impress private property
into-the public service, or take it for public use. The court were
clearly of opinion that in all these cases the danger must be
immediate or the necessity urgent for the public service, such
as did not admit of delay, and where the action of the civil
authority would be too late in providing the means which the
occasion called for. It is impossible to define the particular
circumstances of danger or necessity in which this power may
be lawfully exercised. Every case must depend upon its own
circumstances. It is the emergency that gives the right, and
the emergency must be shown to exist before the taking can
I.
Mitchell v. Harmony,
13
Howard. p. liS.
100
U. S., p.
166.
328
RESPON8mILITY OF OOlDlANDEB8.
330
RESPONsmILITY OF OOlil:MANDEBS.
33 1
332
RESPONSIBILITY OF COMMANDERS.
333
334
2. 10
Opinions, p.
21.
335
was done, only in this instance the military officer was not considered a trespasser. "It is not denied," says the AttorneyGeneral, "by anybody that the facts make out a strong case
against the Government for compensation for these losses, for it
is evident that the order of General Johnson and the military
control established and maintained by him over this train,
which we have seen was the cause of this loss, were the wise
and proper precautions of an officer to protect his own force
and prevent his enemy from being strengthened." 1
319. Without remedial legislation the position of both
property-owners and military officers in these and all similar
cases was one of great hardship, calculated to work injustice.
The former had either to seek. redress in damages through the
courts or tum to Congress for compensation-the first involving
all the delays and expenses incident to making out a case of
trespass under the strict rules of -law; the second, the at least
equal delay and expense attendant upon securing legislative
aid. To the officer it meant the annoyance and expense of a
civil suit, and ultimately, perhaps, being held liable, because
at the trial he could not justify measures taken in the field by
those technical rules which were intended only for a forum
erected for determining causes arising under widely different
circumstances.
320. Section 2 of the act of March 3, 1849, remedied this difficulty, at least partially. The provisions of this law extended
in application to horses, mules, oxen, wagons, carts, boats,
sleighs, or harness belonging to private citizens, and provided
for compensation to the owners; (I), where the property was
captured or destroyed by the enemy; (2), where abandoned
or destroyed by order of the commander; (3), where the loss resulted from the failure of the Government to furnish forage,
and (4), where the loss resulted from unavoidable accident; but
in all these cases it was essential that the property should have
been in the military service of the United States either by imI. 10
Opinions, PP.
22, 23.
336
Chap. 78.
2. 10
Statutes at Large, p.
12.
3.
13
Wallace, p.
136.
RESPONsmILITY OF OOMllANDEBS.
337
-22-
338
323. "Wherever," said the Supreme Court of Massachusetts, "the law vests in an officer or magistrate a right of judgment and gives him a discretion to determine the facts on which
such judgment is to be based, he necessarily exercises within the
limits of his jurisdiction a judicial authority. So long as he
acts within the fair scope of his authority he is clothed with all
the rights and immunities which appertain to judicial tribunals
in the discharge of their appropriate functions. Of these none
is better settled than the wise and salutary rule of law by
which all magistrates and officers, even when exercising a
special and limited jurisdiction, are exempt from liability for
their judgments, or acts done in pursuance of them, if they do
not exceed their authority, although the conclusions to which
they arrive are false and erroneous. The grounds of their judgments cannot be inquired into, nor can they be held responsible therefor in a civil action.! This protection and immunity
are essential in order that the administration of justice and the
discharge of important public duties may be impartial, independent, and uninfluenced by fear of consequences. And they
are the necessary result of the nature of judicial power. It
would be most unreasonable and unjust to hold a magistrate
Hable for the lawful and honest exercise of that judgment and
discretion with which the law invests him, and which he was
bound to use in the discharge of his official duties. Nor would
there be any safeguard or security to the magistrate or other
officer against liability, however careful and discreet he may be
in exercising his authority, if his judgments were to be examined into and revised in ulterior proceedings against him in
the light of subsequent events, upon new evidence, and with
different means of forming conclusions from those upon which
he was required to act in the performance of his duty. Such
an ex post facto judgment might be more sound and wise, but
it would not be a just or proper standard by which to try the
opinions and conduct of an officer acting at a different time and
1. 2 Gray, pp. 120, 410; 12 Howard, p. 390; 7 Howard, p.89;
1 Abbott, pp. 212-245; 12 Wheaton, p. 19; 12 Peters, p. 516.
-~------~-----------------------
RESPONSIBILITY OF COMMA.NDERS.
.339
5 Gray (Mass.), p.
121
et seq.
340
REBl'ONSmILITY OF COMMANDERS.
34 1
I.
Riggs
7/.
2. II
Johnson, N. Y
342
2.
13 Wallace, p. 335.
RESPONSIBILI'l'Y OF COMMANDERS.
343
344
that they will be unmindful of the fact? Will its tendency not
be to make commanders timid at the very time they should act
promptly and boldly? Why will it not be? Are commanders
less than judges, human beings? Have feelings of patriotism,
the promptings of virtue, and spirit of self-sacrifice driven from
their hearts and minds all feelings of self-interest? To some
extent this is true; the career of arms, as is well known, is not
the path of emolument. But soldiers instinctively dread the
meshes of the civil law whose sinuosities they are not accustomed to, do not understand, and to become involved in which
it is likely to prove disastrous to them. The feeling that they
may be called civilly to account for their actions must in the
nature of things have a deterrent effect upon them; and while
this may operate beneficially in some instances by protecting
the citizen, it may, on the other hand, be the cause of sacrificing
great governmental interests, those in which not only the rights
of individuals, but the well-being of society itself is involved,
because under such liabilities to civil suits officers may hesitLte
to assume the responsibility of acting a decisive part on pressing
and important occasions.
328. It is not contended that military officers enforcing military government should be absolutely irresponsible before the
civil court of their own country for their conduct toward subjects 2.nd neutrals, and answerable only to their militaIy superiors; even judges are subject to impeachment; but what is contended for is this, that the principle being recognized that public
policy is subserved by granting immunity from prosecution
for their official acts to certain governmental functionaries,
uotably the members of the judiciary, the same 01 similol consideratioD3 prompt to a libel al rule regarding civil liability of
military officers under the circumstances mentioned. A slight
attention to the surroundings' of the two classes of officers,
judges and military, will make this plain. The former attend
to their duties amidst scenes of peace, and only when they are
driven from theh seats by violence which the civil power can
1I0t control are the military called upon to act in their stead;
RESPONSIBILITY OF COMMANDERS.
345
346
6 Coldwell, p.
6~6.
RESPONsmIUTY OF OOH1IANDERS.
347
save the lives of his soldiers and insure the success of his campaign; and if in good faith he deems the taking necessary he
cannot be required to weigh nicely in the balances against these
great objects, the value of a load of wood or of a bushel of com.
The responsibility and the discretion rest with the commander,
and when he in good faith assumes the one and exercises the
other, a civil court cannot reverse his decisions, but must presume that the discretion was properly exercised."
It is true that the plaintiff in this case was, when this seizure
was made, a citizen of Tennessee-at the time in a state of insurrection-and he was therefore technically in the position of
a public enemy; but at the time of the suit he was a citizen
of the United States, clothed with all his rights as such, and
the court was administering the law under the Constitution
of the United States. The decision was intended to and did
formulate the law, as understood by the court, applicable to
military officers under the circumstancs assumed, and bespeaks an enlarged discretion amidst such surroundings.
330. The decision heretofore referred to of the Supreme
Court of the United States, reaffirming that of the supreme judicial tribunal of Mississippi in the case of Ford "V. Surget, confirms in substance the principles set forth in the Tennessee
Supreme Court decision just cited. 1 The act of the Confederate Government, March 6, 1862, made it the duty of military
commanders to destroy all cotton, tobacco, or other property
whenever, in their judgment, it should be about to fall into the
hands of the enemy. The Supreme Court said that this act conferred upon Omfederate military officers no aUlhorit:y other
than, consistently with the laws and usages of war, they might
have exercised without such previous sanction. They had the
right, as an act of war, to destroy private property within the
lines of insurrection belonging to those who were directly or
indirt"Ctly cooperating therein against the authority of the
United States if such destruction seemed to be required by impending necessity for the purpose of retarding the advance or
t.
97 U. S, p. 596
348
p.
121;
RESPONSIBILITY OF COMMANDERS.
349
350
CHAPTER XV.
M IUTARY
GoVERNMENT-TRIBUN ALS.
See Appendix I.
352
less savage warfare, but did not do it. J It was claimed by the
Spanish commanders in that quarter, and was probably true,
that the weakness of their forces precluded the possibility of
their redeeming the pledges of their Government in this behalf.
To chastise these hostiles, consisting of Seminole Indians,
negroes, and renegade whites, to protect the inhabitants of that
exposed frontier and insure future peace on the bordeI'll. the
President of the United States ordered General Jackson, commanding the Division of the South, to take the field. If necessary to accomplish these objects, the General was instructed to
pass the boundary line between the territories of the United
States and Florida, and conduct the war on Spanish soil. This
was a measure of necessity. In carrying it out the General
necessarily judged of the means to be made use of. Having
penetrated into the interior of Florida, in pursuance of this
pIau, and taken possession of the Spanish fort, St. Mark's, he
issued at that point, on April 26, 1818, a general order detailing
a "special court," composed of a president, twelve members,
and a recorder, for the purpose of investigating certain allegations against civilians captured in the Indian country, to the
effect that they were or had been stirring up (he savages against
the people of the United States, aiding, abetting, and comforting them, and supplying them with means of carrying on the
war. The court was directed to make a record of all we documents and testimony in the several cases, of their opinion as to
the guilt or innocence of the prisoners, and what punishment, if
any, should be inflicted. Both persons tried before this court
were British subjects. Both were found guilty of the crimes
alleged against them, with certain exceptions. Arbuthnot was
sentenced to be hanged, and Arnbrister to be shot to death;
but the court reconsidered the latter sentence and changed it
to fifty lashes. The proceedings and findings and first sentences were approved; the second sentence in Arnbrister's case
was disapproved. Both prisoners suffered the death penalty. 2
I. 8 Statutes at Large, p.
Affairs, Vol. I, p. 734.
140-
2.
MILITARY GOVERNYENT-'.rRJBUNALS.
353
This transaction gave rise to much controversy. The authority of nhe commanding general to convene the court, and
particularly his authority under the circumstances to carry
into execution the first sentence imposed in the case of Ambrister, was questioned.
It is not perceived how these objections can be maintained.
As to the first, it is to be observed that the officer convening
the court was at the time engaged in carrying on war. In invading Spanish territory he was acting under and pursuant to
the orders of the President. That Spain might have deemed
this a just cause of war may be conceded; but no exception
rightly can be taken to the actions of the commander in carrying out those orders. The Government of the United States
alone was responsible for this invasion of the soil of a friendly
power. In carrying into execution the views of the Government the American general in effect conquered the whole of
west Florida. This was necessary in order that citizens of the
United States might be protected against savages and their
allies who had made that territory a place of arms, whence
they issued on their incursions of desolation, and to which they
had been accustomed to retreat as a secure place of refuge before the American forces. Although war had not formally
been declared against Spain, a state of war against her dependency in fact existed. The President, acting within his constitutional powers, had determined how it should be conducted. 1
General Jackson, it is conceived, was empowered to exercise all
the belligerent rights of a commander operating in a foreign
country. Among these is the right to execute summarily those
persons who have been guilty of a violation of the laws of war;
or if he deems it advisable, to convene a war court for the t1 ial
of such cases. This authority the General exercised. The
"special court" for the trial of Arbuthnot and Ambrister was
a war court, such as would now be known as a military commission. The General did not find his aUthority to convene it
in the statutory law, but in the laws of war.
I. :2
Black, p. 670.
-II-
354
As to the second objection: Premising that the commanding general had authority summarily to execute persons who
were guilty, on the theatre of war, of the crimes which Arbuthnot and Ambrister had perpetrated; that the "special court"
was asked for its opinion only both as to guilt and adequate
unishment, General Jackson maintained that this "opinion"
could not divest him of his original authority to proceed summarily, which in effect he did by directing that Ambrister be
executed. Grant the premises, and the conclusion follows.
Has, then, a military commander, conducting a campaign in
enemy country, authority, under the laws of war and without
the interposition of a court, summarily to punish those who,
making peaceable foreign territory a point of support, send forth
Indians and more savage negroes to make war upon peaceable
citizens of the United States? Such acts are those of freebooters, and the actors, when appreh~nded, can expect no
quarter. Arbuthnot and Ambrister were caught on foreign
soil, red-handed from their nefarious work. It is submitted
that the American general had the power summarily to execute them. It should be cautiously exercised, but this consideration does not impair the power itself. The law of April 10,
r806, by rendering the interposition of a court-martial necessary in the case of spies, to that extent only limited a previously
existing plenary power.! Nor is it believed that either the old
or the existing statute has any application to savages, their
aiders or abettors. 2 Be that as it may, no statute existed at
the time General Jackson exercised this authority which impaired his powers under the laws of war, except as to spies,
when he was operating in enemy country. It is believed,
therefore, that in directing the execution of Ambrister he did
not transcend chose powers. 3
~35. TIe action of General Scott in Mexico, and "i \"ar:ous
c lmmar.ders in dish iets recovered from rebels during th<> rid'
War, in appointing military commissions, was but an exercise
J. (Section 2) Vol. 2, p. 371. Statutes at Large.
3. American Instructions. Sec. 4. clauses 2 and 4.
2.
Sec. 1343. R. S,
MILITARY GOVERNMENT-TRIBUNALB.
355
356
ence in the service, are more competent judges than commonlaw courtS. 1
337. The commander who appoints military commissions
does so in every case under a responsibility to his own government. He may be held answerable in certain cases likewise to
those whom he sends before such tribunals in cases giving rise
to transitory actions. It is true that members of an invading
army are, as respects the conquered people, subject to the laws
of war, and are responsible only to their own government and
the tribunals by which those laws ate administered. 2 But, as
before pointed out, it is not doubted that transitory actions
accruing to others than the conquered are not necessarily defeated by the fact that the cause which originated them arose
under militat y government.
338. Members of commio;siuns or other militat y govel mnent
tribunals are not civilly liable (if the convening Older was authotized either by statute or the laws of war), if the person and
subject-matter rightfully be within lheir jurisdiction and me
sentence or decree one which under the same laws is authorized.
It is true that such tribunals do not exercise any portbn of the
judicial power of the United Staces. But it does not follow that
the authority exercised by them is not in its nature judicial.
There are many other courts exercising aUl:hority under Federal
laws which form no part of the Federal judiciary. Referring
to the judges of the superior courts of the Territory of Florida,
the Supreme Court of the United States remarked: "They
hold their offices for four years; these courts then are not constitutional courts in which the judicial power conferred by the
Constitution on the general Government can be deposited.
They are incapable of receiving it. They are legislative courts
created in virtue of the general right of sovereignty which exists in the Government." 3 Yet such courts exercise judicial
authority. They are as much judicial tribunals as any in the
I. JI6 U. S., p. 178. 2.100 U. S., p. 166; 97 U. S., pp. 60-63; American Instructions, Sec. 2, clause 17. 3. I Peters, p. 546.
MILITARY GOVERNMENT-TRIBUNALS.
357
35 8
Douglass, p. 594.
MILITARY OOVERNMENT-TRIBUNALS.
359
J., in this case reviews all the authorities and precedents, and
Lord Mansfield gave his assent to all it contained. Subsequently Lord Mansfield himself delivered an opinion upon the
same questicn, in which he asserted thf' 'lame dJCtrme with r~
newed emphasis. 1 The authOl it y of Lhest" cases has never been
doubted. 2 "Military forcf's," said the Supreme Court, "act
in the fi~d according to Lhe laws of war, upon appearances,
not upon testimony; they occupy on land the same position
chat naval forces do at sea." 3
341. The jurisdiction of military commissions, as to persons,
extends to all within territory under miliLary government.
The principle of exterritoriality, which absolves foreign ministers from responsibility before local tribunals, has then> '10 application.. This follows from the nature of the occupation.
The country is held by right of conquest, under which circumstances the laws of war give the commander or his government
the absolute right to prescribe the terms upon whicli all persons whomsoever shall eicher go from or enter the conquered
district. 6
342. Military tribunals, convened under the laws of war in
territory subject to military government, may, a( "(he pleasure
of the convening authority, be given cognizance of all causes
not brought within the jurisdiction of a particular tribunal by
some statute of the conquering State. 6 The name by which
the cribunals may be designated cannot affect their jut isdiction.
The trial of cause.> concerning inhabitants of the l'onquered di5trict bef01e the lucal tribunals is maner wholly of comil:y or
convenience, nOl: obligatory on the conquef<jr. Should he permit it, this fact does not deprive him of the right to recur at will
to the sterner rules of conquest. Subj~t [0 the statu lory limLinds 7J. Rodney, note to I.e Caux 7J. Eden. p. 612. 2. 92 U. S., P
3. Ibid., p. 196. 4. Halleck, Chap. 9. Sec. 12; American Instructions, Sec. 5, clause 2; 92 U. S., p. 520; 9 How., p. 615. 5. See authori
ties last cited; 2 Wallace, p. 275. 6. 22 Wallace, p. 297; 20 Wallace, p.
387; 97 U. S., p. 509; 20 Howard, p. 178; Act March 3. I H63. Chap.
75; Scott's Autobiography, pp. 541,575.
I,
197.
360
CHAPTER XVI.
WHltN
344. Such being the nature, the scope, and incidents of military government, the question as to when it ceases becomes
important. And as this affects all concerned, conquerors and
conquered alike, it is necessary that it be certainly determined.
345. The time when military government is discontinued,
as well as the attending incidents thereof, depends on circumstances. The conqueror may be expelled, he may permanently
hold the territory, or he may surrender it under terms embodied in treaty stipulations. In the first case the restored
government will, upon resuming control, instantly re-establish
the former order of things, at least so far as this may be found
practicable amidst warlike operations. The rule of the conqueror would cease directly upon his expulsion, and the people
at once resume their original relations to the government of
their permanent allegiance. Still, when the conqueror ruled,
his government, though founded on military force, was a de
facto government. To it those who received its protection
gave their obedience, and whatever measures were taken under
its authority pursuant to the laws of war, affecting the people
in either their rights of person or property, should receive the
sanction of the old and now rehabilitated government. 1
346. Should the conqueror permanently acquire the country, military rule would of necessity be maintained until such
time as the civil could be established upon principles which
comported with the interests and inclinations of the dominant
power. When war ceases the laws of war no longer govern, for
the same reasons that they did before-namely, that a state of
war has its own laws; and now as peace has returned, the laws of
I. 4 Wheaton, p. 253; 92 U. S., p. 193; Bluntschli, I., Sees. 199,210.
~61
362
p. 193
2. 92 U. S.~
363
16 Howard, p. 190.
364
Howard, p.
177.
2.
18.
365
unless by treaty stipulation he has pledged his iaith to a different course, the history of the world will not sustain the assertion. A subjugated people must abide by the will of those
who have reduced them to submission. Policy, the promptings
of humanity, or perhaps measures of necessity, determine the
conquetor's conduct towards them. That of right they enjoy
the privileges and immunities which were theirs under the
former but now displaced government cannot be maintained,
unless the conqueror has conceded this. The course pursued
by the Government of the United States towards the provinces
wrested from Mexico would, if considered alone, perhaps warrant the assertions of the author quoted. That, however,
would be entirely too narrow a view to take of the subject. It
was the policy of the United States to \\-in over those inhabiting the subjugated distl iets in every possible manner. They
were comparatively few in number, and while their conduct
had been signalized by some conspicuous acts of perfidy, they
were not actuated by a formidable spirit of resistance, and kindness toward them seemed both safe and politic. Repressive
measures of a severe chf'.r~('t('r were not found to be generally
nece!>sat y undo such circumstanct>s, and haste was made after
the war to restore the vcoplc to all their ancient civil rights
which were found to be compatible with the institutions of the
govetnment of their new and permanent allegiance.
350. Without recalling instances ftom history to establish
the propositicn, almost axiomatic, that a conquered people retain only those rights which accord with the policy of the
conqueror to concede, very recent times furnish two conspicuous illustrations of its truthfulness. They are the suppression of the Rebelliun in the United States in 1865, and (he
conquest of Alsace-Lorraine in 1870-71. The vigor of the
military rule eslablished in the latter instance and the remodeling of ancient institutions, that thereby might permanently
bt: securt>d to Germany what her arms had won, do but evince
the earnestness of purpose with which these measures were
adopted, and emphasize the severe natule of the laws of con-
366
be
367
368
"
369
that of military occupation. In the Philippines, a civil government, organized by the Executive under authority of Congress, succeeded the military. In South Africa, British military
rule ceased over the annexed republics when a satisfactory
condition of affairs looking to civil rule was established there.
-%4-
...1
PART II.
MARTIAJ.J LAW.
CHAPTER XVI I.
MARTIAL LAW DISTINGUISHED FROM MILITARY LAW,
ci~il ,f
2,
pp. 954-55.
372
pure and simple; when established as incident to the governor proclaiming a part of the State to be in insurrection or
rebellion, it carries many military features growing out of the
fact that the condition of affairs in the community is greatly
assimilated to that of war; when brought into existence because of a local reign of lawlessness and violence which has
dethroned or paralyzed the civil administration, it may be
regarded as an extension and development of the police power.
Its characteristics at anyone time may be a combination of
these.
360. The term is sometimes, though erroneously, used as
synonymous with military law. While martial law, however, usually is unwritten, the military law of the land is found
in the statute-books and the customs of the service.
361. It is from England that the United States derived
both of these terms, as it has the common law, and the fundamental principes of its jurisprudence. In the former country
the term "martial law" has, in the progress of time, changed its
signification. From earliest periods of which we have authentic record the sovereigns of England, when engaged in wars,
found regulations for the government of their troops necessary.
These regulations were what the kings chose to make them.
They constituted the "martial law" of those early days, and
were properly applicable only to soldiers while embodied as
such, and to retainers of the camp; just as in the United
States the militia of the several States, when called into the
service of the general Government, are subject to the rules
and articles of war, but are not so at other times.
362. During this period of h~ history England had no
standing army. Every freeman was a soldier. Each warlike
occasion brought the knights and their retainers to the field,
60,000 of the former being hound by free-hold tenures to respond for forty days each year to the sovereign's call to arms.
It was of the rules for the governm~t of these forces that Hale
in his history of the common law remarks: "The kings of
the realm, preparatory to an actual war, were used to impose
373
rules and orders for the due order of their soldiers, together
with certain penalties on the offenders, and this was called
martial law. But touching martial law, it is to be observed
that in truth and reality it is not a law, but something indulged rather than allowed as law; the necessity of good order
and discipline in an army is that only which gives these laws a
countenance." J
363. The term "martial law, " as here used, was not inappropriate. It meant the rule of the military as distinguished
from that of the civil authorities. It signified the discipline
of the camp, where the laws of peace were inadequate either to
maintain order among the soldiers themselves, or to protect
the community against their rude violence. It was applicable
only to those in martial array or their attendants.
364. To martial law, as here restricted by the common-law
historian, objection could not fairly be urged; it was a necessity, without which neither invasion could be driven hack
nor insurrection suppressed. But years wrought the beforementioned change in the signification of the term. The lines
drawn between classes of the people in England were at once
marked and profound. The rise, progress, and finally, to a
considerable extent, the obliteration of these deeply implanted
distinctions form one of the most interesting and instructive
chapters in the history of that nation. The serfs and villeins
often rose in rebellion, not by preconcerted movement, but
urged on by a common and intense hatred of the classes above
them. There was no civil power in the land capable of suppressing these uprisings. As just mentioned, the sovereign
had not at command the strong right arm of a regularly organized military force. On such occasions the need of a regular
army was severely felt. The large number of the turbulent
and discontented rendered it impracticable for the ordinary
officers of governmen~ to overthrow and bring to justice open.
defiant disturbers of the peace.
365. In these emergencies resort was had to what was
termed martial law to supplement the inadequate powers of
374
123.
2.
Hume, History
375
one blow was struck down then, and apparently for all time,
every pretense of authority for invoking martial law within
the realm in time of peace.
It was here declared, in what has been truly designated one
of the landmarks of English liberty, that no man ought to be
judged to death but by the laws established either by custom
or acts of Parliament. The circumstance was then narrated of
the appointment of the commissions under the royal seal to
proceed against such soldiers, mariners, and dissolute persons
joining them as should commit murder, robbery, felony, mutiny, or other outrage or misdemeanor whatsoever, by such
summary course and order as was agreeable to martial law
and was used in armies in time of war. This was declared to
be illegal, and it was prayed that these commissions might
be revoked and annulled, and that thereafter none of like
nature might be issued. By the favorable action of the King,
the Petition of Right became (1627) the law of the land; and
subsequently the exercise of martial law, according to the
technical meaning of that term in time of peace within the
realm, has been interdicted. 1
368. "What," said a profound lawyer and jurist,2 "is
martial law? It is the will of a military commander operating
without any restraint, save his judgment, upon the lives, upon
dte property, upon the entire social and individual condition
of all over whom this law extends. But, under the Constitution of the United States, over whom does this law extend?
2.
376
tion thereto. The general who moves his army over private
property in the course of his operations in the field, or who
impresses into the public service means of transportation or
subsistence to enable him to act against the enemy, or who
seizes persons within his lines as spies, or destroys supplies
in immediate danger of falling into the hands of the enemy,
uses authority unknown to the Constitution and laws of the
United States in times of peace, but not unknown to the Constitution and those laws in time of war. The power to declare
war includes the power to use the customary and necessary
means effectively to carry it on. As Congress may institute
a state of war, it may legislate into existence and place under
executive conuol the means for ics prosecution. / And in dme
of war, without any special legislation, not the commanderin-chief only, but every commander of an expedition or of
a military post is lawfully empowered by the Constitution and
laws of the United States to do whatever is necessary and is
sanctioned by the laws of war to accomplish the lawful objects
of his command.
o. But it is obvious that this implied authority must find
early limit somewhere. If it were admitted that the commanding general in the field might do whatever, in his discretion,
might be necessary to subdue the enemy, he could levy contrihutions to pay his soldiers; he could force conscripts into his
~ervice; he could drive out of the entire community all persons not desirous to aid him; in short, he could be the absolute
master of the country for the time being. No one has ever
supposed, no one will now undertake to maintain, that the
commander-in-chief, in time of war, has any such lawful authority as this. What, then, is his authority over the persons
and property of citizens? I answer that over all persons
enlisted in his forces he has military power and command;
that over all persons and property within the sphere of his
actual operations in the field he may lawfully exercise such
('onstraint and control as the successful prosecution of his
particular military enterpl ise may, in his honest judgment,
377
378
379
C,,,,\, /.
\
,.
"
3~0
381
382
383
governing authority of the State, and it depends upon the Constitution of the State whether restrictions and rules are to be
legislatively adopted for its application, or whether it is to
be exercised by the Executive and on his initiative according
to the exigencies which call it into existence. But even when
left unrestrained by constitutional or statutory law, like the
power of a civil court to punish coIitempts, it must be exercised
with due moderation and justice; and as paramount necessity
alone can call it into existence, so must its exercise be limited
to such times and places as this necessity may require; and,
moreover, it must governed by the rules of general public law,
as applied to a state of war; It, therefore, cannot be despotically or arbitrarily exercised any more than any other belligerent right can be so exercised. 1
"The subject of the greatest difficulty connected with martial law is its
existence in a country distant from the scene of military action or in districts which are not in a state of insurrection. How far may it extend in
point of geographical limits? How far may it extend in intrinsic action?
Can it be dispenged with under all circumstances? How can people devoted to liberty limit its action so that it may not become a means of
military despotism?
"It cannot be dispensed with under all circumstances, and if there
were a law prohibiting it, it would break through the law in cases of
direct and absolute necessity. The salvation of a country is like the
saving of an individual life. It is paramount to all else.
"It has been denied that the Government has any right to proclaim
martial law or to act according to its principles in districts distant from
the field of action, or to declare it in larger districts than either cities or
counties. This is fallacious. The only justification of martial law is the
danger to which the country is exposed, add as far as the positive danger
extends, so far extends its justification." (Ives' Military Law, p. 13,
note.)
Regarding the last point here touched upon, Whiting (War Powers,
loth edition, p. 169) says: "Nothing in the Constitution or laws can define
the possible extent of any military danger. Nothing, therefore, in either
of them can fix or define the extent of power necessary to meet the emergency. Hence it is worse than idle to attempt to lay down rules defining
what mnst be the territorial limits of martial law."
I. Halleck, Chap. 17. Sec. 25: see also O'Brien, American Military
Law, p.28.
* * *
384
Appendix V.
2.
214.
385
than as being the authority exercised by a military commander over all persons, whether civil or military, within the
precincts of his command in places where there is either no
civil judicature or this has ceased to exist."
377. Regarded as a belligerem right, to be exercised under
the customs of war in repelling invasion, martial law is that
military rule and authority which exists in relation to persons
and things under and within the scope of active military
operations, and which extinguishes or suspends civil rights
and the remedies founded upon them, for the. time being, so
far as it may appear to be necessary in order to the full accomplishment of the purposes of the war-the party who exercises it bein~ liable in an action for any abuse of the authority
thus conferred. It is the instituting over our own people the
government of force, extending to persons and property. according to the laws and usages of war, to the exclusion of the
municipal government, in all respects where the latter would
impair the efficiency of military rule and military action.
Founded upon the necessities of war, and limited by them, its
existence does not necessarily suspend all civil proceedings.
Contracts may still be made and be valid so long as they do
not interfere with or affect military operations. The civil
courts are not necessarily closed, for all actions relating merely
to the private affairs of individuals may still be entertained
without detriment to the public service; but it closes the consideration there of any action, suit, or proceeding in which
the civil process would impair the efficiency of the military
force. 1
This describes with greatest precision the conduct of affairs
when martial law was proclaimed in the British colonies in
South Africa in 1899. It was as a war measure that the British
authorities availed themselves of this power. The incidents
attending enforcement of martial law under such circumstances
are wider in scope than when martial law is inaugurated
I.
386
3ts7
military service. 1
This opinion was a carefully considered statement of the
judge-advocate general's view of the subject then under consideration. Yet the assertion that the power exercised under
martial law is entirely arbitrary is liable to mislead. It cannot be meant by this that the authority there exercised by
the military is despotic and irresponsible, nor even that responsibility is limited to accountability to military superiors
alone. And herein lies the safety of the community.
380. It is true that some expressions of military commanders and recognized authorities on the law, detached
from their context and hence in great degree misapplied, give
color to the view that officers are not legally responsible for
their acts under these circumstances; for instance, the statement of the Duke of Wellington, that "martial law is the will
of the commander-in-chief"; of Lurd Hale, that "it was in
truth and fact no law at all, but something indulged rather
than law"; of Blackstone, that "it is built upon no settled
principles, but is entirely arbitrary in its decisions"; or that
"it is an arbitrary kind of law ur rule sometimes established
in a place or district occupied or controlled by an armed force,
by which the civil authority and the ordinary administration
of the law are either wholly suspended or subjected to military
power." 2
381. None of these authorities gives countenance to the
proposition that those who enforce martial law over our own
people and territory are legally irresponsible for what they do.
The Duke of Wellington was speaking of military government
-the power of a conqueror on foreign soil-as illustrated by
his own experience in France; while, as we have seen, Lord
Hale referred to rules adopted by the sovereign for the gov2.
388
as-
1.
II
I;
-t Wallace, p.
2.
389
The safeguards against martial law are not found in the denial of its protection, but in the amenability of the President
to impeachment; of military officers to the civil and criminal
laws and to military law; in the frequent change of publ~
officers, the dependence of the army upon the pleasure of
Congress, and the good sense of the troops. 1
384. Omitting cases that have occurred during active
warfare, and therefore as an incident of belligerency, there
have been numerous instances of martial law having in terms
been declared by governors and military commanders of high
rank. The occasions have all resulted from the entire backdown of civil administration and failure to perform its appropriate functions in the governmental system. They are not
growing less frequent within the limits of che United States.
but rather the reverse. 2 Martial law, to meet and overcome
domestic violence, appears to be invoked more frequently
within those limits than under any other of the first-class
powers. There must be some deep-seated reason for this;
doubtless many reasons. One of the most potent, perhaps, is
the elective character of local officials, who in consequence feel
acutely a personal interest in the cultivation of friendly terms
with those in the community who, in subordinate capacities.
have much to do with popular elections and who not infrequently are the prime-movers in civil disturbances tha\. necessitate invoking the interposition of the military power. Another reason is the confusion in the minds of many people
leading them to interpret liberty as being license; the safeguards to personal rights secured by the amendments to the
Constitution as an immunity to them in invading the same
I. Whiting, War Powers, 10th edition, pp. 163, 170. 2. Without attempting to enumerate all, the following instances are cited:
General Andrew Jackson, New Orleans, 1814; Rhode Island Legislature,
1842; Commanding General, New Orleans, 1866; Governof of Arkansas.
1868; Governor of Tennessee, 1869; Governor of Arkansas, 1874; Governor of Washington Territory, 1886; Governor of Pennsylvania, 1892:
Governor of Idaho, 1892; Governor of Idaho, 1899; Governor of Pennsylvania, '902; Governor of Colorado, 1903-04.
'1;
390
391
l\',,\, .
'I
\ ",' '"\
\y,
CHAPTER A:VIII.
MARTIAL LAW UNn2R ENGLISH JURISPRUn2NC2.
393
394
arrest and detain in custody all persons engaged in such rebellion or suspected thereof, and to cause all persons so arrested to be brought to trial in a summary way, by cowtmartial, for all offences committed in furtherance of the rebellion, whether such persons were taken in open arms against
His Majesty, or otherwise concerned in the rebellion, or in
aiding or in any manner assisting the same, and to execute
the sentences of all such courts-martial, whether by death or
otherwise. Finally, and as if in anticipation that this parliamentary declaration of martial law might possibly be con
strued in some way as a precedent to detract from the common-law power of the sovereign, it was further enacted that
nothing in the act should be construed to take away, abridge,
or diminish the acknowledged prerogative of the crown for the
public safety, to resort to the exercise of martial law against
open enemies and traitors. Language could not more clearly
and forcibly set forth the full scope of martial-law power in
time of insurrection or rebellion.
389. Two features of this law are worthy of particular
attention: first, the careful reservation of the right of (he
crown by prerogative to resort to martial law, thus refuting
the claim sometimes made that Parliament alone has authority
to put into operation this power, and establishing beyond
question that the crown legally could resort to martial law in
the contingencies mentioned, where the expression "open enemies or traitors" would seem, as in reason it should, to provide
against' invasion as well as rebellion; second, the provision
that the summary course of martial law should have full effect
equally, whether the ordinary courts of justice were or were
not open; and the reason for this was as interesting as the
provision itself was important-namely, that the course of the
common law would be taken advantage of by guilty parties as
a means of escape from the punishment due to their crimes.
This is the more important from the fact that one of the most
familiar rules for the determination of the necessity which
alone justifies martial law is whether or not courtS of justice
395
39')
397
ate. If these conditions are not fulfilled, the act becomes unlawful, with all the consequences attaching to illegality. It
then takes rank with those acts to which the privilege and protection of martial law are not extended. The vindictive passions are prohibited as absolutely during military rule as in the
most orderly and tranquil condidon of human affairs. Excess
and wantonness, rruelty and unscrupulous contempt of human
life, meet with no sancti In from martial law any more than
from ordinary law. No amount of personal provocation will
justify or excuse vindictive retaliation. v,r ere it otherwise,
an institution which, though stern, is beneficial, would degenerate into an instrument of mele private malice and revenge." I
These views, delivered from [he bench and in the very presence as it were of insurrection, will plesent the two aspects
under which martial law appears: . first, a necessity arising
from particular cllcumstances and justifying what in good
faith, honestly and with reasonable discretion, may be done
under it to protect and defend life and property and preserve
society; second, a rule of law holding to strict accountability
those who seek under cover of its exercise to gratify personal
and unworthy ambition, or to tyrannize over those whom
misfortune for the time being has placed in their power.
392. This rebellion and the measures taken to suppress it
gave rise to heated discussions in England on the subject of
martial law; the officers who had declared and enforced it
were subjected-but without ultimate serious legal consequences-to the annoyance of prosecutions in the mother
country, which assumed very much the appearance of persecutions. The home government, while not justifying all that
had been done, sustained the energetic measures of its officers,
and grand juries could not be brought, even under the seemingly
biased instructions of judges, to bring in true bills against them.
One of the most notable and valuable incidents of this public
agitation was the delivering an opinion-non-judicial-on
the nature and scope of martial law, by Mr. Edward-James
.-J
I.
398
Vol.
I,
p.
'J07.
399
400
II,
Introduction).
4~).1
which gave him the power, and that he should show in his justification that he had used every possible means to ascertain
the guilt which he had punished; and, above all, no deviation
from the common principles of humanity should appear in
his conduct.
Second, the courts-martial, as they are calied, by which
martiallan.:p this sense of the word is administered, are not,
properly speaking, courts-martial at all. They are merely
committees formed for the purpose of carrying into execu tion
the discretionary powers assumed by the Government. On
the one hand, they are not obliged to proceed in the man
ner pointed out by tpe Mutiny Act and the Articles of War.
On the other, if they do so proceed, they are not protected by
them as the members of a court-martial might be, except so
far as such proceedings are evidence of gcod faith. They are
justified in doing with any forms and in any manner whatever
is necessary to suppress insurrection and to restore peace and
th~ authority of the law. They are personally liable for any
acts which they may commit in excess of that power, even if
they act in strict accordance with the Mutiny Act and the
Articles of War.
393. This opinion is deemed of sufficient importance to be
quoted at length. It will be observed, however, that the
learned counsel who delivered it had only under consideration
the case of rebellion, riot, or insurrection, an uprising so small
in its proportions as not to warrant dignifying the resulting contest for its suppression by the name of war; nor such as would
secure to the rebels belligerent rights; nor does the situation of
a community disordffed by invasion receive any except a passing allusion, with no examination as to what the necessiti<-s
growing out of such a state of affairs legally would justify.
Attention at the time it was delivered was being earnest Iy
directed to the incidents attending the recent enforcement of
martial law in the distant island of Jamaica; and the burning
question of the hour was whether after the suppression of active
resistance alleged criminals legally couM be proceeded againNt
-26-
402
403
404
the ordinary course of law may have been partially restored ormay never have been altogether stayed." He then remarks
that the Mutiny Act, by prohibiting martial-law methods in
time of peace, indirectly recognizes resort to this expedient as
legal in time of war and rebellion, or such armed rising as is
levying war against the crown; that no legal dogma can be
clearer than this, and being each year recognized by Parliament, it is entitled to all the deference which may be due to an
act of the legislature so repeatedly revised and considered;
finally, that the legal right of the sovereign to resort to the
exercise of martial law, as here defined, has been frequently
reasserted by the legislature and is not to be questioned.
397. To the same effect is McArthur, who calls attention to
the confusion of thought often fallen into by able lawyers and
writers, who constantly confound military law as exercised by
authority of Parliament, the Mutiny Act, the Articles of War,
and Army Regulations, .. with a different branch of the royal
prerogative denominated martial law, and which is only resorted to upon an emergency of invasion, rebellion, or insurrection." 1 This was in 1813; and he observes that martial
law is proclaimed by authority of Parliament over the kingdom
partially or wholly for the suppression and extinction of the rebellion; that the authority under which martial law is exercised, when it prevails in its full extent, claims a jurisdiction
in summary trials by courts-martial not only over all persons
in the military service under all circumstances, but that it also
extends to a great variety of cases not relati~g to military
matters, but affecting those occupying the district for the time
being subjected to martial law.
398. Griffiths observes that martial law extends to all persons within the district affected, while military law applies only
to those belonging to or serving with the army; that necessity
is the only rule of the former; that the punishments which
courts-martial may inflict under its authority are not limited as
I.
Vol.
I,
p. 33.
405
20;
406
407
408
409
2.
Ibid., p. 517.
410
MILITARY
GOVER~MENT
2. Constitutional History of
4II
been invested with' a degree of coercive power to maintain obedience of which our ancestors in the most arbitrary reigns had
no practical experience. If we reflect upon the multitude of
statutes enacted since the days of Elizabeth in order to restrain
and suppress disorder, and above all, on the prompt and certain
aid that a disciplined army affords to our civil authorities, we
may be inclined to think that it was rather the weakness than
the vigor of her government which led to its inquisitorial
watchfulnss and harsh measures of prevention." To the same
effect is Dicey: "The belief, indeed, of our statesmen down to
a time considerably later than the revolution of 1689 was that a
standing army must be fatal to English freedom. Yet very
soon after the revolution it became apparent that the existence
of a body of paid soldiers was necessary to the safety of the
nation." I
405. Referring to the apprehension that it would be dangerous to liberty thus temporarily to elevate the military over the
civil power, Hallam continues:2 "Nothing could be more idle at
any time since the revolution than to suppose that the regular
army would pull the speaker out of his chair, or in any manner
be employed to confirm a despotic power in the crown. Such
power, I think, could never have been the waking dream of
either king or minister. But as -the slightest inroads upon
private rights and liberties are to be guarded against in any
nation that deserves to be called free, we should always keep
in mind not only that the military power is subordinate to the
civil, but as the subordination must cease when the former is
frequently employed, that it should never be called upon in
aid of the peace without sufficient cause. Nothing would more
break down the notion of the law's supremacy than the perpetual interference of those who are really governed by another
law; for the doctrine of some judges, that the soldier, being still a
citizen, acts only in the preservation of the public peace as any
I. Study of the Constitution, p 268.
2. Vol. 3, p. 253.
412
llILITARY
GOVE~
413
of their judgments, it becomes necessary to find some rude substitute for them, and to employ for that purpose the military,
which is the only remaining force in the community. While
the laws are silenced by the noise of arms, the rulers of the
armed force must punish as equitably as they can those crimes
which threaten their own safety and that of society." 1 And of
course insurrection or rebellion will, if the danger be sufficiently
pressing, equally with invasion or civil war, justify resort to
the same measures of self-preservation.
407. Clode elsewhere remarks that martial law is not a written law; that it arises on a necessity to be judged of by the executive, and ceases as soon as possible with safety to the
country or community; and that while existing it covers all
The important point is-and herein lies the fallacy of the proposition
referred to by Hallam-that regular soldiers, in the capacity whfch alone
renders them effective against disturbers of the peace-namely, wl1en
acting as an organized body under their military commanders, are not, like
the ordinary citizen, immediately amenable to the civil magistrate, who
secures the services of the soldiery. if at all. through the instrumentality
of their officers. Regular soldiers so circumstanced form no part of the
posse comitatus, as that term applies to civilians, upon whom the civil
magistrate lays the hand of authority directly. In the United States
there is a federal statute forbidding the use of the army as a posse comitatus, save in a very few instances. 2 And although this is not true in
England, yet it is true there as here that the regular forces, when acting with arms in their hands, do so mainly under the direct orders of their
lawfully appoint~d military superiors. It is therefore plainly erroneous
to class them with civilians as to obligations to obey the mandates of civil
magistrates in summoning the posse comitatus to suppress insurrection.
When the military are called out. it is through the medium of their commanding officers, who Rlone direct their movements; while, as regards
civilians, the civil magistrat~ not only drafts them into service, but personally commands them:and directs their energies to the maintenance of
the law. When the civil magistrate has indicated to the officer com
manding where and how the services of the troops are desired, his functions cease; it is for the officer to adopt whatever measures his experi
ence and l"Tlowledge of military affairs sug~st as best suited to accomplish the end in view.
I. M. F Vol. 2, p. 161. 2. Act, June 18, 1878, Sec. 10. Ch. 263.
414
persons, civil and military, but that those who act under it
must, if called to account, justify their acts by showing that
the necessity actually existed. 1
408. The English writer, Pratt, considers somewhat particularly the subject of martial law, but does not sufficiently distinguish that law from military government. .. In most foreign countries," he observes, "certain laws are made applicable
to a state of war or a state of siege or insurrection when a city
or county is wholly or partially placed under military authority. In England no such regulation exists. When an authority is forced by necessity to suspend the ordinary legal procedure, it is for it to lay down the limits of its action and to
justify itself for using exceptional power." 2
He then lays down the following principles as those which,
as far as practicable, should be observed in carrying martial
law into effect: (I) It is not retrospective; an offender cannot
be tried under it for a crime that was committed before martial
law was proclaimed. (2) It does not extend beyond the proclaimed district outside of which an offender cannot be either
arrested 01 tried. (3) It should not be kept in force longer
than absolutely necessary. (4) The plOcess of military law
should, as far as practicable, be adhered to.
The field of vision of this writer, when considering martial
law as a domestic fact, seems to be contracted to the occasion
of mere riot, insurrection, or minor rebellion. The circumstance either of invasion by a foreign foe or of a rebellion like
that of 1861-65 in the United States, or of the seventeenth
century in England, receives nothing more than a passing
allusion.
409. The general rules which this author lays down as those
to be followed in the administration of martial law are good in
themselves, and the only question likely to arise is as to their
applicability to varying circumstances.
410. His proposition that martial law cannot operate retroI.
p.
21~
II,
Sees. 3. 5.
2.
Military Law,
415
post.
416
Page
3~.
417
2,
p.
920.
418
I,
par.
130
CHAPTER XIX.
TJD)RY OF MARTIAl. LAW IN THn UNITnn STATnS.
'I
:\
- !~-~
-+ Wallace, p.
2.
2.
Speed.
419
'---
420
421
missions far from the field :)f operations, the other to prove
that such commissions legally could not be convened.
425. The reference, however, to the remarks of the Duke of
Wellington sufficiently evinces that the advocate making use of
it did not properly discri'llinate between n1 ilitary government
which the Duke had in mind, and which is governed by the
laws of war, and that martial law, considered as a dOlT'.esti~
fact, the exercise ,,)f which was being argued in the ca'ie at bar.
426. It is plain, too, that this arbitrary authority was, in
the argument, held to be closely allied, if Dot identical, with
irresponsible power. Bu t this was clearly wrong. In this country, at least, rnilitary officers cannot exerci'ie such authority;
it is inconsistent with the principles of our governmen.:, under
which the pe'Jple justly regard the responsibility of all public
servants to the law as the palladium of liberty.
427. The Supreme Court in this case, as is well known, took
occa3i ')n to support the view that martial law, under certain
conditions,legally could be enforced in the United States: And
while the justices disagreed upon the questbn as to the territoriallimitc; that pr'Jperly should be assigned to the exercise of
martial-law power, they all agreed that in cases of great emergencies, when society was disordered by insurrection or invasion, and the exeni m of every energy of government was
necessary to save the country, the exercise of martial law,
from the f1ecessities of the case, then became legal. .
428. What was said by t}-le justices regarding martial law
was indeed obiter. Thll.t question was not bdme the coult for
determination. Upon the matter at issue all were agreed.
Still, as in the arguments the nature of martial law was elaborately discussed, aU the justices, five explessing the maj;)tiLy
and f Jur the minority views, .took occasion to clear up the
judicial atmosphere which bef )re had rendered t}-le su bject hazy.
N.)r did this division of opinion lend greater obscurity. The
difference between opposing views Jeduced itself t) one point,
namely, whether or not martial law legally could be enforced
in districts far removed from the tread of contending armies,
422
or the operations immediately attendant thereon. The majority, in the proportion of five to four, held that it could not.
429. In enforcing martial law the officers act within and
n()t outside the pale of law. As was said by the Supreme Court
of the United StateS in Luther'll. Borden: 1 "Unquestionably a
State may use iLS military pewer to put down an armed insurrection too strong to be controlled by the civil auth')rity. The
: power is essential to the existence of every government, essenthl to the preservation ')f order and free institutions, and as
necessary to the States of thi3 Union as to any other government. The State itself must determine what degree of force
the crisis demands. And if the government of Rhode Island
deemed the armed opp:>sition so formidable and so ramHied
throughout the Scate as to require the use of its military force
and the declaration of mat tial law, we see no gr Jund upon
w:lich this court can question its authority."
430. The case which called forth this opinion arose, as is
well known, from an attempt forcibly to change the government
of Rhode Island, and was an action of trespass for assault and
false impris~ment, brought for breaking and entering the
plaintiff's house with an armed force and taking and holding
him a prisoner. The defendants, who were acting at the time
in pursuance of martial-law au hority, justified, pleading, in
substance, the existence of the insurrection, the declaration of
martial law by the legislature, thal plaintiff was aiding and
abeUing the insurrection, and the defendants, members of an
infantry company acting under the governor's orders, broke
into the plaintiff's house for the purpoc;e of arresting him.
The court held the breaking and entel ing entirely justifiable
under the circumslaDces, declaring in mose decided language
that without the power to proceed to such extremities the
government would be powerless against rebels, the declaration
of martial law a useless procedure, the array of military force
thet eunder mere empty parade; but the court to >k care seduI )usly to guard the rights of the people by remarking that no
I.
7 Howard, p.
I.
423
Works, Vol.
10,
p.
17.
4:14
425
426
2,
p. 60.
427
the commander, and with this judgment there.is reason to believe the better judicial opinion of the country concurs. 1
436. We thus see that manial law is dominant military
rule springing out of necessity and exercised under ultimate \
military and civil responsibility. When, because of internal
commotion, the bonds of society are loosened, and the people,
stripped of that protection which government is instituted to
afford, or when, in presence of an invading army, it becomes
necessary to concentrate every element of resistance to repel it,
the necessity for enforcing martial law arises. Yet it is not
to be put in practice in an irresponsible manner. As a rule,
those who call it forth can be held strictly civilly answerable;2
while those who carry it into execution may always be required
to give an account of tben stewardship. There is nothing here
to alarm the good citizen. It is the strong arm of military
power interposed either between him and anarchy, or his
home and the horrors Jf invasion.
437. The establishment of maniallaw does not of necessity
create antagonism between the judicial and the military authorities. In fact, these two powerful instrumentalities, if their
functions be examined, will be found to supplement each other
in the great work of preserving )rder in the community. The
duty of the one begins where that of the other ends. If the
judiciary be not elective, it is placed above tbe temptation of
being influenced by popular clamor. On that plane it joins
hands with the military in their effOl ts to secure to the citizen
the advantages of well-regulated government. Nor have the
efforts of the latter, acting with calmness, firmness, and discH r
tion under martial law, ever received more successful vindication than from the able judges who have adorned the highest
ranks )f the judiciary of England and the Unhed Smtes.
438. In the aspect that it is the exercise )f the last pOWel of
government, when civil authorities either will not or cannot
perform their part, martial law springs out of the infirmities of
,
\
I. 21
2.
2.
428
MILITARY GOVERNl[ENT
AND
MARTIAL LAW.
429
CHAPTER XX.
MARTIAL LAW SupPLnM!tNTS COMMON LAW.
43 I
432
injury, he is liable to be proceeded against for murder or manslaughter; and on the other, if he does not do enough, he is
liable b be proceeded against for culpable neglect. Practically
the common law fails in the presence of a really formidable
disturbance unless supported by adequate military force.
Even iIi counselling how this should be used the magistracy
have often hesitated because of the responsibility inv'Jlved;
the military, except when ordered by those having unquestioned authority, naturally hesitate to use their arms against
the citizen. That is the most thankless and disagreeable duty
that can be imposed upon the soldier.
446. Nor could the military lawfully kill at common law,
even where the felon was caught in the felonious act, unless
this were necessary to prevent the felony being consummated,
or to prevent the felon's escape, or unless in encounter with a
felonious or rebellious body of men. Hence it is not surprising
that the common law, even with the assistance of a subordinate
military fvrce, should prove not well adapted to times of great
civil commotion.
447. In some respects under that law the rioter was more
favorably situated than its officers. He could be convicted
only after all reasonable doubt as to his guilt was removed from
the minds of a jury composed of his peers. That guilt had to
be established under the strict technical rules of evidence apphcable to criminal cases, and all of which were especially intended to guard the legal rights of the criminal. The officer,
on his side, acted in suppressing any disturbance at his peril.
If loss of life resulted from his acts, it was necessary that he
show justification under the law governing homicides. His
position in this regard was not an enviable one. It was necessary for him to follow the precise line marked out by the lawoften a difficult task in times )f peace, and all the more so when
amidst civil disturbances, the fears, hopes, and passions of men
are excited and calm deliberation before decisive action often '
is rendet ed impossible.
433
4+8. It has been said that the common law is based upon
considerations affecting (I) the public good; (2) the safety of
the community. But in emergencies it reclgnized another
rule as applicable-namely, the customs of war. Did rebellion
close the c')urts in fact, res:>rt was had to this more summary
rule. In truth this was demonstrated b be a necessity, for the
common-lal"'"r powers of anticipating civil disorders were nil,
while those
suppression and prosecution, as just seen, were
incompetent to cope with rebellion.
449. When we consider the inadequacy of common-law
power effectually to deal with popular disturbances of magnitude or fierceness, and the fact that the sovereign had not
ready at hand a military force to suppress riots, insurrections,
or rebellions in then incipient stages, it is not to be wondered
at that the crown, when the civil magi'itracy could not protect
life and secure property, should resort to the swifter, mOlt'
certain, and effectual measule of martial rule.
450. The danger to be apprehended was that this power, if
permitted to be exercised at all, would be turned into an instrument of oppression.l 1 And notwithstanding the barons, sword
in hand, had at Runnymede itr 1215 forced from the crown
an acknowledgment that the great principles of liberty em
braced in Magna Charta were the law of the land, the plea of
civil commotion might be used as a cloak for the exercise of
irresponsible authority.
451. Yet the weight of 'luthority is to the effect that it has
ever been deemed constitutbnal for the sovereign in times of
disorder and turbulence to u~e the military power of the crl)wn
f:>t' the speedy repression f)f enormities and the restoring of tbe
public peace. It has been conceded always that there are times
when the .')rdinary course of justice is, fr~m its slow and regulated pace, utterly inadequat:e to the coercion of the most
dangerous crimes against the State when every moment is
critical; and, without some unusual measures on the part of
the authorities, society would be disturbed and g )vern'l1ent
itself shaken. The extension .)f power beyond its ordinary lim-
-oi
-28
434
its is therefore in such tiTtles justified on the pi indple of absolute necessity.l And in this Mr. Sergeant Spankie concurred
when he wrote Lnac martial law was in fact the power of social
defence, superseding under the pressme, and therefore under
the justification, of extreme necessity the ordinary forms of
justice. 2 In such case3 it is f1eld that by virtue of the necessities of the situation, the crown in the exercise ~li its prerogative-that is, of its right to do its duty, at all hazards, to preserve the peace oJf the realm-proclaims martial law. "And
although," says Fiolason, "it might be doubtful at common
law whether the exercise of martial law would be justifiable
except in districts covered by rebellion, yet if there were such
a degree of danger in the district by reason of its contiguity to
the scene of-actual rebellion, and imminent danger of itS spreading, that might be enough to excUSe an honest exercise of it
under supreme authority, or even to justify it legally."s This
recently was veIified in some of the Cape C,)lony districts.
452. As to the colonies, the Petition of Right did not affect
the prerogative of the crown, which could scarcely be said to be
aught than a shadow if it did not embrace tae power of putting
down rebellions in those distant possessions by the firm measures of martial law. In the colonies which afterwards became
the United States there existed from the filst an abhorrence
of .military rule. The suggestion of it on any occasion was
received with aversion. In great measure the people had left
the comforts of life behind them to escape from oppression.
They were willing to brave the dangers and hardships of the
wilderness that they might breathe the air of freedom. For
many years they saw no n1ilitary force save. that raised from
among taeir own ranks to ward off attacks of the Indians, to
follow and puni3h them in their fastnesses, or to carry on war
against the eneTtlies of the mother country in the western
world.
1. Tytler, Military Law, p. 52. 2. Hough's Military Law, p. 350.
3. Commentaries on Martial Law, p. 129.
435
436
437
New Y )rk city with its adjacent defences had been seized by the
enemy. The commander-in-chief, with but a handful of troops,
had been chased almost in derision across New Jersey. The
army seemed w be disintegrating. the terms of service of the
troops were expiring, and a reorganization of the army in the
very teeth of the enemy was slowly being carried on under
circumstances of discouragement. Philadelphia, where Congress sat, was thtealened, and, LO avoid capture, tloat body
hastily adjourned to meet at Baltimore. It was then that by
brmal resolve of Congress all affairs of government, in so far
a') they related to the pI :>secution of the WaI, were placed fOI
the time being in the hands of the commander-in-chief.
458. By this act tbe civil was completely subordinated,
wherever necessary, w the military power. But the trust was
not abused. Whatever it was necessary to do for the safety
of the country, that the military chief did until Congress again
took up the reins of authority. In his conduct on this interesting occasion he acted with that moderation which g~erally
will bt' found to mark th~ exercise of military authority by other
comfllanders upon whom great responsibility rests, either hi~
contemporaries, or those who, foI1owin~ upon later stages of
the country's history, have had the benefit of his patriotic
example.
CHAPTER XXI.
NATURE OF'
439
Vol.
I,
p. 413.
440
12
and
13
2.
2.
Vol'
I,
294.
441
take the part of those who put and keep them in office. Judges
under such circumstances may ~ee much that is commendable
in the actions of their neighbors and friends even when strangers do not. They may not, when so situated, be capable, even
if willing, of meting out justice fairly and impartially and as
they would if their personal, professional, family, and pecuniary
interests were not so intimately involved. What boots it, then,
that courts are open and free to render their dicisions if for this
or other cause justice will not be administered?
464. Not to mention other instances, the border States within the Union lines furnished nwnerous cases illustrative of this
fact during the Civil War. The remedy was martiallaw. Summary took the place of the usual courts of justice. No government worthy the name will be bound by its own agents at the
feet of a foe, either foreign or domestic. Nor will this be permitted under the guise of legal proceedings. The important and
vital point may be, not that courts can not, but that they will
not do their duty. This was evidently thought to be the case
in Ireland in 1803. 1
When such a contingency arises, it is not only the right, but
the duty of the government whose integrity is thus assailed to
adopt whatever measures are necessary to cure the evil which
threatens it. That is what the Imperial Parliament proceeded
to do during the Irish rebellion, 2 while the act of Congress of
July 19, 1867, establishing martial rule over the late rebellious
States, made it the duty of the military commanders to remove
from office all persons who were disloyal to the United States,
or who used their official influence in any manner to hinder,
delay, prevent, or obstruct the due and proper administration
of the laws. It is a well-known fact that this power was as
frequently exercised in the case of judges as of others. 3
465. There may be other obstacles which,' equally with
physical force, render the civil authorities incapable of serving
the purpose of their being. If they can not perform their duties,
I. 43 George III., Chap.
XXIII, po&t.
II;.
2.
3. See Chap.
442
it matters little what the cause is. They exist for the benefit
and protection of the people. When, with the facilities the law
has given them, they cease to perform their functions, they become an incumbrance to society. Experience has everywhere
shown that this stopping the wheels of civil government, or
diverting the course of affairs into improper channels, may result just as easily in times of civil commotion from indifFuiticn
on the part of officials as from the interposition of physical obstacles to prevent them doing their duty. The danger in the
former case is the greater because the more insidious. When
it appears, it should be dealt with promptly and decisively. 1
466. The same principles apply in case of invasion. It is
true that the Supreme Court of the United States has said that
martial law can not arise from a threatened invasion;2 that the
necessity must be actual and present; the invasion real, such
as effl'ctually closes the courts and deposes the civil administration But it is apprehended that this language is to receive
a reasonable construction. Otherwise it can scarcely stand the
test of time and experience.
In the presence of invasion, either actual or threatened, martiallaw may become necessary for two distinct reasons.
First. The commander upon whom devolves the duty of repelling the enemy may be justified in gathering into his hand
every warlike resource of the dist rict to direct them with the
greater effect. What excuse would the commander to whom
w 15 given the defence of the national capital have if he failed
to do this, and that fair city, the pride of the nation, fell again,
as in 1814, into the hands of Vandals? He would be without excuse. There is not involved here in any degree, necessarily, the question ')f the courts being closed by overpowering
forc'e, and the people, including the magistrates, may all be inspired by a spirit of patriotism. It might be wholly practicable
for the courts to sit as usual; marshals might serve their processes; juries return indictments, or determine questions of fact.
I. Johnson v. Jones, 44 Illinoi'l, p. 155.
Wallace, p. 2.
2.
443
2,
p. 964.
444
112-120.
445
and the single desire to serve his country well and loyally in its
hour of need, he has little to fear. 1
472. We have thus far considered the necessity for martial
law which results from foreign invasion in the view only that the
commander may direct with greatest effect all the power and
resources of the district to the one object of defeating the
enemy. We will now examine this necessity lrom another
point of view-namely, the resulting terror, demoralization,even
disintegration of society which sometimes accompanies threatened invasion.
473 Amidst this general consternation, the military commander may be the sole person inspired with confidence. He
may encourage the people to pursue their affairs undeterred by
fear of the enemy. But it by no means follows that he will be
able to reassure those whom he thus would quiet. An undefined
dread of evils to come may have paralyzed the usually strong
arm of civil authority. Secret enemies, disguised as friends,
contribute to the feeling of unrest. The machinery of municipal government stands still or works remittently. This may
be unattended by civil commotion, no trace of which may anywhere be discernible. No disposition may exist to thwart the
ordinary authorities in the performance of their duties. And
yet, while attention is fixed upon one object only, and every
energy is bent to the one paramount duty-repelling the invasion-the power of effectively carrying on the civil government
imperceptibly may pass away. But no community can live
without government, which in times of great excitement must
needs be active and forceful. And if it become incompetent
to perform its functions, not because of opposition, but from
mere inanition, nothing remains but to call forth that great
reserve power, martial law.
474. Nor is the condition of affairs rendering this necessary
the mere creation of fancy. It is the usual attendant upon invasion when resisted with spirit by a people devoted to their counI
2,
920.
446
2,
p. 58 fit seq.
~.
447
448
449
450
2,
pp.
7-21.
451
2,
pp. 138-156.
452
....,
---l.
453
what the chief-justice did not know, and what, due to sectional
prejudice, he possibly would not have acknowledged had he
known the facts, that there existed in the then condition of the
municipal government at Baltimore a danger as formidable to
the national cause as was presented by the enemy in the field.
And the former was more difficult to deal with; it acted under
cover, and had to be sought out in the dark.
491. Had the President hesitated to act as he did, makingthe military the dominant power and using the local government
only as a matter of convenience, he would have been chargeable with neglect of duty at the moment of supreme importance to the cause of the Union. Such an error would never
have been recovered from. Everything depended upon decision, promptness, and effective action. Fortunately for republican institutions, those at the head of national affairs were
in no manner recreant to the great trust reposed in them by the
people. When, to save the Republic, it became necessary to
institute martial law, they did it; and posterity, enjoying the
blessings of the government thus transmitted, cherishes with
grateful remembrance the names and services of those whose
energy, ability, and devotion to duty thus rescued the Union
from threatened destruction.
492. Nor, during the progress of the Civil War, did it always follow that to justify martial law it was necessary that the
people sympathize with and covertly aid the eneClY. That
was only one cause giving rise to the martial-law necessity.
Take the case of Kentucky. A majority of her people, including many of the wealthier classes, were loyal. It certainly was
not the policy of the national authorities to bear heavily upon
those who, amidst the most trying surroundings, then upheld
the Union cause. On the contrary, that policy was to favor
them in every practical way. Kentucky was, however, a border State. Her territory at first was overrun, her cities occupied, her substance appropriated by rebel hordes; and until
the end of the war it ever was a fond hope of the Confederacy
to plant the triumphant flag of rebellion permanently upon
454
455
456
when sentiment gave way to the inexorable facts of the situation. The Executive acted with becoming promptness and
decision. And surely it seems singularly unfitting that those
who then were saved from the secret plottings of the rebels,
or who have received the benefits of that Union which these
energetic measures in no slight degree contributed to perpetuate, should find fault with officers who reluctantly were
compelled to adopt them. We have here the case of justifying and excusing peril mentioned by the minol ity opinion in
Ex parle Milligan, when, due to insurrection or civil war within
districts where ordinary law no longer adequately secures
public safety and private rights, the President has authority to
ieclare martial law.
CHAPTER XXII.
FEDERAl. AUTHORITY TO INSTITUTE MARTIAl. LAW.
497. The political organization of the United States err"braces two distinct sovereignties, that of the general Government and that of the States, each of which within its appropriate sphere of action is supreme. Martial law may be invoked
to defend each from danger, either external or internal.
498. The Constitution provides that Congress shall have
power to make rules for the government and regulation of the
land and naval forces; to provide for calling forth the militia
to execute the laws of the Union, suppress insurrection, a.tid
repel invasion. 1 Within a few years after the government
was organized it became necessary to make use of this constitutional power. An insurrection broke out in the western
part of Pennsylvania against the laws of the United States.'
President Washington at once marched a large militia force
into' the disturbed district. It was a case of necessity. In \
those early days the organized militia was, theoretically, depended upon to do the military work of the country, except
to fight Indians, and to thi~end a law was passed empowering
the President to callout .the militia to repel invasion,2 suppress
either insurrections or combinations 'against United Stat,es
laws. In the first instance he moved upon his own initiative;
in the second, upon that of the governor or legislature; in
the third, upon notification of a United States associate justice
or judge. In the Whisky Rebe1liop in Pennsylvania in 1794
the governor refused to assist the judge when ..salled upon;
but President Washington himself took the fie~ at the heap
of the militia froht -several States. The rebellion collapsed
at rumor of this show of for~e. Another so-called reb'ellion
occurred in the eastern part of the same srate in 1799, but, in
I.
Art.
I,
Sec. S.
2. Ac~MaY:2, J 792 -.
457
458
I'.
627.
459
2062, 2118,21-1-7,2150.
21
(R. S.
i. R. S.,
460
lace, p.
Howard, p.
el seq
I;
4 Wallace, p.
2; 21
In<liana, p. 370.
2:
4 Wal-
461
p. 41
462
remarked, to inqu~e to what extent or under what circumstances the power could be exercised by a State. Unquestionably a military government, established as the permanent
government of a State, would not be a republican government,
and it would be the duty of the Congress to overthrow it. But
the law of Rhode Island evidently contemplated no such government. It was intended merely to meet the peril wrought by
armed resistance to the existing government. It was so understood and construed by the State officials. In this condition ;)f
thin'{s, the officers engaged in the military service might lawfully arrest anyone who, from the information before them,
they had reasonable grounds to believe was engaged in the
insurrection, and they might order a house to be entered and
searched if there were reasonable grounds for supposing he
might be there concealed.
506. In the argument of the case before the court the 1 ight
of the State to declare martial law had been denied on the gTOund
of the supposed danger to free government which was nect''isarily involved in such a prinrlple. T:) support this view the practices ')f the crown prior to the Petition of Right were cited.
But the court remarked that such citations were wholly irrelevant, if, as was evidently true, the inference wa." sought to be
drawn that because in the instances cited from early English history an arbitrary power had been abused to the injury of the
subject; therefore the exercise of similar auth0rity by the supreme !Jower in the State under lim:tations which insured the
mainte!nn~e of governmental and municipal institutions and
the just rights of the people was unconstitutional.
507. An important feature of this decision was the statement t:nt t'le existing condition of affairs at the time martial
law was declared constituted a state of war. When that p:>int
1<; legally determined, or legally can be inferred, the Executive
Department of the gwernment may at once pnceed t) adopt
the necessary measures to meet the emergency. Its deter,"ination. however, is not always an easy matter. "If war be
actually levied," said the Supreme C.mrt in another case, "that
463
464
1'-.
465
30-
466
which it is susceptible, which will tend to maintain and preserve the government of which it is the foundation and protect
the citizens of the State in the enjoyment of their inalienable
rights. In suppressing an insurrection it has been many times
determined that the military may resort to extreme force as
against armed and riotous resistance, even to the extent of taking the life of the rioters.
"Without such authority the presence of the military in a
district under the control of the insurrectionists would be a
mere idle parade, unable to accomplish anything in the way of
restoring order or suppressing riotous conduct.
"If. t~en, the tnilitary may resort to the extreml' of taking
human life in order to suppress insurrection, it is impossible to
imagine upon what hypothesis it can be successfully claimed
that the milder means of seizing the persons of those participating in the insurrection or aiding and abetting it may not be
resorted to."
514. It has been mentioned that in the adjacent Territory
of Arizona not only was it found necessary for the military to
assume control, as in New Mexico, but a government complete
in all its parts was set up there, first by the rebel and continued
afterwards. by the Union commander.l The isolation of the
two Territories mentioned, the time required to communicate
with them the difficulties and dangers which beset all attempts
at such communications had the effect as 'completely to render
them distant colonies as in the British Empire are the West
India possessions. The military authorities present were compelled of necessity to use their best judgment as to what was
proper to maintain national control. The choice of measures
rested with the commander. In him was vested a discretion as
to the means to be adopted to preserve order, protect society,
and render life and property secure. This was to be exercised
by him upon the sound principle that where discretionary power
is lodged in a public officer he is the sole judge of the justifying
I.
----~--~-
-~---
467
facts, and can only be held accountable civilly for corrupt and
criminal abuse of authority.
.'i I 5. The condition of affairs in Missouri, previously adverted to, early called for the use by the Union authorities of
measures of repression. r Although, as they never officially
had been declared by the President to be in a state of insurrection. her people technically were considered to be loyal; but
the real facts, as well known, were far otherwise. A large
portion of the wealthy and influential classes openly or secretly
sympathized with the cause of secession. Thousands of the
bravest and most reckless of the male population were enrolled
in the armies of the enemy or organized into partisan bands
terrorizing the districts they infested. These could all be
dealt with according to the laws of war. But the case was
different with secret rebel sympathizers, who covertly extended
aid and comfort to the enemy. As a result, confidence was
impaired, disloyalty became the boast of some who sought
and were given the protection of the Government, wrile
in some parts of the State midnight assassinations, robberies, and burnings carried on by marauders and guerillas
converted extensive cultivated and prodiIctive districts into
deserts. The administration of justice became such in name
only; causes were determined not on their merits and the
evidence, but according to the political bias of litigants and
the loyalty or otherwise of judges and juries.
If society were not to be permitted to dissolve and the State
become the scene of inextricable confusion, the time had come
for the Union military officers to act. Accordingly August 14.
1861, General Fremont, commanding the \Vestern Department,
declared martial law in the city and county of St. Louis, amJ
extended it on the 30th of the same month to the whole State.
The object was explicitly stated to be to place in the hands of
the military authorities the power to give instantaneous effect
to existing laws. and to supply such deficiencies as the conditions
of war demanded. It was not intended to suspend tbe civil triI
468
p. 395.
2.
469
470
4-71
from necessity, not from choice, was supreme; yet the civil judicature, where practicable, was left unimpaired, and where
there was departure from this rule, those who assumed the
responsibility were held strictly accountable. This sufficiently
attested the goo:l-will of the military towards the civil com
m'.luity, wbich they were tbere to protect, not to oppress.
523. The sequel proved how the best-intentioned measures.
b~<;ed upon respect for law, and whictI, were that possible.
should have brought tbe people to a realizing sense of their
duty as citizens and to the government which protected them.
m1.y fail in mom~nts of great so~ial disturbance to accomplisb their benign purpose. The instructions which established
t'1cse rules for the exercise of martial law were issued July 7,
1863. Their effect was far flOm uniting even the loyal in the
comm'Jn cau..e. The people unfortunately did not realize the
g~ lerosity of thi3 policy. To such extent was opposition carried
t1'1t newspaper articles appeared intended to excite mutiny
an J:l3" tl:le soldiers, both national and State. To meet this new
d~J.ger orders were issued two months later (September 17,
1853), rigidly enforcing m'lrtiallaw against all wbo within the
department in any m~nner encouraged mutiny, insubordination,
or disorderly rondu<,t, or endeavored to create dissatisfaction
am:>ng the troop<;. All persons who should either publish or
publicly utter words calculated to excite insurrection or lawless
acts among tbe people, and all who should publish falsehoods
or misrepresentations of facts calculated to embarrass the exercise of military authority, were to be brought fOT theiI offences
before military co~missions for trial. 1
524. When ('()urt<; of justice cannot properly exercise their
jurisdiction. it is admitted on all hands that martial law may
be invoked. But it by no means follows that the converse of
the proposition is true, and that this law cannot be appealed to
unless the civil judicature is forcibly deposed. Among many
illustrations of this fact furnished by the Civil War the condjtio:I of affairs in Kansas may be cited. The people of that
I.
22,
472
2.
2d
edition,
473
I.
41.
474
475
The rule W.1S to derive from the measure every military advantage possible, leaving the question of legality for afterconsideration.
529. Whether or not the President rightfully exercised this
authority became the subject of animated discussion. He never
seem.c; 1<. have doubted it. However, to quiet the angry waters
of disputation, Congress, March 3, 1863, passed what might be
boked upon as an cnablmg act, a.tth01izing tpe PIesident to
suspend the pIivilege :>f t he WI it. This satisfied those w;lose
only doubts were as to the right of the President to suspend
the writ without legislative authorization. But it raised up
another class of objectors who, conceding that Congress had
plenary power in the premises, denied that they could delegate
it to the President. Whether the President or the Congress exercised the power, it was found equally impossible to meet the
constitutional scruples of all. By the terms of the act mentioned the suspension of the writ during the then existing rebellion was, throughout the United States, made to depend
upon the judgment of the President of the necessity of the
measure; and fUl ther, whenever or wherever the privilege should
be so suspended, no military or other officer was compelled, in
answer to a writ of habeas corpus, to return the body of any
person or persons detained by him by the President's authority.
The officer had only to make oath that he held the party under
such authority to suspend further action on the part of the
judge or court issuing the writ.
530. To give efficacy to the act of Congress, the President
issued his proclamation of Septembet 15, 1863. This was necessary to give warrant and protection to executive officers whose
duty it became to enforce the law. The different classes of
cases which, in the President's judgment, came within the purview of the 9.('t, were thereby announced. They included all
cases where, by authority of the President, military, naval, and
civil officers of the United States held persons under their
command or in their custody, either as prisoners of war, spies,
or aiders or abettors of the enemy, or officers, sailors, or seamen
476
477
478
479
beyond this. There were many interests of national importance to be guarded at the capital. Besides being in a peculiarly
exp')sed pJsition, as regards liability of attar:k, it was in all
particulars the center of Federal governmental control. All the
great departments were there located. and all had to be protected. Fro'1J there the affairs of the nation were regulated.
But aside from this, there were many matters to be looked
after in the city which, while ordinarily within the purview of
local government, became, under the conditions surrounding
the capital, of national moment. There foreign representatives
lived, whom, at that time, it was particularly desirable to
guard from the semblance of molestation; there were the
public buildings, offices, and rec::>rds of the general Government,
destruction of which would be an irreparable loss; there, also,
emissaries of the enemy, many of whom lived in the city, were
plotting for his advantage.
To aid the local civil authorities in guarding public interests
springing out of these and other kindred matters, a provostmarshal's staff, assisted by a military police, was organized soon
after the war began, one of whose important duties it was carefully to guard political ptisoners gathered from all parts of the
country, and who, either becau<;e they had given aid and comfort to the enemy, or were suspected of it, had become subjects for restraint. In March, 1862, the provost-marshal of the
Army of the Potomac was relieved of the supervision of these
duties in the city of Washington by a military governor, who
was assisted by a proper corps of subordinates, including his
own provosts. 1 This military governorship over the District
of Columbia continued until the close of the war.
5W. The various proclamations suspending the privilege
of the writ of habeas corpus in ceI tain enumerated cases heretofore cited were as applicable in the Di trict of Columbia as elsewhere in the United States. Such suspension, however, in the
instances specified did not operate necessarily to institute marI. G. 0.25, A. G. 0., March IS, 1862; S. 0.353, par. 20, A. G. 0.,
November 19.1862; S. O. 449, par. 38, A. G. 0., December 16,1864.
480
CHAPTER XXIII.
CONGRESSIONAl. MARTIAl. LAW.
-81-
482
484
..,.'86
33 Texas, p. 570.
2.
7 Wallace, p. 701.
3. 13 Wallace, p. 646.
488
plished by the civil judicature, to the extent absolutely neces,gary, ading under military control. Hence it was that on both
the Union and Confederate sides during the Civil War, when
martial law was declared it was generally stipulated that this
was not to be considered as disturbing the usual order of things
-except in so far as imperatively necessary; while often supplementary orders were issued by those upon whom the duty of
-enforcing martial law devolved, calling'the civil and municipal
.administration to their assistance.
CHAPTER XXIV.
MARTIAl., LAW IN STAT~ AND TgRRITORIES.
554. We have seen that in carrying into execution thoselaws which provide for pIOtecting the national Government
again~t both invasion and insurrection, and maintaining Federal supremacy, the President may ac! within the States independently of State authorities and even against their wisres.
There have been numerous instances of this exercise of power
in the history of the Government. Under those circumstances,
if measures proceed to the extremity of martial law, the Federal Go~ernment acts without necessarily inquiring how the
State is affected.
555. There is, however, another case when the interposition
of Federal power is authorized by the Constitution and wherein
the State acts a more determining part. Article 4, Section 4,
provides that "the United States shall guarantee to every
State in this Union a republican form of government, and shall
protect each of them against invasion and, on application of
the legislatu e or of the executive (when the legislature cannot be convened), against domestic violence."
556. Regarding this duty of guaranteeing governments
republican in form but little need be said. A question might
arise as to what constituted such government. If this happened, it would be necessary for some controlling power to
decide, and unquestionably it would be Congress. The Supreme Court of the United States so stated- in Luther v. Borden,
and the Reconstruction Acts of March 2 and July 19, 1867,
proceeded upon this principle. 1 If the instituting martial
law under these circumstances became necessary, it would bewholly a matter of Federal cognizance.
I.
491
2.
Art.
I,
492
493
494
495
496
497
498
that the State, and not the Nation, is supreme. 1 Having decla"ed martial law, Governor Pickins proceeded solemnly to invest the COnfederate general commanding the department with
autbority to enforce that law! and with further authority to impress, in the country south of tbe'Santee River, labor of all
kinds for the public service in like manner as if martial law
were there declared! Of course, the principle that the State
was the source whence the authority of Confederate officers
flowed, as here assumed, was a me1e figment of a disordered
States' rigbts mind, and wholly untenable; the necessities of
war soon swept to one side and strangled the heresy. The
Confederate general could not and did not act under the pretended authority conferred by the governor. On the same day
that tbe latter proclaimed martial law the Confederate President issued a similar proclamation embracing the same and
mucb more territory-the whole country between the Santee
and South Edisto rivers in South Carolina-and it was duly
maintained until August 19, 1862, when the orders instituting
martial law were rescinded. 2
In Georgia, the governor, while not proclaiming, expressed
himself as willing that martial law be extended by Confederate
authority over those portions of the State the inbabitants of
which, as at Augusta, were calling for its exercise. 3 In Louisiana we are presented with the spectacle of the governor soliciting the Confederate President to declare martial law in certain
parishes, and expressing bis deep regrets that it was not done,
as thereby "much, very much serious trouble would have been
avoided."
571. There have been few examples of the enforcement of
martiai law in the Territories of the United States. The Territory of Washington furnishes two instances. The first was in
1856, when the governor, himself an' able and distinguished
soldier, proclaimed and enforced it. The question of the governor's authority on this occasion having been submitted to the
I. R. R. S., 1., Vol. 14, pp, 489, 491.
Vol. 15, p. 492.
2.
Ibid., P.~599.
3. R. R. S., I.,
499
Attorney-General for an opinion, that officer, after exhaustively examining the subject, arrived at the conclusion that such authority did not exist. 1 The reasoning was to the effect that
the Territorial governor, being an appointee of the President,
had only those powers which statutes, strictly construed, gave
him; and although occasions might arise, in a Territory as in a
State, when the enforcement of martial law would be necessary, the legislature alone could seemingly authorize the exercise within a Territory of the martial-law power.
572. It is safe to assume that this reasoning will not be
-deemed conclusive. In fact, it was disregarded, with the apparent approval of the President, by a subsequent governor of
tbe same Territory. 2 In the years 1885-86 there were frequent
illegal uprisings of the lower classes in the western portion of
that Territory against the Chinese. These gradually grew into
riotous assemblages in defiance of civil authority, the centers
of disturbance being in Tacoma and Seattle. The rioters were
armed and defiant. The local militia were called out in aid of
the officers of the law, supported by the posse comitatus. The
proclamation of the governor warned the mob to disperse. It
was wholly disregarded. In a conflict between the rioterswho were the worst characters from that part of the United
States-and the State authorities, one rioter was killed and
several were wounded. 3 The governor issued a second proclamation, declaring that an insurrection existed by which life,
liberty, and property were endangered, that the civil power
was unable to suppress the disorder, and placing the city of
Seattle under martial law. Before taking this step the chiefjustice and the United States attorney of the Territory were
consulted, both of whom earnestly counselled the measure.
573. The President of the United States, far from finding
fault with the governor, promptly seconded his efforts to mainI. 8 Opinions of Attomey-General, p. 365 t~ seq.
2 Report of Governor of Washington Territory to Secretary of Interior, 1886. 3. TbIs
was a state of war under English authorities; see Regina v. Frost, 9 Car
rington & Payne's Reports, p. 129.
500
tain the law at all hazards. He immediately issued a proclamation stating that a case had arisen which justified and required,.
under the Constitution and laws of the United States, the employment of military force to suppress domestic violence and
enforce the faithful execution of the laws, and directed General
Gibbon, commanding the United States forces in that quarter,
to move with regular troops to the assistance of the governor.
These energetic measures had the desired effect. Quiet was
soon restored. The presence of the regular troops gave confidence to the business and law-abiding members of the community. Having been in force two weeks, the proclamation
of martial law was revoked. After the arrival of the regulars
-and until February 22, 1886-martial law was enforced.
General Gibbon had complete military control. This was with
the acquiescence of the governor and at his request.
574. For his course in this trying emergency, Governor
Squire had the approval of all good citizens. The bar of Seattle
passed resolutions declaring that the exigencies of the occasion
fully justified martial law, and pledging the governor their
support. A feeling of relief pervaded the community when
the strong military hand was felt at the helm, and of gratefulness to those who had saved the people from anarchy and the
rule of a cowardly mob. To render maltial law effective, provost-marshals were duly appointed; the privilege of the WIit of
habeas corpus was suspended as to rioters, while in respect to
ordinary municipal affairs the military in no wise interfered.
575. The remaining conspicuous instance of martial law in a
Territory was that of Arizona in 1862. When the Rebellion of
1861 broke out, the insurrectionary government promptly put
in execution a scheme of conquest of the southwest Territories.
of the Union. Both New Mexico and Arizona were invaded,
and the latter for some time held by the rebel military forces.
Early in 1862 a relieving column of national troops from California reached the Territorial capital, where, June 8, 1862, its.
501
'Commander, Colonel Carleton, issued' a proclamation establishing martial law throughout the Territory.*
576. The summer of 1892 has furnished an unprecedented
number of instances within the States of the military power
being appealed to for that energy and sstrength which civil administration lacked. In several different and widely separated
districts, riots or similar disturbances, accompanied by loss of
life and destruction of valuable property, demonstrated how
inadequate municipal authorities quickly may become to secure
*This was worded as follows: "In the present chaotic state in
which Ariwna is found to be, with no civil officers to administer the laws-indeed, with an utter absence of all civil authority-and with no security
.of life or property within its borders, it becomes the duty of the undersigned to represent the authority of the United States over the people of
Arizona as well as over all those who compose or are connected with the
'COlumn from California. Thus, by virtue of his office as military comm tnder of the forces now here, and to meet the fact that wherever within
.our boundaries our colors fly there the sovereign power of our country
must at once be acknowledged, and law and order at once prevail, the
undersigned, as a military governor, assumes control of this territory
until such time as the President of the United States shall otherwise
direct. Thus also it is hereby declared that until civil officers shall be
sent by the Government to organize the civil courts for the administration
.of justice, the Territory of Arizona is hereby placed under martial law.
Trials for capital offences shall be held by a military commission, to be composed of not more than thirteen nor less than nine commissioned officers.
The rules of evidence shall be those customary in practice under the common law. The trials shall be public and shall be trials of record, and the
mode of procedure shall be strictly in accordance with that of courtsmartial in the Army of the United States. Unless the public safety absolutely requires it, no execution shall follow conviction until the orders in
the case by the President shall be known. Trials for minor offences shall be
held under the same rules, except that for these a commission of not
more than five nor less than three commissioned officers may sit, and a
vote of the majority determine the issue. In these cases the orders of the
.officers ordering the commissions shall be final. All matters in relation
to rights in property and lands which may be in dispute shall be determined for the time being by a military commission, to be composed of
not more than five nor less than three commissioned officers. Of course
appeals from the decisions of such commissions can be taken to the civil
(.'ourl'l when once the latter have been established," (R. R. S., I., Vol. 9,
P 56 1.)
502
the people the enjoyment of their just rights when a considerable portion of the community unite in setting the laws at
defiance. And not only that, but how a very few individuals~
encourage:! in lawless deeds by secret societies who tender them
sympathy and material aid, may render necessary the exertion
to counteract their machinations, the exercise for a protracted
perio:! of the energies of government upon an extensive scale.
577. The contemplation of this condition of affairs must give
rise to disagreeable sensations in tbe breasts of all citizens whoeither own property which may tben be destroyed or who desire only to live in peace under the protection of the law-in
other words, who ask only that government do its duty. The
instances of disorder show unmistakably that there is abroad
in the land a spirit of reckless defiance of authority which the
experience of the world has demonstrated cannot be controlled
without the application of overwhelming physical force, disciplined, armed, and directed systematically to that end.
Furthermore, it seems that, in great exigencies, the military is
the only force that can be so utilized successfully.
578. Not the least alarming feature of these riotous proceedings is the melancholy evidence they furnish of the general
helplessness in their presence of the civil authorities. The
posse comitatus has signally failed. It is an old and honored
institution, sanctified in the Anglo-Saxon system of jurisprudence. But events are fast accumulating which furnish ground
for the belief that it is not suited to the present conditions of
society. Where was the posse comitatus when death and destruction stalked abroad in the Tennessee and Creur d'Alene
regions, at the Homestead, Pennsylvania, mills, and the extensive railroad dep6ts of BUffalo, New York? The confession is
unwillingly forced from us not only that it could not be a..sembled in force sufficient to sustain the civil officers in the execution of the law, but that efforts to do this only brought the
whole system into contempt by demonstrating to the lawhreakers its insufficiency as an energetic, forceful instru'l'entality of government. There exist, of course, reasons for this
503
504
methods, and that when shooting, unfortunately, became nee. ess'lry. it would be to kill. I
.'i7Q. If the posse comitatus fail, some other effective coercive
power must take its place, or disorder grows apace and government fails of its purpose. That power is the military. If this
fail, revolution results. The question then becomes interesting, Who is to control this new force, the military authorities
alone, the civil alone, or both combined, and working to a common end? The question is not only interesting, but of importance as well, for experience everywhere has shown that
this force of last resort acts effectively only when, whether
theoretically so or not, it is practically independent of civil
interference. It does not fit into the niche in the governmental
structure that the posse comitatus was intended to fill, but has
left vacant. It is wholly different from the latter in origin,
organization, design. and method of employment. The opposite assertion, as Hallam points out, is a sophism. In suppressing the distubances to which reference here is made, tbe
military, except in the Idaho instance, in contemplatio'l of law,
proceeded in coOperation with, if not in subordination to, the
civil power. But did the latter really exercise control in one
instance? If so, it is not known where or when. At most the
civil authorities perforce contented themselves with indicating
what they deemed desirable, and then the military proceeded
to carry out the plan agreed upon. In this union of civil and
military power the latter acted with preponderating influence,
decision, and effect. At Homestead the situation fell little
short of that at the Creur d'Alene mines, before mentioned.
If martial law did not hold sway there theoretically, it certainly
did as a practical fact; and from necessity the civil authorities temporarily were powerless. Moreover, the military performed this onerous duty well. If errors were committed. they
were the inevitable attendants upon the unusual and trying
situation in which the troops were placed. The manifest and
gratifying result was the speedy re-establishment of order and
the rule of law where before there reigned social anarchy which
I
A. R. 488, 1904.
505
506
the status was not wholly unlike it. The situation brought
with it new offences, aggravated the heinousness of others, and
rendered necessary the adoption of measures, repressive and
deterrent, which at other and more orderly times would not
have been justifiable. Such measures are not to be judged by
the standard of peace alone, but by that of the quasi state of
war which gave rise to them. An act which in ordinary titr.es
would be harmless and pass unnoticed might now become so
aggravated an offence as to render proper the most summary
aQd effective punishment. The transgression may be such that
if left unnoticed will lead to the most deplorable results. That
is the case with mutiny in all services, and wllich is held to
justify the infliction of the death penalty even during peace.
The summary punishment of offenders under martial law proceeds upon the same principle. Otherwise, and if the slower
process of the regularly constituted tribunals be resorted to, the
moment for effective action may pass, the evil example have
worked its baleful influence, and punishment as a deterrent
measure be useless.
582. Necessity is the keynote. Obviously. measures which
would be jmtifiable in a serious insurrection would be excessive
under a less disturbed condition of affairs. 1 In the long run
any amount of just severity becomes a mercy; the bringing a
few promptlv to answer for their offences may be the reeans of
saving much property, many lives, and prevent the spread of
the contagion of revolt. When military officers in the presence
of mob rule, or other similar danger to the social order, are constrained to take summary measures, it may not be possible to
justify their conduct under the strict rules of law. But no inthe moment, without any definite object beyond the Kratification of its
sudden passions, does not commit treason. although it destroys property
and attacks human life. But when a large number of men arm and or
ganize themselves, and engage in a common purpose to defy the law, to
resist its officers and deprive their fellow-citizens of the rights to which
they are entitled under the Constitution and laws, it is a levying of war
against the State and the offence is treason."
I. Lieutenant Young, Military'll. Mohs (188ll).
507
11.
CHAPTER
xxv.
104.
510
190.
2.
Art
I,
Sec. 9. d.
2.
511
512
,'514
The local court refused to transfer the case, under Section 5, act
of March 3, 1863, to the United States Circuit Caurtfor determination; on appeal to the State Supreme Court the decision of the
lower court was reversed. In the opinion the SuprefIle Court
remarked: "In October, 1864, the armies of tl>e United States
were in active service in the field. To sustain these arfIlies the
Government was drawing supplies, both of men and material,
from this State. Its officers were active in procuring the enlistment of recruits for the military service. Without these
supplies from the country in rear of the armies it was impossible to carry forward movements or to prosecute the war
Prisoners of war were sent by the military officers in command
of our forces in the field to military camps within the State. to
be guarded and securely kept. Under these circumstances was
it the duty of the President or of the officers in command of
the military district under him to pe-mit a hostile organization,
as alleged in the petition, to be formed, armed, and freely organi ed, to act in the interests of the rebellion, and by force of
arms to attempt the release of the prisoners of war and the
destruction of the Government? Must the military commander
wait for an actual attack upon the military camps? Must he
depend upon the courts to guard the prisoners of war placed
under his charge. Must he permit the supplies of men and
provision to be cut off, and the country in rear of our armies
to be occupied by hostile forces? Must he wait for the blow to
fall, or may he seize the conspirators while they are collecting
their forces and preparing to strike? These are grave questions ~
they may involve not only the liberty of the men who, while
claiming to be peaceable citizens employed in civil pursuits,
were, it is charged, in fact engaged in secretly organizing a hostile military movement for the destruction of their own Government; but the decision of these questions may also concern
the future life of the nation."
595. This is all true. The necessity that exists for arbitrary
arrests may not always be confined to times and places of open
resistance to the execution of the laws. The arm of authority
515
:I,
p. 973.
:I.
5I 6
"In any other State but this, in the population of which are
many individuals who, not being perfectly acquainted with
their rights, may easily be imposed upon, it could not be expected that the judges of this court should, in complying with
the constitutional injunction, in all cases to adduce the reasons
on which their judgment is founded, take up much time to
show that this court is bound utterly to disregard what is thus
called martial law, if anything be meant thereby but the strict
enforcing of the rules and articles for the government of the
Army of the United States established by Congress, or any act
of that body relating to military matters, on all individuals belonging to the Army or militia in the service of the United
. States. Yet we are told, by this proclamation of martial law,
the officer who issued it has conferred on himself, over all his
fellow-citizens within the space which he has described, a
supreme and unlimited power, which, being incompatible with
the exercise of the functions of civil magistrates, necessarily
suspends them. * * * * Under the Constitution and
I aws of the United States, the President has a right to call or to
cause to be called into the service of the United States even the
whole militia of any part of the Union in case of invasion. This
power, exercised here by his delegate, has placed all the citizens
here subject to military duty under military authority and military law. That is conceived to be the extent of martial law,
beyond which all is usurpation of power."
598. In the'light of the decisions of the Supreme Court of the
United States in Luther 'IJ. Borden, Ex parte Milligan, and the
numerous instances where the military during the Civil War
assumed the responsibility of enforcing martial law, the President's proclamations to the same effect, as well as the experience of the States of the Union during the last half -century,
this opinion of the Louisiana.court seems strangely wide of the
mark, and indicates a surprising lack of appreciation of the
nature of that law. 1
t.
See a7lle, Sec. 384, Chap. XVII.; post, Sees. 602, 603, 604..
599 Unquestionably the judges were honest in their expressed convictions. But they did not state the law." The
cause of action they were passing upon arose when the city was
under martial law and the enemy near at hand were menacing
descent. Whatever diversity of views may exist regarding the
legality of martial law on other occasions, repeated decisions of
the Supreme Court of the United States have established beyond c'1vil that martial law is legal under such circumstances;1
and being so, the functions of all civil tribunals were suspended
temporarily except in so far as the military commander might
require their assistance. If the Louisiana judges were right,
then the act of the Rhode Island Legislature declaring martial
law was void; the decision of the Supreme Court of the United
States sustaining its action was judicial tyranny; and the deliberate judgment of the same court in Ex parle Milligan, that
under just such circumstances as surrounded New Orleans in
1814-15 martial law was justifiable, was an act of judicial usurpation which ruthlessly trampled under foot the most sacred
rights of the citizen; the proclamation of the President instituting martial law in Kentucky, and the various orders of military commanders establishing martial law in the same State,
and in Missouri, Kansas, Arizona, New Mexico, and other
places during the Civil War, were all 'llere nullities, conferring
no rights upon the milItary authonties, and relieving them of
no responsibility for any acts which affected civilians within
the proclaimed district.
600. In this age and at this stage of governmental development it is scarcely necessary to remark that this is not the judicial interpretation of the law. The opinion of the Louisiana
judges_belongs to that class of legal theories which would hold
the commander liable for destroying the hou'Je of a loyal citizen
which protected and strengthened tre enemy's line of battle,
and which would compel him either to keep to the public roads
in taking up his position on the field, or be adjudged a trespasser
I.
7 Howard, p.
P5 IO
I j
4 Wallace, p.
~; 110
U. S., p. 633;
18
Wal1ace,
518
harmless.
The court remarked that the order of the governor sending
t'Je :nilitia into the district created there a condition of qualifid m'lrtial law, and referred approvingly to the views on
martial law of the Chief-Justice of the United States in Ex
parte Milligan. Qualified, because the military were there only
to preserve the public peace and order, and not for the ascer
tainment anrl vindication of private rights, or other ordinary
functions of government. For the latter purpose the courts
and other agencies of the law were still available, and only
needed the strong arm of the military to preserve that degree \
of order necessary to enable them to perform their functions.
T~le con:litio:l established by calling out the military, within its
nece3sary field of action, was martial law, with aU its powers.
"The Government." the court significantly remarked, "has
and must have this power or perish; and it must be real power,
sufficient and effective for its ends-the enforcement of law,
the peace and security of the community as to life and property." In response to the proposition that either peace or
war. with no intermediate state, must prevail, the court remarked that this was an error, and that the condition of the
community under discussion was an illustration of that fact.
It remarked that there may be peace for all the ordinary purposes of life. and yet a state of disorder. violence, and danger
in special directions, which, thougb not technically war, has'
in its limited field the same effect. and. if important enough to
call for martial law for suppression. is not distinguishable, so
far as the powers of the commanding officer are concerned,
fro:n actual war. The condition in fact exists, and the law
must recognize it, no matter how opinions may differ as to
what it should be most correctly called. When the civil authority, though in existence and operative for sane purposes,
is yet unable to preserve the public order and resorts to military aid. this necessarily means the supremacy of actual force,
the demonstration of the strong hand usually held in reserve
520
and operating only by its moral force. but now brought into
active exercise. The effect of martial law is to put into operation the powers and methods vested in the commanding officer
by military law; so far as his powers for the preservation of
order and the security of life and property are concerned.
there is no lionit but the necessities and exigencies of the
situation. 1
Tais case cleared the atmosphere for the Colorado cases,
whic'1 in all important respects were of the same nature.
The Governor of Colorado announced in some instances
that a condition bordering on insurrection and rebellioI" existed. a:t:l in others that such insurrection and rebellion actually
prevailed. Applying the principles of the law as enunciated
by the Pennsylvania Supreme Court, the situation should
have been, from a judicial standpoint, as easily disposed Of
as was that in Pennsylvania. This, however, did not plOve
to be the case, due to the indisposition of elective judges
sometimes to thwart the wills of those whose franchises put
them on the bench. The condition of affairs, so far as certain
judges were concerned, was precisely that described by the
Supreme COUl t of the United States as doo'lling in advance to
failure efforts to maintain the laws through State agencies. J
However, this was not the general tendency of the Colorado
judiciary, which upheld as a rule the executive power, citing
the precedent of the Pennsylvania case just commented upon.
The Circuit Court of the United States refused to take jurisdiction of certain phases of the contention when appeale~ to, but
its remarks unqualifiedly showed that its sympathies were
with the governor, who with firmness and patriotism was
establishing the rule of good order in what for a long time had
been a lawless and terrorized district of the State. "There is
now a governor," said the court, "who is disposed to enforce
the laws of the State, and I can only say that the people of the
State are to be congratulated upon the circumstance. We
I. Commonwealth v. Shortall, AllatUic Repem.r, 55. p. 952 et seq.
2. 158 U. S. Reports, p. 565.
5 21
I2
';22
CHAPTER XXVI.
MARlAL-LAW TRIBUNALS.
P. 137.
2.
526
MARTIAL-LAW TRIBUNALS.
I00l
U. S., 444 ~
528
II.
4 Wallace, p. 13.
p. 822.
lURTIAL-LAW TBIBUNALB.
but civil courts which originate by written law, and wl:o~e jurisdiction is defined by written law, cannot transcend that jurisdiction. 1 Nor is there perceived any ground upon which can be
based a well-founded claim that the decisions of martial-law
tribunals, proceeding within the sphere of their jurisdiction, are
less determinate in character than are those of the ordinary
courts-martial. Regarding the latter Lord Campbell has said:
"The court-martial having had jurisdiction of the person and
the case, its proceedings cannot be collaterally impeached for
any mere error or irregularity, if there be such, committed
within the sphere of its authority. Its judgments, when approved as required, rest on the same basis, and are surrounded
by the same considerations which give conclusiveness to the
judgments of other legal tribunals, including as well the lowest
as the highest under like circumstances." 2
613. No reason is seen why the principles of responsibility
attaching to those who sit on courts-martial should not apply to
members of martial-law tribunals. The latter equally with
courts-martial are of limited and special jurisdiction. Within
the martial-law district these two classes of courts may sit side
by side, each taking cognizance of appropriate subjects-matter
of adjudication. The members o(one:class of these tribunals
may under these circumstances even drop the official habilimeats of one and take up those of the other with no formality
except the reading an order from superior military authority.
True it is that the court-martial is a tribunal of both peace and
war, while the martial-law tribunal may be more nearly characterized as a war-code tribunal only. Yet as the latter determines causes within friendly territory alone, where, except for
the disturbances which called forth martial law, the ordinary
civil courts would have complete jurisdiction, it is not be ieved
that its members successfully can claim immunity from responsibility upon any broader principle than"can the members of a
court-martial. There is this in favor of"the members of the
martial-law court: they act under great difficulties, dealing with
I.
4 Cranch, p. 93.
14-
2.
530
MARTIAL-LAW TRIBUNALS.
531
532
uw.
533
534
lIABTIAL-LAW TJUBUNALB.
535
536
styled the "military court" for trial of cases beyond the civilcourt and court-martial jurisdiction.
619. In regard to martial-law tribunals the remark of Lord
Loughborough, that "it would be extremely absurd to expect
the same precision in a charge brought before a court-martial
as is require I to support a conviction before a justice of the
peace," finds peculiar emphasis. 1 So as to the penalty. to be
awarded. The situation renders it imperative that martial-law
tribunals should be given great freedom of action. In tbe
case of The King v. John Suddis the important point was decided that courts-martial sitting under the Mutiny Act and the
Articles of War are not bound, in awarding sentences, to adhere to or observe the limits of punishment permissible for
the same offences by ordinary criminal courts administering
the laws of England. 2 Such also is the common practice in the
Un'te:i States; even the97th Article of War, which autho izes
confinement in the penitentiary, do~ not limit the punishment
to what, in analogous cases, criminal courts might inflict.
Every consideration which would lead to co ceding such freedom of action to courts-martial under statutory authority, applies yet more strongly to military commissions under ma tial
law, This must be so in the nature of thin~. The effect of
the lawful declaration of that law is to suspend and exclude, so
so far as the power inaugurating it may determine to be necessary, the ordinary laws of this land. It follows that the punishable offences need not be common, or statuFory, law offences,
still less that the penalties inflicted should be those only which;
in ordinary times, are suited to these offences.3
620. In point of fact, it is only the graver instances of the
institution of martial law that warrant a military commission
being organized to try cases. It would have been so, for instance, in Kentucky and Missouri during the Civil War. These
were occasions when large geographical districts were involved,
I. Grant'll, Gould, 2 H. Blackstone, p. 69; 111 r8 Poe, BarnwaU
&: Adolphus' Reports, Vol. 5. 2. East Reports, p. 306; Finlaaon, Martial
Law, p.
104.
3.
101.
JURTIAL-LAW TRIBUNALS.
537
538
---
I. FinlaSOD,
539
polity, but they take pride in and are ever ready to D1aintain it.
The danger is not serious that those who thus have a just
appreciation of the true relation of civil and mUitary authority,
aad who with arms in their hands stand ready to uphold the
supremacy of the former if necessary, will often be found seeking to overthrow established civil institutions, and rear upon
the ruins for ever so brief a period the rule of military power.
When, therefore, these officers, aa members of military tribunals, have placed in their keeping, in the regular tourse of their
duty under martial law the lives, liberty, and property of
their fellow-citizens, it scarcely need be apprehended tbat they
wantonly will abuse their temporary authority.
624. Regarding rules of evidence which should be ob.'.:erved
in their proceedings, it may be remarked thet martial-Jaw tribunals are not to be bound either by common-law rules or those
which ordinarily govern in courts-martial. Here, however, as in
their procedure, the rules which are observed by courts-martial
may well be taken as a guide. The reason why common law
rules of evidence do not bind martial-law tribunal. is not that
they are not, under ordinary circumstances, well adapted to the
development of truth. They are so adapted; the wisdom of
generations has built them up, not only as a strong protection
to the accused, but a means of eliciting truth. Yet the extreme
nicety of the distinctions which characterize those rules, and
which, as a protection to innocence, is their chief ornament,
renders them inapplicable for courts proceeding by more
summary methods.
625. As a general thing, military men are but imperfectly
versed in the rules of evidence before criminal courts. Familiarity with these requires much study and practice. It isimpossible for them to acquire more than a general knowledge of
their fundamental principles. Otherwise it were necessary for
officers to renounce their profession as soldiers and become lawyers. Sad indeed will be the day for any military service
when such ideas predominate. W}lile members of military tribunals engage in legal disputations the time for action passes
540
JU.llTIll.-LAW TRIBUNALS.
541
will elicit with greatest facility and certainty the highest degree of truth that the extraordinary occasion will permit.
627.' Such, likewise, are the views of military authorities in
other services. Mr. Clode, after remarking that mat tial law
will sometimes be established, thereby rendering some substitute for the regular courts of law a necessity, observes regarding
the martial-law tribunal: "It should proceed upon charges
based on the known criminal law, and upon sworn evidence
given in the presence of the accused. What he has to say in
bis defence should be patiently beard, and a record complete,
so far as circumstances will permit, should be made of all the
proceedings. Tbe analogy of the military code is to be followed, not as binding, but as directory, for the jurisdiction of
the court is to be upheld, not by the authority of the Mutiny
Act, but by the. suprf:llle power of the executive government
to administer justice at all times." 1
628. The rules of procedure and of evidence of martial-law
tribunals may seem crude when judged by the common-law
standard. But it must be remembered that these tribunals are
convened only when ordinary methods have ceased to be applicable, and tberefore that which in the normal condition of
society would be irregular becomes regular and highly commendable. By eschewing wherever they find it expedient to
do so common-law court processes, particularly in regard to
matters of proof of alleged offences, martial-law tribunals are
enable:! to deal out promptly, effectively, and in a manner
suited to the times in which they hold sway, a crude it may be
yet an even-banded measure of justice well suited to the protection of the lives, liberty, and property of the citizens, and
yet uphold and vindicate the power of the law.
629. Generally in the enforcement of martial law the military will content themselves simply with preserving order and
defending their dignity and author;ty from atttack, delivering
civilians who may be arrested over to civil officers for trial
I.
Military and Martial Law, p. 169: and see Fin1ason, Martial Law,
p~._----_.
542
CHAPTER XXVII.
RESPONSIBILITY 09 CoMMAN"DERS-MARnAL LAW.
.J
544
545
II-
II
Johnson
546
547
10, 1806,
Chap.
20.
548
540.
549
550
MILITARY GOVERNMENT
.urn
HARTIAL LA.W.
55 1
injury, if he does not exceed the scope of his authority and is not
influenced by malice, corruption, or cruelty. 1
643. Had the general declared martial law in his camp and
the immediate vicinity, he would have bee"} justified. 2 He wa~
in command in the face of t}le enemy, w}lose territory and military f01Ces were but a few miles distant. The United States
Goverment had entrusted to him the task of defeating the
enemy in that quarter and maintaining there the prestigE' and
success of the American arms. No more onerous task could
be imp0'ied upon a public officer. Whatever reasonable and
u'iual means were nece'iSary he had a right to utilize for the
accompli'il>ment of }lis purpose. J\iSUI'edly it was necessary
that be prevent spies from plying their nefarious practice;;.
Had he failed in this, he would have been without excuse if
disaster re<>ulted. He could not wait, perl>aps for positive
proof'! of guilt, such as would be nece'3'iary in a court of law to
convict of treason; but he had to act upon reasonable caU'>e of
suc;picion that McConnell was a 'ipy, and in this the attending
circumstances justified him. It is well known that military
commander<> in such situation'i, while they Diust avoid the
charge of acting oppressively, yet they are required to act
promptly and upon evidence which to them at the time seems
sufficient, though afterwards it may transpire, that appearances
had deceived them. If it were otherwise-if it were necessary
that the commander pause in the midst of important operations
and carefully examine the evidence upon which spies and
others traitorously are plotting witb the enemy, in order that
he, the commander, may subsequently vindicate his conduct in
arresting them before a civil court sitting long after the even~,
when the pressing necessities of the circumc;tanees which impelled the commander to act have disappeared, tbe hour for
action would pa~ unimproved, the enemy accomplish his purpose through the very information which these spies had given
bim. Had the arrest not been made, the courts might have
t.
7 Howard, p. 89.
2.
4 Wallace, p.
2.
552
II
I.
553
I.
War Powers,
loth
edition, p. 173.
2.
Sec. 714.
554
212-45
268.
2.
3 Bissell,
3j
Abbott, pp.
555
556
MILITARY
gress or of
treati~
GOVEllNllBNT AND
lU.BTI.AL LAW.
2.
557
559
costs the temporary forefeiture of a portion of the rights, privileges, and immunities of the citizens involved. This is the case
of ordinary rebellion, insurrection, or disturbances which set
at defiance the powers of government over districts more or less
extensive. When open war exists, and the commander within
his own territory is operating in face of the enemy, his liberty
of action is greater. It is then for him to decide what measures, restrictive or suppressive of civil authority, the success
of his military movements may render necessary. Not that
he may even then wanton with power at the expense of his
fellow-citizens. Far from it. But, having exercised his acknowledged right of self-determination as to what is necessary
for military success under the circumstances, even though this
include martial law in his immediate vicinity, he is to the
fullest entitled to every consideration which springs out of a
charitable construction of his acts when viewed in the light of
the dangers surrounding and responsibilities devolving upon
him at the time.
656. In Commonwealth 'V. Shortalll the Supreme Court of
PeQnsylv&nia remarked: .. While the military are in active
service for the suppression of disorder and violence, their rights
and obligations as soldiers must be judged by the standard
of actual war. No other standard is possible, for the first
and overwhelming duty is to repress disorder, whatever the
cost, and all means which are necessary to that end are lawful. The situation of troops in a riotous and insurrectionary
district approximates that of troops in an enemy's country,
and in proportion to the extent and violence of the overt acts
of hostility shown is the degree of severity justified in the
means of repression. The requirements of the situation in
either case, therefore, shift with the circumstances, and the
same standard of justification must apply to both. The only
difference is the one already adverted to-the liability to subsequent investigation in the courts of the land after the restoration of order."
t.
CHAPTER XXVIII.
RBsPONSIBII.1TY 0" SUBORDINATES.
Paragraph
J.
Regulations, Army U. S.
560
RESPONSIBILITY OF SUBORDINATES.
-38-
562
practicable, to transfer the responsibility to the officer who issued the illegal order. The subordinate is certainly in a most
trying position when called upon to obey an order whicl1 he
deems to be illegal. If he disobey and his judgment be at
fault, he is without recourse i he must answer to his commander
for disobedience and to the law for any resulting evil consequences within its cognizance. If, on the other hand, he obey,
yielding his judgment of the law to the soldierly instinct of
obedience, and that judgment prove to have been correct, he
stands without any defence which the law, strictly construed,
can admit as a justification. And even though he disobey and
his view of the law prove to be correct here, while the law
vindicates him, still, unless it be a most flagrant case of illegal
orders, such as seldom arises, he may find that his legal triumph has impaired his reputation as a willing, obedient soldier.
660. No wonder that courts, when they pass judgment in
such cases, yield a willing ear to the promptings of humanity,
and place, so far as possible, responsibility for violations of the
law upon superiors who initiate them, rather than upon subordinates whose actions, in carrying into execution the orders of
those whom the law has placed over them, are wholly involuntary. "Except in a plain case of excess of a.uthority, where
at first blush it is apparent and palpable to the commonest
understanding that the order is illegal," said the court in McCall 'V. McDowell, "I cannot but think that the law should
excuse the military subordinate when acting in obedience to
the orders of his commander. Otherwise he is placed in the
. dangerous dilemma of being liable in damages to third parties
for obedience to an order, and to the loss of his commission lmd
disgrace for disobedience thereto."
~ 661. The court further remarked in this case that it was not
necessary to the ends of justice that the subordinate or soldier
should be responsible for the illegal order of a superior i that in
any case the party injured can have but one satisfaction, which
might and should be obtained from the really responsible
I.
Deady, J.,
Abbott, pp.
212-229.
RESPONSIBILITY OF SUBORDINATES.
party-the officer who gave the illegal order. In civil life the
rule is well settled otherwise, but the circumstances of the two
cases are entirely different. In civil life the two parties are
equal in the eye of the law; the subordinate, unlike the soldier,
does not act upon compulsion, but is a free agent and at liberty
to exercise his judgment in the premises.
662. As a result of the law as thus expounded, Captain
Douglass, a co-defendant who kept plaintiff, a citizen, in prison
under an illegal order of McDowell, the superior, was declared
not liable in damages, and given his costs and expenses in the
suit. McDowell was held responsible; but the rule was laid
down that although plaintiff was entitled to some damages,
they were to be compensatory only, and not vindictive or exemplary, unless it could be shown that the illegal order was
issued with e,,;l intention or from bad motive. 1
663. This opinion of a learned and experienced judge deserves careful consideration. The principle upon which it proceeds conserves at once the public interests by maintaining
discipline in the Army and the private rights of the citizen by
holding to a just responsibility those who invade them. The
case is this: On hearing, at San Francisco, California, of
the assassination of President Lincoln, one McCall, it was alleged, publicly gave expression to feelings of rejoicing, and
was arrested therefor under an order published by General
McDowell, commanding that military department. The district was not under martial law. Having been confined in
Fort Alcatraz upon arrest, where Captain Douglass commanded, McCall, upon release, brought suit against both these
military officers for his illegal arrest and imprisonment. The
court, in disposing of the case, ruled: (I) That the order was
illegal; (2) that plaintiff was entitled to recover; (3) that the
order sprang not from improper, but good motives, involving
the public peace and safety; (4) that consequently only compensatory damages were recoverable; (5) that for ill-treatJ.
p. 13
564
91.
2. 12
RESPONSIBII.,IT'l OF SUBORDINATES.
566
1
568
pp.
763~
I
RESPONSIBILITY OF SUBORDINATES.
:;70
RESPONSIBILITY OF SUBORDINATES.
57 1
572
CHAPTER XXIX.
BlI,LS OF INDEMNITY.
677. It has been the usage in England to pass bills of indemnity, aiter martial law has ceased, to protect from prosecution those who then were called upon to exercise unusual
military authority. To some extent this has been folluwed
in the United States.
678. Where martial law has been carried into execution
pursuant to positive statute, as in Ireland in 1803 and Rhode
Island in 1842, or in numerous instances in British islands and
colonies, such bills could only indemnify against prosecution
for acts done in excess of what customary practices under martiallaw would justify. The statutes, which either directly institute martial law or lodge in the chief executive authority to
exercise this power under defined circumstances, carry their
own immunity for acts done under that law, provided he does
not transcend its ordinary limits. Hence the Supreme Court
of the United States, in referring to the Rhode Island rebellion,
said that it was a state of war; and the established government
by proclaiming martial law resorted to the rights and usages of
war to maintain itself and overcome the unlawful opposition.
And notwithstanding the provision in the Federal Constitution,t securing the people in their persons, houses, papers, and
effects against unreasonable searches and seizures, and always
in any event upon duly certified warrants, the court in its
opinion justified an officer who had entered a house without
such warrant while martial law prevailed.
679: After the cessation of martial law in Jamaica in 1865,
a bill of indemnity was passed by the coloniallegislatun:. It
became an interesting question what protection this act afforded
I.
Article 4, Amendments.
5i3
574
those who, in the performance of their duty, had been instrumental in enforcing that law. Upon this point the home
Government took the advice of the law officers of the crown.
As a result the Secretary of State informed the colonial governor that the effect of the Indemnity Act was not to cover acts
of either the governor or subordinate officers, unless such as,
in case of the former, he might reasonably and in good faith
have considered to be proper for putting an end to the insurrection, or such as, in case of subordinates, had been done under
and in conformity with the orders of superior authority; or, if
done without such orders, to have been done in good faith and
under a belief, reasonably entertained, that they were proper
for the suppression of the insurrection and for the preservation
of the public peace on the island. Regarding measures taken
under military authority, the important announcement was
made that the proclamation of martial law, under the island
statute, operated within the declared district to give as complete indemnity as the Indemnity Act itself. As to civilians
who within the proclaimed district had acted bona fide for
the suppression of the rebellion-even without military orders-they had a protection secured to them by the Indemnity
Act which they might not obtain from the mere operation of
martial law. To acts beyond the proclaimed district the Indemnity Act had no applicability.
680. Thus the principle of immunity for acts under martial
law enunciated J:>y the Supreme Court of the United States impliedly, and by the English Government explicitly, was in substance the same-namely, that, martial law having been legally
instituted, for acts which reasonably and ""ith fair intendment
lie within the domain of military customs, both officers and
men are justified, and a bill of indemnity adds nothing to their
security. It is simply a statute of repose as to such cases.
681. Under this view of the law, bills of indemnity are necessary only for the protection either of those civilians who, how
worthy soever their motives, unite in martial-law measures
without being impelled by the coercion of military authority,
BILLS OF INDEMNITY.
575
576
passed, "among other things," to use the language of tht: Supreme Court of the United Statt:s, "to protect parties from liability to prosecution for acts done in the arrest and imprisonment of persons during the existence of the rebellion, under
orders or proclamations of the President, or by his authority or
approval, who were charged with participation in the rebellion.
or as aiders or abettors, or as being guilty of disloyal practi~s
.in aid thereof, or I1ny violation of the usage or laws of war." 1
684. In this case a provost-marshal had, pursuant to the
President's instructions, as it was maintained, arrested without
warrant a civilian for persuading a soldier to desert, and, after
keeping him in confinemf'nt for several months, released him
without trial. The officer, in his defence, set up the President's
-orders as his justification. The Supreme Court remarked upon
~his point that, granting that the statutes were not liable to
~ny constitutional objection, still they did not change the rule
.of pleading when the defence is set up in a special plea, or
'dispense with the exhibition of the order or authority upon
which the defendant relied. Nor did they cover all acts done
by officers in the military service of the United States simply
because they were acting under the general authority of the
jPresident as commander-in-chief of the armies of the United
':States. The acts of Congress only covered what was done
under orders or proclamations issued by the President or under
his authority; and there was no difficulty in the defendant setting forth such orders or proclamations, whether general or
'special, if there were any applicable to the case. And although
:in its decision the Supreme Court did not pass upon the constitutionality of the acts in question-that point not being before
them-it is a significant fact that these acts were referred to in
Jterms of commendation as measures which an exigency had
.rendered necessary.
685. In Mitchell v. Clark these acts of Congress were again
-carefully and fully considered. The case arose in St. Louis,
I.
Bean 'V. Beckwith, 18 Wa.lIace, p. 510; see also Beckwith 'V. BeaD,
:s Otto, p.
266.
BII.I.~
OF INDEMNITY.
S77
AtIU, Sec.
-87-
207
et seq.
2.
no U. S., p. 633.
578
BILLS OP INDEMNITY.
579
580
APPENDICES.
APPENDIX I.
HgADQUARTgRS OF THg ARMY
NATIOtorAL PALACg OF MgltIeO, September 17, 1847.
..
SR2
APPENDIX J.
known punishments in like cases in some one oC- the States of the United
States of America.
12.
The sale, waste or loss of ammunition, horses, arms, clothing, or
accoutrements by soldiers is punishable under the 37th and 38th Articles
of War. Any Mexican or resident or traveler in Mexico who shall purchase of any American soldier either horse, horse equipments, arms, ammunition, accoutrements, or clothing shall be tried and severely punished
by a military commission as above.
13. The administration of justice, both in civil and criminal matters,
through the ordinary courts of the country, shall nowhere and in no degree be interrupted by any officer or soldier of the American forces, except (I) in cases to which an officer, soldier, agent, servant, or follower of
the American Army may be a party; and (2) in political cases-that is,
prosecutions against other individuals on the al1egations that they have
given friendly information, aid, or assistance to the American forces.
14. For the ease and safety of both parties in all cities and towns
occupied by the American Army, a Mexican police shall be established,
and duly harmonized with the military police of said forces.
15. This splendid capital, its churches and religious worship, its convents and monasteries, its inhabitants and property are, moreover, placed
under the special safeguard of the faith and honor of the American Army.
16. In consideration of the foregoing protection, a contribution of
_150,000 is imposed on this capital, to be paid in four weekly installments
of thirty-seven thousand five hundred dol1ars (_37,500) each, beginning
on Monday next, the 20th instant, and terminating on Monday, the 11th
of October.
17. The Ayuntamiento, or corporate authority of the city, is specially charged with the collection and payment of the several installments.
18. Of the whole contributions to be paid over to this Army, twenty
thousand dollars ($20,000) shall be appropriated to the purchase of extra
comforts for the wounded and sick in hospital; ninety thousand dollars
($<)0,000) to the purchase of blankets and shoes for gratuitous distribution among the rank and file of the Army; and forty thousand dollars
(_40,000) reserved for other necessary military purposes.
19. This order will be read at the head of every company of United
State!! forces serving in Mexico, and translated into Span'sh for tbe
in "ormation of Mexican~.
584
APPENDIX II.
INSTRUCTIONS FOR THE GOVERNMENT OF AlUoUE! OF THE UNITSD
STATBS IN THE }<'IELD.
SacnoN I.
Martial Law.
I.
A place, district, or cc.untry occupied by n enemy stands, in
cousequence 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,
*ARTICLE XLII.
Territory is considered occupied when it is actually
placed under the autJwrity of the Jwstile army.
The occupation applies only to the terr~tory where such autlwrity is established aM in a position to assert itself.
2.
Martial law does not cease during the h s ile 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 o'nd 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 reo
quires this suspension, substitution, or dictation.
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 o~herwise ordered by the military authority.
4. Ma "tial 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 humanityvirtues adorning a soldier even more than other men, for the very reason
that he p~ssesses the power of his arms against the unarmed.
ARTICLE L. No general penalty, pecuniary or oth' wise, can be in-flicted on the population on account (Of the acts of individuals for which it
flnnot be regarded as collectrllely responsible.
"The articles in italics are from the Hague Conferenre Code. nroclaimed by the
President of the United &tatea, Aprl111, 190~ (G. 0., 52, A. G. 0., 1902).
APPENDIX II.
MilitaryUurisdiction.
5. 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~ven 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.
6. 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 administrativewhether 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 or invader.
7. Martial law extends to property, and to persons, whether they
are sUbjects of the enemy or aliens to that government.
8. 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.
9. The functions of Ambassadors, Ministers, or other diplomati~
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 itself.
10.
Martial law affects chiefly the police and collection of publi~
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.
ARTICLE LI. No tax shaU be collected except under a written order and
on the responsibility of a commander-in-chief.
This collection shau only take place, as far as possible, in accoroonctt
with the rules in existence and the assessment of taxes in force.
For every payment a receipt shau be given to the taxpayer.
ARTICLE LII. Neither requisition in kind nor ser'Vices can be demanded
from communes or inhabitants except for the necessities of the army of occupation. They must be in proportion to the resources of the country, and of
such a nature as not to involw the population in the obligation of taking part in
military operations against their country.
586
APPENDIX II.
1Jeception 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 acms against one
another in pUblic war do not cease on this account to be moral beings,
responsible to one another and to God.
16. Military necessity does not admit of cruelty-that is, the intliction 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 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.
ARncLS XXII. The right of belligerentr to adopt means of injuring
llu enemy is not unlimited.
18. When a commander of a besieged p1ace 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.
19. 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.
ARncLS XXVI. The commander of an attacking force, before commencing a bombardment, Incept in tlu case of an assault, should do all he can
to warn the authorities.
20.
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, 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 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 acknowledJOted that the unarmed citizen is to be
588
APPEXDlX
n.
The more vigorously are wars pursued, the better it is for humanity.
Sharp wars are brief.
.
30. 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
<If 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
<If justice, faith. and honor.
SgcnON II.
590
APPE~DlX
II.
59 1
592
42. 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 theywere 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.
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 nnder 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.
Punish11U!n1 of Cri11U!s against Inhabitants of Hostile Country.
APPENDIX II.
593
III.
DflSerlers.
48. Deserters from the American Anny, having entered the service
of the enemy, sutTer 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 Anny 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,
requirinl{ redress or retaliation.
Prisoners of War.
49. 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 t:fficiency and promote directly the object of the war, except
such as are hereinafter provided for; all disabled men or ufficers on the
field or elsewhere, if captured; all enemies who have thrown away their
arms and ask for quarter, nre prisoners of war, and as such exposed to
the inconveniences as well as entitled to the privileges of a prisoner of war.
ARTICLE I. The laws, rights, and duties of war apply not only to armus, bvt also to militia and 'Volunteer corps, fulfilling the following conditions:
I.
To be commanded I>ya person responsible for his subordinates;
2.
To lla'lle a fixed distincti'lle emblem recognizable at a tlistaru:e;
3. To carty arms openly; and
4. To conduct their operations in accordance with the laws and
customs of war.
In countries 1('here militia or 'Volunteer corps constitute the army, or form
/>art of it, they are included under the denumination "army,"
so. 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
feInale, the chief, and chief oflicers of the hostile government, its diplomatic agents, and all persons who are of particular and singular use
anrl benefit to the hostile army or its government, are, if captured on
-88-
594
belligerent ground, and if unprovided with a safe-conduct granted by thecaptor's government, prisoners of war.
ARTICLU XIII. Individu.als WM follow an army wulrout directly belcnging to it, such as M1IJspaper correspondents and reporl8rs, sutlers, colltract-
ors, WM fall into the enemy's hands, and whom the la.tter thinla fit to detain,
haw a right to be treated as prisOllers of war, prO'Vided they can prodl~e a
certificate from the military authorities 0/ the army they were accompanying.
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, unrler a duly authorized levy, en masse to resist the
invader, they are now treated as public enemies, and, if captured, are
prisoners of war.
ARTICLU II. The population of a territory which has not beel! occupied
who, on the enemy's approach, spontaneously take up arms to resist the invading troops, without ha1Jing tilne to organize themselves in accordance with
Article I., shall be regarded a helligerent, if they respect the laws and customs of war.
5.2. 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.
53. The enemy's chaplains, officers of the medical staff, apothecaries,
hospital nurses and servants, if they fall into the hands of the AmericanArmy, are not prisoners of war, unless the commander ha!l 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 prisonersof war, and may be exchanged if the commanrler sees fit.
ARTICLU III. The arme.d forces oJ the belligerent part~s may cOnsUt
of combatants and non-comhatants. In case of capture by the /!nemy, both
haw a right to be treated as prisoners of war.
ARTICLg xv. Relief societies for prisoners of war, which are regularly
constitutP.d in accordance with the law of the country with the object of serving
as the inJennediary for charity, shall receiw from the b/!Uigerents for themselws and their duly accredited agents 61Jery facility, withifl the bOIlMs of
military requirements and administrati1Je regulations, jor the eflectl:w accomplishment of their humane task. Delegates of thes/! sorieties may be admitted to the places of internment for the distribution of relief, as also to the
halting- plares of repatriated prisoners, if furnis.laed with a personal permit
by the military authorities, and on giving an engagement in writing to comply
with all their regulations for order and pillice.
APPENDIX II.
595
Hostages.
596
for use among his men, some striking mark or sign must be adopted to
distinguish the American soldier from the enemy.
65. The use of the enemy's national standard, tlag, 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.
ARTICLIt XXIV. Ruses of war, and the employment of methods necessary to obtain information about the enemy ana the country, are considered
allU1l1able .
66. Quarter having been given to an enemy by American troops,
under a misapprehension of his true character, be 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.
67. 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 assailant.
68. Modern wars are not internecine wars, in which the killing of
the enemy IS the object. The destruction of the enemy in modem war,
and, indeed, modern war itself, are means to obtain that object of the
belligerent which lies beyond the war.
Unneressary or revengeful destruction of life is not lawful.
60. 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.
70. 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.
ARTICLIt XXIII. Besides the prohibitions prO'llided by special con'Uefltions, it is especially prohibited(a) To employ poison or poisoned arms;
(b) To kiU or wound treacherously individuals belonging to the
hostile nation or army;
(c) To kiU or wound an enemy who, having laid down arms, or having no longer means of defence, has surrendered at discretion,
(d) To declare thai no quarter uiU be given;
(e) To employ arms, pro;ecliles, or material of a nature to caus,
superfluous injury;
(f) To make improper use of a flag of truce, the national flag, or
military tmsigns and the enemy's uniform, as weU as the
distincti'lle badges of the Geneva Con'llention;
(g) To destroy or seize the enemy's property, unless such destrudioft
or seizure be imperati'llely demanded by the necessities of war.
APPENDIX II.
597
Booty on f.he
Battle~ld.
IV. Prisoners of war arl' in IJIB "ower of the hostile gcrvernment, but not in that of the individuals or corps who captured them.
They must be huma'lely treated.
All their personal belollgings, except arms, horses, and military p.2pers,
rllmain their properly.
ARTICLE XIV. A bureall for information relative to prisoners of '/Dar
is instituted, on the commen<;ement of hostilities, in each of the beliigerent
states, and, when necessary, in the neutral countrler on whose territory belligerents have bee'l received. This bureau is intended to answer all inquiries
about prisoners of war, and is furnished by the various services concerned
with all the necessary information to enable it to keep an individual retur,.
for each prisoner of war. It is kept informed of internments and changes,
as well as of admissions into hospital and deaths.
It is also the dut)' of the information bureau to receive and collect all
objects of person':Jl use, valuables, letters, etc., found on the battle~lds or left
by prisoners who have died in hospital or ambulance, and to transmit them
to those inte.esteJ.
ARTICLE XVI. The information bureau shall have the privilege of free
postage. Letters, money orders, and valuables, as well as post,ll parcels destined for the prisoners of war or dispatched by them, shall be free of all postal
duties, both in the countries of origin and destination, as well as in thos.
they pass through.
ARTICL$
598
Gilts and reliel in kind lor prisOflBrS 01 war .;1Iall be admitUd Iree 01 all
d'Uti.es of entry and others, as weU as of paym.mls for carriage by the I{cnoemff1ent railways.
73. 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 hi'! distinKUished bravery or approbation of his humane treatment of prisoners before his capture. The
captured officer to whom they may he restored cannot wear them during
captivity.
AaTICl.S XVII. Officers taken prisoners may receive, if fl8CeSsary, the
fWl pay allowed them in this position by thrir country'r regwlatUms, the
amount to be repaid by the';r gonrnment.
74. A prisoner of war, heing a pub!ic enemy, is the prisoner of the
government, and not of the captor. No ransom can he paid by a prisoner of war to his individual captor or to any officer in command. The
government alone releases captivt's, according to rules prescribed by itself
I:>. Prisoners of war are subject to confinement or imprisonment
such as may he 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 he varied during his captivity according to the demands of safety.
ARTICLS V. Prisoners of 'U'ar may be interned in a town, lortress,
camp, or any other locality, and hound not to go beyond certaIn fixed limits;
but they CIIn only be clmfined as an indispensable measure 01 safety.
76. Prisoners of war shall be ft'd upon plain and wholesome food,
whenever practicable, and treated with humanity.
They may he required to work for the benefit of the captor's government, :wcording to their rank and condition.
ARTICLS VI.
7 he state may utilize the labor of prisoners of war acccrding to the';r rank and aptitude. Their tasks shaU not be excessive, afld
shan have nothmg to do 'With the mllitJry operations.
Prisoners may be authorized to work lor the public unlU:e, for private
persons, or on their own aaount.
Work done for the state shall be poid for according to the tariffs in force
for soldiers 01 the natwnal army employed on similar tasks.
l-llken the work is for uther branches of the public servia or for pri'VClte
persons, the conditions shaU be seuled in agretmU'nt 'With the military authoritie.f.
The wages of the prisoners shaU go towards improvitJg their positio_, and
the balance shaU be paid them at the time 01 their release, after ckdtu:ting the
aJst of their maintenance.
ARTICLE VII. The government into whose hands prisoners of 1ror haw
/all.en is bound to ma';ntain them.
APPENDIX JI.
599
600
So. 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.
S~ON IV.
Partisans.
81. 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.
Armed Prowlers, Not Belonging to Hostile Army.
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 vocations, 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 or pirates.
Scouts.
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.
Armed Prowlers.
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.
War-Rebels.
85. 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 pris-
APPENDIX II.
60.
oners of war; nor are they if discovered and secured before their conspiracy has matured to an actual rising or armed violence.
SSCTION V.
Safe-CoM""t.
86. All intercourse between the territories occupied by belliger.
ent armies, whether by traffic, by letter, by travel, or in any other
way, ceases. This is the general rule, to be observed without special
proclamation.
Exceptions to this rule, whether by safe-conduct, or 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 punishable.
87. 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
eafe-conduct is declined. Such passes are usually given by the supreme
authority of the state, and not by subordinate officers.
Spies.
88. A spy is a person who secretly, in disguise or under false pre
tence, seeks information with the intention of communicating it to the
enemy.
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 the
enemy.
ARTICJ.R XXIX. An individtud can only be considered a spy if,
acting clandestinely or on false jwetenr-es, he obtains, or seeks to obtain, information in the zone of operations of a beUigerent, with the intention of
communicating it to the hostik party.
Thus, soldiers not in disguise who have penetrated into the zone of operations of a hostile army to obtain information are not considered spies. Similarly, the foUowing are not considered spies: soldiers or ci'lliliafls ca"yiflg
out their mission openly, charged with the tklivery of despatches tkstifled
either for their own army or for that of the enemy. To this class belong
likewise the individuals sent in balloons to tkliver despatches, and generaU,
to maintain communication between the '/ICJrious paris of an army or a ~tory
ARTICLH XXX. A spy takrn in the act cannot be punished 'lJ'ithout
In'evinus trial.
.
t:02
AKneu XXXI. .4 spy who, aftet' rejoimflg t1l8 army to 'lDhic1l 118 k10rlgs, is subsequently captured by the enemy, is tre.J.tBd as a prisOfJ4f" of 'lllGr,
and incurs no respon.oibiluj' for his previous ads of upioMge.
89. 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 suITer death.
War-Trailors.
90. 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 infonnation of any kiud to the enemy, or holds intercourse with him.
9'. The war-traitor is always severely punished. If his offence
consic;ts 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.
9J. If the citilen or subject of a country or place invaded or con
quered gi\"es inforntation to his own government, from which he is separated by the hostile anny, or to the army of his government, he is a wartraitor, aud death is the penalty of his offence.
r.uides.
93. All annies in the field stand in need of guides, anrl impress them
if they cannot obtain them otherwise.
94. No person having been forced by the enemy to serve as guide
is punishable for haying done so.
95. 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.
96. A citizen serving Yoluntarily as a guide against his own country
commits treason, and will be dealt with according to the law of his country.
97. Guides, whell it is clearly proved that they have misled intentionally, may be put to death.
98. All unauthorizerl or secret cummuniC'dtion 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 frum this law. They may
communicate with foreign parts, or with the inhahitants of the hostile
country, so far as the military authority pennits, but no further. Instant expulsion from the occupied territory would be the very least punishment for the infraction of this mle.
Captured Messengers.
99. A messenger carrying written despatches or verbal messages
from one portion of the anny, or from a besieged place, to another portion
APPENDIX II.
of the same army or its government, if armed, and in the uniform of his
army, and if captured, while doing 80, in the territory occupied by the
enemy, is treated by the captor 88 a prisoner of war. H not in uniform,
nor a 8Oldier, the circUlIllltances connected with his capture must determine the disposition that shall be made of him.
100. A mell8enger 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 a prisorer of
war, and may be dealt with according to the circumstances of the case.
Deception Permissible or Otherwise.
101. While deception in war is admitted 88 a just and neceBBarY
means of hostility, and is consistent with honorable warfare, the common
law of war allows even capital puniffiment for clandestine or treacherous
attempts to injure an enemy, because they are 80 dangerous, and it is 80
difficult to guard against them.
102. The law of war, like the criminal law regarding other offences,
makes no differenee on account of the difference of sexes, con, erning the
spy, the war-traitor, or the war-rebel.
103. 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, a great distance from
it, by the chief commander of the army in the field.
104. A succeB8ful spy or war-traitor, safely returned to his own
army, and afterwards captured 88 an enemy, is not subject to punishment
for his acts 88 a spy or war-traitor, but he may be held in closer custody
88 a person individually dangerous.
SJlCTION VI.
Exchange of Prisoners.
105. Exchanges of prisoners take place-number for number-rank
for rank-wounded for wounded-with added condition for added condition-such, for instanee, 88 not to serve for a certain period.
106. In exchanging prisoners of war, such numbers of persons of inferior rank may be substituted 88 an equivalent for one of superior rank
88 may b9 agreed upon by cartel, which requires the sanction of the government, or of the commander of the army in the field.
107. A prisoner of war is in honor bound truly to state to the captor
his rank; and he is not to 8lisume a lower rank than belongs to him, in
order to cause a more advantageous exchange, nor a higher rank, for the
pu pose of obtaining better treatment.
Offences to the contrary have been justly punished by the commanders of rel~ed prisoners, and may be good cause for refusing to release such prisoners.
604
Flags oj Truce.
III. The bearer of a flag of truce cannot insist upon being admitted
He must always be admitted with great caution. Vnnecessary f~ql1ency
is carefully to be avoided.
ARTICLU XXXII. An indit'idual is considered as bear;"#; a flag oj
truce wlw is authorized by tme oj the beUigerenls to enter intc communiaUion
with the other, an.i who carries a white flag. He has a right Ie inviolability,
as '/&eU as the trumpeter, bugler, or drummer, the flag-bearer, and the interpreter wlw may accompany him.
ARTICLR XXXIII. The chiej to whom a flag oj truce is sent JS not
obliged to receivt it in all circumstances.
He calf, take aU steps necessary Ie frrevtnl 1M envoy taking advantage
oj his mission Ie obt<lin in,formation."
In case of abuse, he has tile right Ie detain the envoy temporarily.
112.
If the bearer of a flag of truce offer himself during B n engagement, he can be admitted as 11 very rare exception only. It is no breach
of good faith to retain such flag of truce, if admitted during the engagement. Firing is nut required to cea!lC on the appearance of a flag of truce
in battk
113.
If the bearer of a flag of truce, presenting himself during liD
engagement, is killed or wounded, it furnishes no ground of complaint
whatever.
114.. If it lie discovered, and fairly proved, that a flag of truce has
been abused fCJr surreptitiously obtaining military knowledge, the bearer
of the flag thus abusing his sacred character is deemed a spy.
APl'BNDlX II.
605
SUCTION
VII.
The Parole.
119. Prisoners of war may be released from captivity by exchange,
and, under certain circumstances, also by parole.
ARTlCLB X. Prisoners of war may be set at liberty on parole if the laws
of their country authorize it, and, in SUh a case, they are bound, on their
personal honor, .iC1upulously to fulfiU, both as regards thei,' own gO'llernment
and the gOl'enzmenl by whom they were made prisoners, the enga,~ements they
haw contracted.
In svdJ cases, their own gO'llernmem sh!IU not require of nor aaept from
them any rerWce incompatible witla the parole gi1len.
120: 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 bel"n dismissed, wholly or partially, from the power of
the captor.
606
ARTICLll XI. A prisoner of war can not be forced to accept his liberty
on parole; similarly the hostile government is not obliged to assent to the
prisoner's request to be set at liberty on parole.
12I. The pledge of the parole is always an individual, but not a
private act.
122. 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 the parole.
123. Release of prisoners of war by exchange is the general rule;
release by parole is the exception.
124.
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 the
~lligerents.
ARTICL~ XII.
Any prisoner of war, who is liberated on parole and
recaptured, bearing arms against the gcrvernment to whom he had pledged
his honor, or against the allies of that government, forfeits his right to be
treated as a prisoner of war, and can be brought before the courts.
125. 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.
126. 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.
127. 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.
128.
No paroling on the battlefield, no paroling of entire bodies
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.
129. 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.
130. 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
APPENDIX II.
of breaking the parole are patent acts, and can be visited with the
punishment of death; but the pledge does not refer to internal se~
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 employed.
131.
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.
132. 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.
133. 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.
134. 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.
l'ases
SSCTI0N VIII.
A rmistice-Capitulatioft.
135. 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.
136. If an armistice be declared, without conditions, it extends no
farther 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.
ARncLB XXXVI. An armistice suspends military operations by
mvtval agreement between the beUigerent parties. 1/ its duration is not
fixed, the beUigerent parties can resume operations at any time, provided
always the enemy is warned within the time agreed upon, in accordance with
the terms 0/ the armistice.
137. 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.
608
APPENDIX ll.
609
IX.
Assassination.
148. The law of war does not allow proclaiming either an individual
belonging to the hostile army, or a citizen or a subject of thc hostile government, an outlaw, who may be slain without trial by any captor, any
more than the modem 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 rewads for the assassination of enemies, as relapses into barbarism.
S~CTION
X.
Insurreetion.
149.
~rnment,
Insurrection is the rising of people in arms against their govor a portion of it, or against one or more of its laws, or against
81-
610
APPENDIX II.
611
612
ORIGINAL CoNVBNTION.
ARnCLB I. Ambulances and military hospitals shall be acknowledged
to be neuter, and as such shall be protected and respected by belligerents
-so long as any sick or wounded may be therein.
Such neutrality shall cease if the ambulances or hospitals should be
held by a military force.
ART. II. Persons employed in hospitals and ambulances, comprising
the staff for superintendence, medical service, administration, transport
-of wounded, as well as chaplains, shall participate in the benefit of neutrality, whilst so employed, and so long as there remain any wounded to
bring in or to succor.
ART. III. The persons designated in the preceding article may, even
after occupation by the enemy, continue to fulfill their duties in the
APPENDIX IL
613
614
ARTICL~
I.
J. C. K~LTON,
Aditd4fJt-Gemral.
APPENDIX 111.
61 5
APPENDIX III.
The Brussels Project of an International Declaration Concerning the Laws and Customs of War.
ARTICLS I. A territory is considered as occupied when it is actually
placed under the authority of the hostile anny.
The occupation only extends to those territories where this authority
is established and can be exercised.
ART. II. The authority of the ~egal power being suspended, and
having actually passed into the hands of the occupier, he shall take every
step in his power to re-establish and secure, as far as possible, public
safety and social order.
ART. III. With this object he will maintain the laws which were in
force in the country in time of peace, and will only modify, suspend, or
replace them by others if necessity obliges him to do so.
ART. IV. The functionaries and officials of every class who at the
instance of the occupier consent to continue to perform their duties,
shall be under his protection. They shall not be dismissed or be liable
to summary punishment [punis disciplifUJirement] unless they fail in fulfilling the obligations they have undertaken, and shall be handed over to
justice only if they violate those obligations by unfaithfulness.
ART. V. The army of occupation shall only levy such taxes, dues,
duties, and tolls as are already established for the benefit of tbe state or
their equivalent, if it be impossible to collect them, and this shall be done
as far as possible, in the fonn of, and according to, existing practice. It
shall devote them to defraying the expenses of the administration of the
country to the same extent as was obligatory on the legal government.
ART. VI. The anny occupying a territory shall take possession only
of the specie, the funds, and marketable securities, etc. [-valeurs nigibles],
which are the property of the state in its own right, the MIXits of arms,
means of transport, magazines, and supplies, and, in general, all the personal property of the state which is of a nature to aid and carry on the
war.
Railway plant, land telegraphs, steam and other vessels not included in
cases regulated by maritime law, as well as MpOts of anns, and generally
every kind of munitions of war, although belonging to companies or to
private individuals, are to be considered equally as means of a nature
to aid in carrying on a war which cannot be left by the anny of occupation at the disposal of the enemy.
Railway plant, land telegraphs, as well as the steam and other vessels
above mentioned, shall be restored, and indemnities be regulated on the
conclusion of peace.
616
ART. VII. The occupying state shall only consider itself in the light
of an administrator and usufructuary of the public buildings, real property,
forests, and agricultural works belonging to the hostile state and situated
in the occupied territory. It is bound to protect these properties [ttmdu
de ces proprietes], and to administer them according to the laws of usufruct.
ART. VIII. The property of parishes [communes], of establishments
devoted to religion, charity, education, arts, and sciences, although belonging to the state, shall be treated as private property.
Every seizure, destruction of, or willful damage to, such establishments, historical monuments, or works of art or of science should be
prosecuted by the competent authorities.
OJ Those Who Are to Be Recognized as BeUigerents; Of Combatants and
Noncombatants .
ART. IX. The laws, rights, and duties of war are applicable not only
to the army, but likewise to militia and corps of volunteers complying
with the following conditions:
I. That they have at their head a person responsible for his
subordinates ;
2. That they wear some settled distinctive badge recognizable
at a distance;
3. That they carry arms openly; and
4. That in their operations they conform to the laws and customs of war.
1n those countries where the militia form the whole or part of the
army they shall be included under the denomination of .. army."
ART. X. The population of a non-occupied territory who, on the
approach of the enemy, of their own accord take up arms to resist the
invading troops without having had time to organize themselve& in conformity with Article IX., shall be considered as belligerents if they respect the laws and customs of war.
ART. XI. The armed forces of the belligerents may be composed of
combatants and noncombatants. In the event of being captured by the
enemy, both one and the other shall the ell.joy the rights of prisoners of war.
ART. XVII. In the like case all necessary steps should be taken tospare, as far as possible, buildings devoted to religion, arts, sciences, and
charity, hospitals, and places where sick and wounded are collected, 00
condition that they are not used at the same time for military purposes
It is the duty of the besieged to indicate these buildings by special visible
signs, to be notified beforehand by the besieged.
617
Al'PENDIX III.
ART. XVIII. A town taken by storm shall not be given up to' the
victorious troops to plunder.
APPENDIX IV.
Extract from the Laws of War Proposed by the Institut de
Droit International, Oxford, September, 1880.
Defini.tion.-A territory is considered to be occupied where, as the result of its invasion by an enemy's force, the state to which it belongs has
ceased in fact to exercise its ordinary authority within it and the invading
state is alone in a position to maintain order. The extent and duration
of the occupation are determined by the limits of space and time within
which this state of things exists.
Rules oj Conduct witk Regard to Persons.
Since new relations arise from the provisional change of government,
it is the duty of the occupying military authority to inform the inhabitants of the occupied territory as soon as possible of the powers which it
exercises, as well as of the local extent of the occupation. The occupier
must take all measures in his power to establish and to preserve public
order.
With this object the occupier must, so far as possible, retain the laws
which were in force in the country in the time of peace, modifying,
suspending, or replacing them only in case of necessity. The civil
functionaries of every kind who consent to continue the exercise of their
functions are under the protection of the occupier. They may be dismissed, and they may resign at any moment. For failing to fulfil the
obligations freely accepted by them, they can only be subjected to disciplinary punishment. For betraying their trust they may be punished
in such manner as the case may demand.
In emergencies the occupier may require the inhabitants of an occupied
district to give their assistance in carrying on the local administration.
As occupation does not entail a change of nationality on the part of
the inhabitants, the population of an occupied country cannot be compelled to take an oath of fidelity or obedience to the enemy's power. Persons doing acts of hostility directed against the occupier are, however,
punishable.
Inhabitants of an occupied territory who do not conform to the orders
of the occupier can be compelled to do so.
The occupier cannot, however, compel the inhabitants to assist him
in his works of attack or defence, nor to take part in military operations
against their own country.
Moreover, human life, female honor, religious beliefs, and forms of
worship must be respected. Interference with family life is to be
avoided.
NOTB.-C8refut e""mlnation of A.ppendlces III. and IV. wl1l show where much
of the material and many of the Ide.. came from that are embodied In the article.
orthe Hague Conference Code which appear In Appendix n.
APPENDIX.
V.
APPENDIX V.
STATE OP SOWS IN FRANCB.
620
MILITARY GOVERNMENT
.urn
lURTIAL LAW.
ward before the Court of Assizes, etc., and this because, Geoffroy not being
a soldier or having any military character, there had been an exceeding
of jurisdiction and a violation of Articles LUI. and LIV. of the Charter,
etc., etc.; the same decree recognizing, nevertheless, the legality of the
legislation regarding the state of siege.
If we go back to the epoch when this decision was rendered, to the particular circumstances which called it forth, it is impossible not to recognize that it cannot in the future have the force that the decisions of the
Supreme Court would ordinarily give it. The decree of the 19th of June
can evidently, let us say, be cOfi!'1idered only as an act of policy for the
moment, having no other object than to quiet feeling and not to invalidate impliedly one or more portions of a law, all the principles, all the
provisions of which are bound together so closely and are so inseparable
that to destroy a single one of them would be to annul all. This decree
finally bears the stamp of the most striking anomaly. How, indeed, is
it possible to recognize the legality of legislation on the state of siege
that of the jurisdiction of military tribunals, the legality of the suspension
of ordinary jurisdiction, and to desire, on the other hand, that the latter
exist, even though for the trial of a class of individuals? As has been well
said, the true principle of the state of siege lies above all in the necessity
for defence j this is an absolute principle that all states, all governments,
despotic, republican, or constitutional, have never contested. Suppose
the Court of Appeal itself closed in a place that is invested, besieged,
bombarded; its power has ceased, its jurisdiction exists no more than does
that of the ordinary courts or other ordinary tribunals. The court-martial
alone has jurisdiction; it acts even when the enemy is in the breach, and
when he even enters the place. In such cases an appeal is not thought of;
there is no appeal, there can be no appeal other than to the clemency of
~he conqueror.
This is the spirit, the letter of the law regarding the state
of siege; the commander of the place is the sole, the only authority who
gives orders and the only one to whom one owes obedience; there cannot,
therefore, be side by side with his jurisdiction, or that which emanates
from him, any other jurisdiction. Admit for one instant this other jurisdiction and there will no longer be commanders who answer, on the penalty of their heads, for th~ safety of all in the place, often for the safety
of the state.
We reason here, as is well understood, in a general way'in regard to the
slaU of siege and in the strict meaning of that situation; the Court of Appeal has, on the contrary, seen only a particular case, the mitigating circumstances of which have dictated its decree which, once more, cannot
be considered as a decision of principle without the greatest danger to
the defence of the state.
APPl:NDIX.
v.
6:H
Articles LIII. and LIV. of the Constitution are urged against this:
b
~..
.. ARTICLS
LIII.
.. ART. LIV. In consequence, extraordinary commissions and tribunals cannot be created by virtue of any right or under any name whatever."
..
These articles had as an object to prevent the revival of the military
commissions of the Empire, of the prevotal courts of the Restoration,
finally, of any extraordinary improvised jurisdiction. But the permanent
m litary courts are not extraordinary commiss ons newly and specially
created for certain cases; they are sanctioned in law; the Court of Appeal
decided a hundred times before the decree of the 19th of June that the
Constitution had not abolished them; that they were the ordinary tribunals of the military as naval courts-martial are the tribunals of the naval
service, and by virtue of the decree of November 12, 1806, the judges of
offences committed in port by non-military persons. Finally, during the
state of siege, the military tribunals become the ordinary tribunals, and
since the decree of June 19, 1832, itself recognized the legality of the state
of siege, it could not, without self-contradiction, fail to recognize the
jurisdiction that this situation brings about.
The objection, based upon the fact that under the government of the
Constitution the crinIe of sedition committed by non-military persons is
within the jurisdiction of the Court of Assizes, cannot here have the
slightest consideration, as it is not a question, we repeat, of ordinary times,
when sedition may be committed, but of a time of war, of the state of
siege, in short, which is war in the very height of its action. As to the
objection that the state of siege resulting from a sedition in an interior
commune differs from the state of siege of a fortified place invested and
besieged by an enemy, the very legislation regarding the state of siege
destroys it completely, since the definition of the state of siege comprises
both cases. But let us quote here Mr. Voysin de Gartempe, who filled the
office of attorney-general of the Court of Appeal on the 19th June, 1832, in
the appeal of Geoffroy:
"What! the necessity for the state of siege, recognized by the laws,
should be least against the aggression of enemies from the inside? What
difference is there between the war which is at the foot of the ramparts
and that which breaks out ~thin the very walls of the city? What!
Because French blood has been shed by French hands, the government will not be able, in order to stop its being shed, to use, on its own
responsibility, all the means which belong to it? Civil war is, then,
ess odious than foreign war? Does it no longer exact means of repres-
622
sion that are quite as prompt, quite as powerful? To allow the facts to
speak suffices for an answet.
"When lately the fires of sedition were smouldering in the provinces of
the west, when. they were being overrun and ravaged by armed bands
few in numbers, what did the deputies of these provinces ask? What did
the general councils of these departments say? What did the press of
the opposition repeat with great outcry? From every side they called for
the placing of the state of siege or accused of feebleness, of timidity, the
government which hesitated to employ this means, the only one, they
!laid, which was proportionate to the evil," etc., etc.
Extract from the Law Concerning the Preservation and Classifying of Fortified Towns and Military Posts, the Police of
Fortifications and Other Objects Relative thereto, Given
at Paris, July 10, 1871.
Decree of the Nation'll Assembly of May 24. June 25, 27, and 30, July
4, 5, and 8, [791.
2,
NOTIt.-Qn the 2Uh of June. 1818, in the midst of the terrible insurrecUc>n that
eovered Paris with blood, Mr. PuC'al Dupont proposed to the CousUtuent Auembly
to place Paris lu a state of siege. The state of siege was voted for. It lasted until
oc:tober 19, 1848. This time the state of slelfe covered with its shadow the rvinlf to
courts-martial of the jurisdiction of cilizens ROID .anctioned bfl 111. Coort 0 APPftIl.
This was followed the 18th of June, 18(9, by a law plaCIng Pans alfain in a atate of
siege, proposed and pRssed at the same session; and, to show how events bring
changes, the same M. arllon Barrot, keeper of the seal. who introduced this law,
was the advocate who pleaded so eloquently for M. Geoffroy, as narrated in the
tat in 1882 (Dictionaire de la Conversation, arUde State orSiege).
APPENDIX
62 3
V.
Extract from the Decree of the 24th December, IBu, Relative to the Organization and Service of the Military Staff
of Fortresses.
CHAP1'ItR
I.-General Provisions.
ART. LIII. The state of siege is determined by a decree of the emperor, by investment, by an attack in force, by a surprise, by an insurrection, or, finally, by mustering troops within the radius of investment
without the authority of the magistrates.
In the case of a regular attack, the state of siege ceases only after the
works of the enemy have been destroyed and the breaches put in a state
of defence.
In these different cases the duties and obligations of commanders of
troops are subject to the rules laid down further on, Chapter IV.
*
CHAPTSR
624
State of Siege
Can be declared only in case of imminent danger and by the Assembly
only, except in case of prorogation. rLaw of 9th August, 1849, Articles
I., II., and III.]
.
In the colonies and in Algeria the declaration of the state of siege may
be made by the governor.
In fortified towns it may be made by the military commander. [Law
9th August, 1849, Articles IV. and V.; decree 29th April, 1857, Article X.]
The state of siege has as a result the transfer to the military authorities of the powers with which the civil authorities are clothed for the
maintenance of order and police. [Law 9th August, 1849, Article VII.]
Only the Assembly has the right to raise the state of siege when it has
been declared or maintained by it.
Nevertheless, in case of prorogation, this right belongs to the President
of the Republic. [Law 9th August, 1849, Article XIV
ARTICLB II. The National Assembly has the sole power to declare
the state of siege with exceptions mentioned below.
The declaration of the state of siege designates the communes, the
districts, and the departments to which it is applied and may be extended.
ART. III. In the case of prorogation of the National Assembly, the
President of the Republic may declare the state of siege by the advice of
the Council of Ministers.
The President, when he has declared the state of siege, must immedi
ately notify the commission instituted by virtue of Article XXXII. of the
Constitution of the fact, and, according to the gravity of the circumstances, call the National Assembly together.
The prorogation of the Assembly ceases as of right when Paris is
declared in a state of siege.
The National Assembly, as soon as it has assembled, continues or
raises the state of siege.
APPE:-lDIX V.
Article X. of the decree of April 29, 1857, is thus worded: "In Algeria the state
of sie~ re.nlts from the cues enumerated in Article XXXIX. of the decree of
August if). 1853. or from the promulgstioD of. decree Issued by reason of emergency
hy the governor-genera!."
-40-
626
XII. The National Assembly has the sole right to raise the
state of siege when it has been declared or continued by it.
Nevertheless, in case of prorogation, this right will appertain to the
President of the Republic. The state of siege declared in conformity
with Articles III., IV., and V. may be raised by the President of the
Republic, provided it has not been continued by the National Assembly.
The state of siege declared in conformity with Article IV. may be
raised by the governors of the colonies as soon as they believe quiet to be
sufficiently restored.
ART. XIII. After the raising of the state of siege the military tribunals continue to take cognizance of crimes and misdemeanors, the prosecution of which has been turned over to them.
ARTICLS
* * *
APPENDIX VI.
The matter contained In this Appendix Is the latest authoritative
"Ilubllcatlon by the War Department ot the "Geneva Convfontlon" and
~t the "Instructions for thE> Government of Armies ot the United
.:States In Time ot War." It Is contained In the "Field Service Regulations:' Issued just as this book was going to the pre...
628
MILITARY GOVERNMENT
.urn
MARTIAL LAW.
ADDITIONAL ARTICLES...
ART. I. The persons designated In Article II. of the Convention.
shall continue, after the occupation by the enemy, to take the necllssary care of the sick and wounded In the ambulance o'r hospital
which they serve. When they request to withdraw, the commanderof the occupying troops shall flx the time of departure, which heshall not be allowed to put off for more than a brief period, In caseof military necessity.
ART. II. Arrangements shull be made by the belligerent powers
to Insure to neutralized persons fallen Into the hands of the enemy'sarmy the enjoyment of their entire salary.
ART. III. Under the conditions provided for In Articles I. and IV.
of the Convention the name "atllbulance"b applies to field hospital,!
and other temporary establishments which follow the troops on the
field of battle to receive the sick and wounded.
ART. IV. In conformity with The spirit of Articles V. of the Convention and with the reservations contained In the protocol of 1864,_
aThe additional articles now are generally accepted and have Required the force and effect of an International treaty.
lIThls Interpretation Is of especial Importance In the United States.
where the term "ambulance" Is generally applied to l\ vehicle for
the transportation of the sick and wounded.
APPENDIX VI.
lt Is explained that In the apportionment ot the burdens relating to
quartering of troops and contributions ot war an equitable allowance only shall be made for the charitable seal displayed by
inhabitants.
ART. V. In addition to Article VI. ot the Convention, It Is stipulated that. with the reservation of officers whose detention might
,be Important to the fate of arms. and within the limits ftxed by tho
-second paragraph ot that article. the wounded who may tall Into
the hands of the enemy. even If not considered Incapable ot serving.
-shall be sent back to their country after they are cured. or sooner.
if possible. on condition. nevertheless, of not again bearing arms
-during the continuance ot the war.
ART. VI. The boats which. at their own risk and peril. during
and after an engagement, pick up the shipwrecked or wounded. or
which, having picked them up, convey them on board a neutral or
'hospital ship, shall enjoy, until the accomplishment ot their mission.
the character of neutrality, 118 far as the circumstances ot the en-gagement and the position ot the ships engaged will permit.
The appreciation of these circumstances Is Intrusted to the human-Ity of all the combatants. The shipwrecked and wounded thus picked
up and saved must not serve again during the continuance of the war.
ART. VII. The religious. medical, and hospital personnel of allY
-captured vessel are <reclared neutral, and. on leaving the ship, may
Temove the articles and surgical Instruments which are their private property.
ART. VIII. The personnel designated In the preceding article
'IIlust continue to tulftll their functions In the captured shIp, assisting In the removal of the wounded made by the victorious party;
they wl11 then be at liberty to return to their country, In conformity with the second paragraph ot the ftrst additional article.
The stipulations ot the second additional article are applicable to
the salaries of this personneL
ART. IX. Military hospital ships remain subject to the laws ot
-war In all that concerns their equipment and supplJes; they become
the property of the captor, but the latter must not divert them trom
their special assignment during the continuance of the war.
ART. X. Every merchant vessel, to whatever nation It may be1ong, loaded exclusively with sick and wounded being removed, I.
protected by neutrality; but the mere fact. noted on the ship'. books.
-that the vessel has been visited by one of the enE:my's cruIsers. ren-ders the sick and wounded Incapable of serving during the continuance ot the war. The cruiser shall eVE:n have the right of putting
~n b'1l.rd an officer to accompany the convoy, and thus verify the
-good lalth of the operation.
If \ he merchant ship also carries a cargo. her neutrality will stili
llrote ~t It, provided that such cargo Is not of a nature to be contlscatE:d by the belligerent.
Th,., be11lgerents retain the right to prohibit to neutralised vessel
11 cllmmunlcatlon and any course which they may deem prejudicial
to tb e secrecy ot their operations. In urgE:Dt cases special convenl;lonl may be entered Into between commanders In chief, In order to
630
APPENDIX VI.
TH~
63 1
666. The Convention between the United Btates and certain powerll for the adaptation to maritime warfare of the principles of the
Geneva Convention. signed at The Hague, July 119, 1899, and published In G. O. No.4. A. G. 0., 1902, Is as follows:
.
ART. I. Military hospital shlp&-that Is to 8ay, ships constructed
or assigned by state. specially and solely for the purpose of ull1stIng the wounded, sick. or shipwrecked. and the namell of which lIhall
have been communlcatf'd to the beilltrerent powen at the beginning
or during the course of hostllltiell, and In any case before they arll
employed. shall be respected and cannot be captured while hOlltllItles last.
Thelle lIhlps. moreover, are not on the Bame footing as men-of-war
as regards their stay In a neutral port.
ART. II. Hospital Ilhlps equipped wholly or In part at the cOllt of
private Indlvldualll or offtclally recognized relief 1I0cietiell lIhall lIkewille be respected and exempt from capture, provided the belligerent
power to whom they belong has given them an oftl.clal oomml_lon
and has notified their names to the hostile power at the commencement of or during hostilities. and In any case before they are
employed.
Tllese ships should be furnished with a certificate from the competent authorities, declaring that they had been under their control
while fitting out and on final departure.
ART. III. Hospital ships, equipped wholly or In part at the COBt
of private Individuals or oftl.clally recognized societies of neutral
countries, shall be respected and exempt from capture, If the neutral power to whom they belong has given them an offtclal commission and notified their names to the belligerent powers at the commencement of or during hostilities, and In any oaae before they are
employed.
ART. IV. The shipe mentioned In Articles L, II., and III. lIhail
al'tord relief and asBlstance to the wounded, sick, and shipwrecked
of the belligerents IndependbntlY of their nationality.
The governments engage not to use these ships tor any military
purpose.
These ships mUllt not In any way hamper the movements of the
combatants.
During and after rn engagement they will act at their own risk
Bnd peril.
The belligerents will have the right to control and visit them: they
CBn refuse to help them, order them off, make them take a certain
course, and put a commissioner on board: they can even detaln them.
If Important circumstances require It.
As far as posllible the belligerents shall Inscribe In the Bailing
papers of th .. hospital ships the orden they gIve them.
ART. V. The military hospital ships shall be dlstinguillhed by
being painted white outllide with a horizontal band of green abouf
B meter and a half In breadth.
The ships mentioned In Articles II. and m. shall be distinguished
by being paInted white outllide with a horizontal band of red about
a meter and a half In breadth.
632
The boats or the ships above mentioned, aB also small craft which
may be used for bospltal work, shall be dlstlnlrulshed by alrnllar
painting.
All hospital ships shall make themselves known by holsllng, together with their national flag, the white flag with a red crOBB provided by the Geneva Convention.
ART. VI. Neutral merchantmen, yachts, or vessels, having, or takIng on board, sick, wounded, or shipwrecked or the belligerents, can
not be captured ror so doing, but they are liable to capture for any
violation or neutrality they may have commItted.
AHT. VII. The relllrlouS, medical, or hospital statr or any captured ship Is Inviolable, and Its members can not be made prisoners
or war. On leaving the ship, they take with them the objects and
surgical Instruments which are their own private property.
This statr shall continue to dlscharg/> its duties while neceBBary,
and can afterwards leave when the commander In chief considers
It possible.
The belligerents must guarantee to the statr that has faUen Into
their hands the I:njoyment or their salaries Intact.
ART. VIIi. Bailors and soldiers who are taken on board when sick
or wounded, to whatever nation they belong. shall be protected and
looked after by the captors.
ART. IX. The shipwrecked, woundt.d, or sick of one of the belligerents who rall Into Lhe hands of the other, are prisoners or war.
Th/> captor must decide, accordIng to circumstances, If It Is best to
keep them or send them to a port of his own country, to a n6utral
port, or even to a hostile port. In the last case, prisoners thus repatriated can not serve as long as the war lasts.
ART. X. (Excluded.)
ART. XI. The rules contained In the above artloles are binding
only on the contracting powers In case of war between two or more
or them.
The said rules shall ceaBe to be blndlnlr rrom the time when, In a
war between the contracting powers. c.ne of the belligerents Is joined
by a non-contracting power.
ARTICLE
XII.
IS~'TRUCTIO~S
SECTION
I_Mlllt&1'7 so...e.....ent_Mdlta1'7
ae-.tt7_HOlItllltiea.
Jal'ladJetloa-lIWta1'7
MILITARY GOVERNMENT.
667. A place, dlBtrlct, or country occupied by an enemy Btan_ III
eonBeQuence of that fact, uuder the military government of the Invading or occupying army, whether any proclamation declaring the
Bame, or A.ny pUblic warning to the InhabltantB, haa been luued or
not. Military government I. the Immediate and cl1rect elfect and
conBeQuence of occupation, whIch IncludeB only the ttlrrltory where
the authority of the hostile army I"! eBtabllshed and In a posItion
to be exercised.
The presence of a hOBtlle army proclalmB ItB mIlitary government.
668. Military government does not ce8.8e during the hostile occupation. except by Bpeclal proclamation IBBued by the commander-Inchief, or by Bpeclal mention 111 the treaty of p&RCe termInating the
war and stipulating occupation of placeB or of a territory pending
the fulfillment of certain agreementB.
669. Military government In a hOBtlle country conslBtB In the SUBpension, by the occupyIng military authorIty, of the domeBtlo admInIstration and government In the place or terrItory ocoupled; In the
substitution of military rule and force for the Bame; and In the dlotatlon of general lawB, aB far 8.8 milItary neceulty reQUlreB thlB SUBp!=nBlon, lIubBtltUtlOn, and dictation.
670. Military government applleB only to foreign territory and to
domestic territory In which enemIes, or rebels treated as belllarerents, llre operating. The military commandbr Is, with rare exceptlons, amenable for hIs acts In acoordanoe with the law. and oustomB of war only. Military government must be carefully dlBtlngulBhed from martial law, which Is of domeBtic application only; for
In the latter case the legality of the actB of a military olJlcbr may
be QueBtloned not only by hl8 military Buperlors, but alBo by tbe
civil trlbunalB of the terrItory In which Buch martial law may be
exerclBed.
.
671. Military government Blmply 18 military authority exbro".ed
In accordance with the lawB and uaageB of war. MilItary oppr...lon
Is not military government; It IB an abuBe of the power whIch the
law of war confera. AB military government Is carried on by military force, It Is Incumbent upon those who admlnlst&r It to be
634
strictly guided by the principles of justice, honor, and humanltyvirtues adorning a soldier even more than other men. for the \'ery
reason that he possesses the power of his arma against the unarmed.
672. Mllltary government should be less stringent In places and
countries fully occupied and fairlY submissive. Much j{reater severIty may be exercised In places or regions where actual hostlllties
exist, or are expected and must be prepared for. Its most complete
sway Is allowed when tace to tace with the enemy, because of the
absolute necessities ot the case. Even In the commander'. own country, the duty ot stopping the progress of thE> Invasion and eventually expelling the enemy rises superior to all ordinary considerations.
673. All civil and criminal law of the places and territories captured from the enemy shall continuE: to take Its usual course under
mllltary government, unless, In case of absolute Impediment. the
same be Interrupted or modified by order ot the occupying military
power; but all the tunctlons ot the hostile government-legislative.
expcutlve. or administrative-whether of a general. provincial. or
local character. cease under military government. or continue only
with the sanction, or. It deemed nbcessary, with the participation
ot the Invader.
The commander of the occupying forces may proclaim that the
administration ot all civil and criminal law shall, either wholly or
In part. continue as In time of peace.
The commanding officer may requirE> the magistrates and other
civil officials of the occupied territory to take an oath ot temporary
allegiance or an oath of fidelity to the victorious government or rulers. as a condition to the continuance of their functions.
But
whether such oath has bben taken or not, the people and their officials owe strict obedience, at the peril of their lives. to the military
government of the occupying power as long as It holds sway over
the district or country.
674. MIlitary government applies to propbrty and to person".
whether the persons are subjects of the enemy or aUens to his
country.
675. Consuls, among American, European, and other clvlUsed
nations. are not diplomatic agents. Nevt.rtheless, their offices and
persons will be subjected to mllitary government In cases ot urgent
necessity only; their property and business are not exempt. Any
dellnquf:ncy they commit against the estabUshed mllltary rule may
be punished as In the case of any other Inhabitant, and such punishment turnlshes no reasonable ground tor International complaint.
676. The functions of ambassadors. ministers, or other diplomatic
agents accredited by neutral powers to the hostlle government ceaM,
so tar as regards the displaced government; but the conquering or
occupying power usually recognises them aa temporarIly accredited
to Itsblt.
1177. Mllltary government affects chlefiy the poUce ot ootlUpled
territory and the collection of pubUc revenue, whether at the ....te
Imposed by the eXPblled government or according to a new scal.
prescribed by the Invader. Its princIpal object Is to prcwlde for
the security of the Invading army and to contribute to Its support
and efficiency,
APPENDIX VI
678. Whenever feasible, military govtornment .Is carried out In
l!ll.8ell of Indl\'ldual oenders by mlllt&rJ' courts. Sentences of death
shall be executed only with the approval of the President, provld6d
the urgency of the case does not require a speedier execution, and
then onl~' with the approval of the commander In chief.
MILITARY JURISDICTION.
Military juriSdiction Is of two kinds: ftJ"st, that which Is
conferred and defined by statute; second, that which Is derived from
the common 10.'1'1' of war. MIlitary otrences under the statute law
must be tried In the manner therein directed; but military ol'fenoes
which do not come within the statute must be tried and punished
under the common law of war. The character of the courts 'Which
e7'--tllse these jurisdictions dependS upon the local laws of each partm ~l' country.
In the organised and active land forces of the United States the
first Is exercised by covrt6-_nial, 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 miUta", OOlIIIIKIMoM.
679.
MILITARY NECESSITY.
Military necessity, as understood by modern civilised nations,
eonslsts In the urgency of those measures which are Indlspenaable
tor securing the end of the war, and which are lawful according to
the modern law and usages of war.
681. Military neceRslty admits ot all dlreet destruction at lite or
lIlnb 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 of every enemy of Importance to the hostile government, or ot pE>cullar danger to the
I!aptor; It nllows of all destruction of property, and obstruction of
the ways and channel'! of traffic. travel, or communication. and of
all Withholding of sustenance or means of life from the enemy; of
the appropriation of whatevE>r an enemy's country atrords 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 regardlnlf agnements entered Into during the war, or supposed by the modern law of war to exist.
682. Military necessity does not admit of cruelty-that Is, the Inftletlon of sutrerlng for the sake of sutrerlng or for revenge; nor of
maiming or wounding E>xcept In fight, nor of torture to extort contesslons. It does not admit of the use of polson In any way, nor of
the wanton devastation of a district. It II.dmlts of deception, but
41!Iclalms acts of perfidy; and. In general, military necessity does not
Inelude any act of hostility Which makes the return to peac6 unnecessarily dlftlcult.
HOSTILITIES.
680.
APPENDIX VI.
ren.t-,
APP~DIX
VI.
PUNISHMENT OF CRIMES.
712. There exists no law or b04y of authoritative rules of action
between hostile armies except that branch of the law of nature and
nations which Is called the law and usacee 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.
718. All wanton violence committed against persons In the Invaded country. all destruction of property not commanded by the
640
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 penalt;r of death. .or
such other severe punishment as may see.m adequate for the gravIty of the offence.
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 kllieu on thE> spot by such superior.
714. All captures and booty belong, according to the modern law
of war, primarily to the government of the captor.
Neither officers nor soldiers '\re allowed to make use of their poslUon or power In the hostile country for private gatn, nor even for
commercial transactions otherwise legitimate. Off<:>nces to the oontrary committed by commissioned officers will be punished by dismissal from the military service or by such other punIshment as the
nature of the offence may require; If by soldiers. they shall be punIshed according to the nature of the offence.
PRISONERS OF WAR.
715. A prisoner of war Is a person, armed or unarmed, formIng
part of the hostile army or attached to It for active aid, and whG
has fallen Into the hands of the captor, on the field or In the hospital, by Individual 8urr<:>nder or by capitulation.
When thus captured, all soldiers of whatever species of arms; all
men belonging to a rising llIl IIW8Be of the hostile country; all wh<.
a're attached to the army for Its efficiency and promote dlreotly the
object of the war, except persons hereinafter specifically mentioned;
all disabled men and officers on the field or elsewhere; all enemies
who have thrown away their arms and asked for quarter, are prisoners of war and as such exposed to the Inconveniences as well as
entitled to the privileges pertaining to that condition.
716. Moreover, civilians who accompany an army for whatever
purpose, such as sutlers, contractors, Interpreters, and newspaper
correspondents. If captured, may be detained as prisoners of war.
The head of the hostile government and members, male or female,
of Its rE:lgnlng family, the chief officers of the hostile country. Its
diplomatic agents, and all persons of special use to the hostile army
or Its government, become prisoners of war If captured on territory
not belonging to a neutral power.
717. If the people of II. country, or of that portion thereof not yet
occupied by the enemy, rise en maue under a dUly authorized levy
to resist the Invader, they shall be considered as belligerents If they
observe the laws and usages of war, and, In case of capture. shall
be treated as prisoners of war.
"b.
No belligerent has the right to declare that he will treat
every captured man III arms of a levy ell mMH 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 at
the laws of war, and are not E:ntltled to their protection.
APPENDIX VI.
719. As soon as a man Is armed by a sovereign government and
takes the soldier's oath of ftdellty, he is a belligerent; his killinii',
.woundlng, or other warlike acta are not Individual crimes or offenses. No belligerent has II. right to declare that enemies of a cer.t&In class, color, or condition, when properly organized as soldiers,
will not be treated by him as public enemies.
720. When sovereign states make war upon each other, the law
of natlona does not Inquire Into the re8.80ns for such action, and
therefore. In regard to the treatment of prisoner!!, permits no dt>parture from the rules of regular warfare In case the prisoner!!
belong to the army of a government which the captor considers a
wanton and unjust assailant:
721. A prlllOner of war Is subject to no punishment for being a.
public enemy, nor 18 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.
722. The law of lIations knows of no distinction of color, and ;f
an enemy of the United States should enslave and 8ell any captured
persons of their army, It would be a case for the sever6llt retaliation.
If not redressed upon complaint.
The United States can not retaliate by enSlavement; therefore
death must be the retaliation for this crime against the law of
nations.
723. A prisoner of war remains answerable for his crimes committed against the captor's army or people. committed before ue
was captured, and for which he has not been punished by his own
authorities.
All prisoners of war are liable to the Infliction of retaliatory
measures.
724. Money and other valuables on the person of a prisoner,
such as watch6ll or jewelry, as well as extra clothing, are to be
regarded as the private property of the prisoner, and the appropriation of such valuables or money Is considered dishonorable, and Is
Prohibited.
Neverthel6lls, If large sums are found upon the persons of prisoner!!,
~r In their pOll8esslon, they shall be taken from them, and the surplus, atter 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 may have been placed In the private luggage of the
prisoners.
725. All oMcers, when captured, must surrender their arms to the
captor. They may be re&tored 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 oMcer to whom they may be restored can not
wear them during captivity.
7l!fl. A prisoner of war, being a public enemy, is the prisoner of
the government, and not of the captor. No ransom can be paid Ly
a prisoner of war to his IndiVidual captor or to any olftcer In com'1-
642
APPENDIX VI.
734. The obligations of belligerents In respect to the sick and
wounded are regulated by the Geneva Convention, which Is hereby
made part of these Instructions and will be fully complied wlLh
when the occasion arises.
735. The enemy's medical omcers and members of his hosplW.l
corps or sanitary service, Including the' personnel for superintendence, administration, and service of ambulances, military hospitals
and transport of wounded (by land or by water), and his chaplains.
i1hall be considered neutral and will not be made prisoners of war
unless the commanaer In chief has special reasons for detaining
them.
The conduct to be observed toward these persons, and also with
respect to ambulances, military hospitals, and hospital trains and
ships, Is prescribed In the articles of the Geneva Convention and the
Hague Peace Conference.
736. A bureau for Information relative to prisoners of war shall
be Instituted, on the commencement of hostilities, In each of the
belligerent states, and, when necessary, In the neutral countries ""
whose terrItory belligerents have been received. This bureau Is 11.tended to answer all Inquiries about prisoners of war. and Is furnished by the various services concerned with all the necessary
Information to enable It to keep an Individual return for each pr:,,oner of war. It Is kept Informed of Internments and changes, as
well as of admissions Into hospital, anu deaths.
It Is also the duty of the Information bureau to receive and collect all objects of personal use, valuables, letters. etc.. found on the
ba lellelds or left by prisoners who have died In hospital or ambulance, and to transmit tnem to those Interested.
737. Relief societies for prisoners of war, which are regularly co,,stltuted In accordance with the law of the country with the object
of serving as the Intermediary for charity, shall receive from the
belligerents for themselves and their duly accredited agents evel y
facility, within the boundll of military requirements and administrative regUlations, for the etrectlve accomplishment of theIr humane
task. Delegates of these societies may be admitted to the places 'If
Internment for the dIstrIbution of relief, as also to the haltlng-plac.'s
of repatriated prisoners, If furnished with a personal permit by the
military authorities, and on gtvng an engagement In writing to
comply with all their regulatons for order and police.
738. The Information bureau shall have the privilege of free postage. Letters. money orders, and valuables. as well as postal parcels. destined for the prisoners of war or dispatched by them. shall
be free of all postal duties, both In the countries or. origin and de~
tlnatlon, as well as In those through which they pass.
Gifts and reller In kind for prisoners of war shall be admitted fr~e
of all autles of entry and others. as well as of payments for carrIage
by th' government railways.
739. Omcers taken prisoners may receive, If necessary. the full
pay allowed them In this position by their country's regulations,
the amount to be repaid by their government.
740. Prhtoners of war shall enjoy every latitude In the exercise
of their religion, Including attendance at their own church services.
644
provided only they comply wIth the regulations tor order and pollee
Issued by the military authorIties.
741. The wills at prIsoners at war are received or drawn up on
the same condltlonB as tor Boldlen ot the national army.
The same rules shall be observed regarding death certificates, aB
well as tor the burial ot prisoners at war, due regard being paid to
their grade and rank.
742. Atter the conclUBlon ot peace, the repatrIation -at prlsonera
at war Bhall take place aB BPeedlly as possible.
DESERTERS.
743. DeJtertere tram the organized and active land torces at the
United States, havIng voluntarily entered the servIce or the enemy,
sUlfer death It they tall again Into the power at the United StateB,
whether by capture or by beIng delivered up. It a deserter trom
sulfer death It they tall again Into the power at the UnIted States.
IB captured by the enemy and punished wIth death or otherwise, It
i8 not a breach at the laws and usages or war, and does not call
tor redresB or retaliation.
HOSTAGES.
7H. A hostage Is a person accepted as a pledge for the fulfillment
ot an agreement concluded between belligerents during a war or In
consequence ot a war. Such hostages are rare In the present age
between ciVilized powers.
It a hostage Is accepted, he Is treated lIke a prisoner ot war, 'l.Ccording to rank and condition, as clrcumBtances may permit.
The right to' take hostages may also be exerclBed by seizing locaily
Infiuentlal personB and holding them as security against damage to
rallroads, telegraph lines, bridges, tunnels, etc., on the line ot communIcations, by hostile InhabItants.
When the conduct ot a. hostile population In occupied territory
amounts to guerrIlla wartare, resorting to aBsaBslnation of soldlerB
and IntimIdation or murder ot citizens dIsposed to be loyal, hostages
may be required to march at the head ot detachments of troops, an.1
they may be held subject to retaliation atter due warnIng.
SECTION IV_Partla_ _Armed eDemlea Dot beloDglD'" to tbe bo_
toe army-8ooata_Armed prow-lera_War rebela.
PARTISANS.
7'5. PartisallII are soldiers armed and wearing the uniform (.t
their army. but belonging. to a corps which acts detached trom the
main body tor the purpose ot makIng Inroads Into the terrItory occupied by the enemy. It captured, they are entitled to all the privIleges ot the prisoner ot war.
GUERRILLAS,
.746. Men or groups ot men who commit hostilities, whether by
fighting, by Inroads tor destruction or plunder, or by raIds at an)'
kInd, without commissIon. wIthout 'beIng part and portion ot the
APPltNDIX VI.
organized hostile army, and without sharing continuously In the
war, but who do so with Intermitting returns to their homes and
vocations, or with the occa.slonal assumption ot the semblance ot
peacetul pursuits, divesting themselves ot the appearance ot soldiers and again assuming It when It serves their purposes--such
men or groups ot men are not entitled to the privileges ot prisoners
ot war, but shall be treated summarily as highway robbers "I'
pirates.
In the absence ot general Instructions or special orders on th Is
subject trom higher authority, the commanding officer on the spot
becomes responsible for suitable action whenever such men are
caught In the act or when there Is no reasonable doubt of their
guilt. Betore enforcing the death penalty, the commanding officer.
In order to protect himself against pOBSlblllty ot error, may convene a board ot three officers to ascertain the facts, with names ot
wltneB8es, and later submit the same with report ot action to his
Immediate superior. It three omcers be not available, the board
may consist 01 two, or even one. It the commanding omcer be the
only -officer present, such record shall torm part ot his report. Wh en
such Immediate example Is not deemed necessary, the culprit may
be confined and formal charges forwarded as a basis tor trial by II
military commlBSlon, provided that the exigencies ot the campaign
do not render such course Impracticable.
747. SCouts or single soldiers, It disguised In civilian dress (-I'
otherwise, or In the uniform of the army hostile to their own, It
found within or lurking about the lines ot the captor, are treated
as spies, and sulfer death upon conviction betore a military
commission.
748. Armed prOWlers, by whatever names they may be called.
who steal within the lines ot the hostile army, and Inhabitants nt
the enemy's territory who kill or rob, destroy bridges, roads, railroads, or canals, rob or destroy the mall, or cut telegraph wires.
are not entitled to the privileges ot prisoners ot war.
WAR REBELS.
749. 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. It captured, they may suffer
death, whether they rise singly, In small or large bands, and wheth'!l'
called upon to do so by their own, but expelled, government or not.
They are not prisoners ot war; nor are they It discovered and secur'!d
betore their conspiracy has matured to an actual rising or armed
violence.
SECTION V.-8afe-eondaet.-Splea.-War traltora.-Goldea.
SAFE-CONDUCT.
760. All Intercourse between the territories occupied by belligerent armies, whether by traffic, written or printed correspondence.
cable, telegraph, telephone, or wireless telegraphy, or In any other
way, ceases. This Is the general rule to be observed without sp,,
cia I proclamation.
646
APPJi;NDIX VI.
647
648
APPENDIX VI.
779. The besieging belligerent may requelt the besieged to des.Ignate observatorl8ll, precious libraries, scientific museums, and
bUlldlngs containing collections of works of art, so that their
destruction may be avoided B.8 far B.8 practicable.
SIllVTION VII.--TIIe parole.
780. Prlaoners of war may be released from captivity by exchange,
and, under certain circumstances, also by parole.
781. The term "parole" designates the pledge of Individual good
faith and honor to do, or to omit doing, certain acts after he who
glv811 his parole shall have been released, or the conditions of his
confinement modified.
782. The pledge of the parole Is always an Individual. but not a
private act.
788. The parole applies chiefly to prisoners of war whom the
captor allows to return to their country, or to live m greater fr~e
dom within the captor's country or territory, on conditions stated
In the parole.
784. Release of prlloners of war by exchange Is the general rule;
release by parole Is the exception.
785. Breaking the parole Is punished with death when the person
breaking the parole Is recaptured after again serving In the en'!my's forces.
Accurate lists, therefore, of the paroled persons must be kept by
the belllgerents.
786. 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.
787. Commissioned omcers only are allowed to give their parole.
and they can give It only with the permission of their superior, a~
long as a superior In rank Is within reach.
788. No non-commissioned oftlcer or private can give his parole
except through an oftlcer. Individual paroles not given through 'ln
oftlcer are not only void, but subject the Individuals giving them to
the punishment of death as deserters. The only aumlsslble exception Is where Individuals, properly separated from their comman"s,
have suffered long confinement without the possibility of being
paroled through an oftlcer.
789. No paroling on the battle-field; no paroling of entire bodh~s
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.
790. In capitulationI for the surrender of strong places or fortified camps the oommandlng oftlcer, In cases of urgent necessity, may
agree that the troops under his command shall not fight again durIng the war, unless exchanged.
791. The usual pledge given In the parole II 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. Theile cases of breaking the parole are patent acts and can I>e
650
visited with the punishment of death; but the pledge does not ref(!r
to Internal service, such as recrultln&, or drilling the recruits, fortifying places not besieged, Q.uelling civil commotions, fighting against
belligerents unconnected with the parollng beillgerents, or to civil
or diplomatic service In which the paroled omcer may be employed.
792. If the government does not approve of the parole, the paroled
omcer must return Into captivity; shOUld the enemy refuse to receive him, he Is free of his parole.
793. A belligerent government may declare by a general order
whether it will allow paroling, a.nd on wha.t condJltlons. SUch order
is communicated to the enemy.
794. No prisoner of war can be forced by the hostile government
to parole himself, and no government Is obllged to parole prlsonerq
of war, or to parole all captured omcers, If It paroles any. As the
pledging of the parole Is an Individual act, so Is parollng, on the
other hand, an act of choice on the part of the belligerent.
796. The commander of an occupying army may require of the
ciVil omcers of the enemy, and of Its citizens, any pledge he m ....y
consider necessary for the safety or security of his army, and .upon
their failure to give It he may arrest, confine, 'or detain them.
SECTION Vln_Arm.IlItlee~.plta1atloD.
APPENDIX VI.
Ing notice of cesBation and the resumption of h08t1I1t1ea Bhouid have
been stipulated for.
8011. An armistice Is not a partial or a temporary peace; It Is only
the suspenBlon of military operations to the extent agreed upon "'Y
the parties.
803. 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 stop all extension, perfection, or advantJe
of his works, 8JI well as desist from attacks by main force.
But as there Is a ditrerence of opinion among martial jurists
whether the besieged have the right to repair breaches or to ereo:lt
new works of defence within the place during an armistice, tne
point should be determined by express agreement between the
parties.
1104. When an .armistice Is clearly broken by one of the parties.
the other party Is released from all obligation to Observe It.
1106. Prisoners taken In the act of breaking an armistice must La
treated as prisoners of war, the officer alone being responsible who
'"'gIves the order for such a violation of armistice. The hlgh.lSt
authority of the belligerent aggrieved may demand redress for the
Infraction of an armistice.
806. Belligerents sometimes conclude an armistICe while th.1lr
plenipotentiaries are met to discuss the conditions of a treaty of
peace, but plenipotentiaries may meet without a prellmlnary arm!~
tlce; In the latter case the war 18 carried on without any abatement.
807. 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 tne hostile armies shall ue
allowed. If any.
If nothing Is stipulated, the Intercourse remains suspended. us
during actual hostilities.
808. As soon as a capitulation is signed the capitulator h8JI 1,0
right to demolish, destroy, or Injure the works, arms, 8tores. or
ammunition In his possession, during the time which elapses between
the signing and the execution of the capitulation, uqless otherwbe
stipulated In the same.
SECTION IX_I..BlIrftCtlon.-Clvll ....ar_R"b"IUo...
652
APP!tNDlX VI.
INDEX.
A.
655
1888, 62b.
B_dlttI, 10.
B--.,.,
196.
' -
Civil
41~
administration
406, 407.
413.
falls,
obtains,
_rt.,
1i60.
when.
541.
544, 545.
338.
INDI-;X.
660
MILITARY
GOVltRNM~N~
III
661
INDJtx.
o."erameat. war powers. limit. 10.
Defects, acts of, depend on what.
242, 243, 244 245.
I
Debts due old government paid to
new. 252.
Military occupation, rights of old
government revert. 253. 254, 256,
266, 257.
Ousted. claims of. 263. 264.
Determines course In civil war. 270.
Property of, .may be alienated when,
271.
Home, controls military governor 'tn
re trade, 277.
Necessities of, and personal rights
under martial law, 383. 384.
Under dUferent. martial law varle~.
386.
Power of, to exercise martial law.
438.
Resistance to. met by martial law,
505.
United States, power of Congress,
641.
Gre.t Britain, U. S. treaty. In re confiscation, 224.
Ga.raatee. of Art. IV., Sec. 4. Constitution. 656.
Ga..rllIa.. military occupation, 45, 102.
And levies en masse. 106 to 112.
G...,rllla w.rt.re. 103.
Inefllclent against regular operations. 299. 302.
H
662
MILITARY
GO~RNMtNT AND
494.
Conditions In, In 1864, 496.
94.
MARTIAL LAW.
L
L d
200.
L.w, of nations, 9.
Will of conqueror Is, when, 61.
As to persons and property, 116.
Martial, 357 to 690.
Military. 360.
All, abolished, wll1 of commander,
424
Le
I.tare, has right self-defence, 480.
LeTt
m . . . e, guerillas, 106 to 112.
Exempted property. 212.
Llee...., President power to, trade, 281.
Bill of rights not a cloak for, 691.
INDU.
L ....t, of authority Federal Jurisdiction
In State, 666.
Of authority, oWclals to act within
631.
'
Jurisdiction, In re time of offence.
616.
Lhnlt.tt.... of military government,
32.
LlaO!oba, course of, In re Rebelllon, 491.
Course of. necessary In Kentuoky
492. 493, 494.
'
pr~iJ~mation of, September 16, 1863.
L_.J atlmbdIltraU_, effects of oocu-
III
M .....laO!.. right to destroy, 266.
M.~~~
D(;r3'lJ~eo
Martial ......l
MILITARY
GO~RNMItNT
Martial
INDltX.
lIIe. . .n: of war, martial law a, In
American colonies, 466.
lIIea".",.. martial law. evasion of
draft, 627.
Mea.ure.. of President subject to Congressional discussion, 629.
Mea.n",. of ",lief. military supported
by loyal civil authorities. 652. 553.
McClell_. Ge.... orders In Peninsular
campaign, 126.
McCouaeJl v.. Hamptou. 642. 643.
Not a precedent to-day. 646.
lIIerey, of conqueror. 117.
Of American armies, 118.
Merch_dl.e. entrance or. Into territory of military occupation, 291.
Ml"JIlph18, Te.... seizure of rents, 47.
War judiciary, 126.
Instance of authority of commander,
128.
MelT)"Dl_ ca.e. opinion Chief - Justice
Taney, 490.
Mex~9~u War, Instructions for supply,
Mex~~~. judicial
14.
1 to 366.
Of cities, 133.
Control of and exceptions, 189, 190.
191, 192, 193.
Destruction of property under. 219,
220.
Old State rights., when revert, 2501,
264. 266, 266, 207.
Authority of commander. limit. 305.
Those enforcing, may be Investigated 314.
Vigilant and rrompt. 324.
Tribunals. 33 to 843.
When ceases. 344 to 366.
Confounded with martial law, as
part of law of war. 426.
Military Jaw. 367 to 386.
Confounded with martial law, 360.
British, distinction between martial
law and, 398.
Military meallure.. In Southern States.
646.
Military occupatloa, extent of legality
When, operation. 33, 34, 36, 36.
And blockade, 42.
And tactics and by force, 43. 44, 46.
Enemies' territory, 49 to 66.
Laws or. to whom applicable, 142.
Laws applicable to neutrals. 163. 164.
165.
Efficacy of judgments. of courts or
former government 168.
Measures which survive, 196.
Enemy's property under, 227.
Effect on property, 234.
What not confiscable under, 241.
Property purchased under, 246.
'State rights revert after, 263. 254.
265, 256. 267.
Rule In re merchandise taken Into,
291.
Military otll~r.. enforce occupation, 75.
State sustains. 316.
Civil officers. British. 416. 417.
Respect civil authorities, 433.
Protected by Indemnity Act, 633. 534.
III1l1tar,. power. abuse of, 432.
When to be Invoked by President,
499, 600.
666
INDItX.
OPeD ft8lllt_ t. lawa, authority of
martial law, 694, li95.
Operatl_a, _ ......r, Inefficiency guerIlla warfare, 299-302.
Oplnloa, in Louisiana case, 1814 and
1815, 600, 601, 602.
P.rllament.ry
382.
P
m.rtl.1
law,
Ireland,
p_-.
384.
from,
668
MIr.ITARY
GO~RNMtNT AND
MARTIAl. r.AW.
669
IND!tX,
BeUef. for
CI~~l'
Right, of people
Peninsula.
rule, 667.
Conduct In Mexico,
court. 336.
Invoking
war
INDEx.
Territory of rebel.. treated 8.8 belligerents In local justiciary, 123, 124.
Territo..,., reclaimed from rebel.. polIcy of government local, 307.
Held by conqueror, when, 345.
T ..rrltory, held permanently, changc
ot' government, when, a4ti, 34:7. ::JiS,
349.
Terrltorle.. martial. law of, distinct
from Federal, b~i.
Martial law In, 671, 672, 573, 674.
Territorl.1 limit, martial law courts',
Jurisdiction, 614.
T ..uor, may Justify martial law, 472.
'I'he.tre or oper.tloRM, Articles of \Var
apply, li5.
Theatre of war, only place military Institute martial law, 623.
Theo..,., of martial law In IT. S.. to to
440; see Martial Law.
Of martial law courts, terllorlal
limits, 614.
Thorlnston va. Smith, 243.
'rltle, post limlnlum, to movable property, 228.
Only on possession of conqueror, 23S.
By seizure of conqueror of sVlte
property, 247.
In removable and Immovable property, 248.
Of conqueror acquired how, 249.
Records of, to be -reserved. 261.
Tr.c~t95.Wlth occupied territory, 272 to
President authority to license, 281.
Policy of, Treasury Department, 28~.
Trade, I.w of, attempts to e"ade, 283.
Attempts to evade. action of Supreme Court, 284.
Trade, stopped by war, 285.
Trade Int..reour.e, when and where illegal, 289, 290.
Exception to rule In re enemy, 292.
Trade, case In Sulu ArchlpelaKo, 294.
Restrlctl08s of, In war, founded on
public polley, 296.
Tae.ty, necessary to permanent military government, 39.
Territory surrendered by, when. 345.
Tn.u..,. Department, policy of trad",
282.
Trial crime.. under commOn law, 161,
162.
TrI.I, of .eutr.i.. criminal otl'ence~,
166.
Right of martial law, 628.
TrI.l., under 63rd Article of War, 15S.
Of civilians under 63rd Article of
War, 160.
Tribun.l of Inv.ded country, no jurIsdiction over whom, 149, 150, 151,
152, 163, 164.
TrIbunal.. military government, 333 to
343.
British martial law, character of, 395.
Trlbun.I., martial law, 605 to 629.
Correspond to olfences of the times,
606.
Legality questioned, 606.
607.
re675.
676.
64~.
672
ot
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