Read Ebook: A Code for the Government of Armies in the Field as authorized by the laws and usages of war on land. by Lieber Francis United States War Department

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A CODE

FOR THE

Government of Armies in the Field,

Printed as manuscript for the Board appointed by the Secretary of War "To Propose Amendments or Changes in the Rules and Articles of War, and a Code of Regulations for the Government of Armies in the Field, as authorized by the Laws and Usages of War."

FEBRUARY, 1863.

CODE.

MARTIAL LAW. MILITARY NECESSITY. RETALIATION.

? 1. A place, district, or country, invested or occupied by an enemy, stands, in consequence of the occupation, under the Martial Law of the investing or invading army, whether any proclamation declaring Martial Law, or any public warning to the inhabitants, has been issued or not. Martial Law is the immediate and direct effect and consequence of occupation or conquest.

The presence of a hostile army proclaims its Martial Law.

? 2. Martial Law does not cease during the hostile occupation, except by special proclamation, ordered by the commander in chief; or by special mention in the treaty of peace, concluding the war, when the occupation of a place or territory continues beyond the conclusion of peace, as one of the conditions of the same.

? 3. Martial Law in a hostile country, consists in the suspension, by the occupying military authority, of the criminal and civil law, and of the domestic administration and government in the occupied place or territory, and in the substitution of military rule and force, for the same; as well as in the dictation of general laws--as far as military necessity requires this suspension, substitution, and dictation.

It is not unusual to proclaim that the administration of all civil and penal law shall continue, as in times of peace, unless specially interfered with by the military authority.

? 4. Martial Law, although called law, does not consist in a body of rules of action. There is not even a distinct term for it in other languages.

Martial Law in a conquered or invaded country, or place, is temporary Military Absolutism, in the hands of commanders, who, therefore, must take care that it does not degenerate into arbitrary despotism. Martial Law is not the reckless use of military power by the highest or lowest in arms. Military oppression is not Martial Law.

? 5. Military Necessity, as understood by modern civilized nations, consists in the necessity of those measures which are indispensable for the obtaining of the ends of the war, and are lawful according to the modern law and usages of war.

? 6. Modern times are distinguished from earlier ages, by the existence, at one and the same time, of many nations and great governments, related to one another in close intercourse. They draw abreast like chariot horses.

Peace is their normal condition; war is the exception. The ultimate object of all modern war is a renewed state of peace.

The more vigorously wars are pursued, the better it is for humanity. Sharp wars are brief.

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

? 7. Military Necessity admits of all direct destruction of life or limb of the armed enemies, and of those whose destruction is incidentally unavoidable in the armed contests of the war; it allows of the capturing of every armed enemy, and every enemy of importance to the hostile government, or of peculiar danger to the captor; it allows of all destruction and obstruction of property, of the ways and channels of traffic, travel, or communion, and of all withholding of sustenance or means of life from the enemy; of all appropriation necessary for the subsistence and safety of the army, and of all deception which does not involve the breaking of good faith either positively pledged regarding agreements entered into during the war, or supposed by the modern law of war to exist, even in the fiercest struggle, as a basis of intercourse between honorable belligerents. Men who take up arms against one another in public war, do not cease on this account to be moral beings, responsible to one another, and to God.

Military Necessity does not admit of cruelty--that is, the infliction of suffering for the sake of suffering or for revenge;--nor of maiming or wounding except in fight, nor of torture to extort confessions; it does not admit of the use of poison in any way, nor of the devastation of districts for the sake of creating depopulated districts, since it is the will of our Maker that in the normal state the land shall be tilled and peopled; and, in general, Military Necessity does not include any act of hostility which makes the return to peace unnecessarily difficult.

? 8. In modern wars all civil and penal law continues to take its usual course in the enemy's places and territories under Martial Law, unless interrupted or stopped by order of the occupying military power; but all the functions of the hostile government, legislative, executive, or administrative, whether of a general, provincial, or local character, cease under Martial Law, or continue only with the assistance or special approbation of the occupier or invader.

? 9. Martial Law extends to property and persons, whether they are subjects of the enemy, or aliens to that government.

Consuls, among American and European nations, are not diplomatic agents. Nevertheless, their offices and persons will be subjected to Martial Law in cases of urgent necessity only.

Soldiers are rarely billeted in their houses; but their property and business, if they are engaged in any, are not exempted.

Any delinquency they commit against the established military rule, may be punished as in the case of any other inhabitant, and such punishment furnishes no reasonable ground for international complaint.

The functions of ambassadors, ministers, or other diplomatic agents, accredited by neutral powers to the hostile government, cease in the invaded, occupied, or conquered places or territories.

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

It allows of no individual violence; and since it consists in the substitution of military rule for the established law and its administration, and because it is founded on military force, it is incumbent upon all military authorities acting by Martial Law, to be strictly guided by the principles of justice, honor, and humanity--virtues adorning a soldier even more than other men, for the very reason that he possesses the power of his arms against the unarmed.

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

It disclaims all extortions and other transactions for individual gain; all acts of private revenge or connivance at such acts.

Offences to the contrary shall be severely punished in the American army, and especially so if committed by officers.

? 12. Whenever feasible, Martial Law is carried out, in cases of individual offences, by courts-martial, and sentences of death shall be executed only by the approval of the commander of the army corps, provided the urgency of the case does not require a speedier execution. In no case shall a sentence of death by court-martial be executed without the approval of a general officer.

The finding of a court-martial, judging an enemy, may be set aside, in urgent cases, by the authority which has called together the court-martial, when a new court-martial is to be ordered; but it is against the plain demands of justice and fairness, if the authority, which has ordered a court-martial, not only sets aside the finding, but inflicts a severer punishment than that in the finding. Instances to the contrary of this rule, in the history of war, although in the case of great captains, are not to be imitated.

? 13. The law of war can no more wholly dispense with Retaliation than can the law of nations, of which it is a branch. Yet civilized nations acknowledge Retaliation as the sternest feature of war. A reckless enemy often leaves to his opponent no other means of securing himself against the repetition of barbarous outrage.

The American people demand of their generals that Retaliation be never resorted to as a measure of mere revenge, but only as a means of protective retribution, and, moreover, cautiously, justly, and unavoidably; that is to say, retaliation shall only be resorted to after careful inquiry, not blinded by passion, into the real occurrence, and the character of the misdeeds that may demand retribution, after an unsuccessful summons of the enemy to punish the evil-doers, and without transgressing the bounds of strict retaliation.

Doubtful Retaliation removes the belligerents farther and farther from the mitigating rules of a regular war, and by rapid steps leads them nearer to the internecine wars of savages.

PUBLIC AND PRIVATE PROPERTY OF THE ENEMY. PROTECTION OF PERSONS, AND ESPECIALLY WOMEN; OF RELIGION, THE ARTS AND SCIENCES. PUNISHMENT OF CRIMES AGAINST THE INHABITANTS OF HOSTILE COUNTRIES.

? 14. A victorious army appropriates all public money, seizes all public movable property until further direction by its government, and sequesters, for its own benefit, or that of its government, all real property belonging to the hostile government or nation.

? 15. A victorious army, by the martial power inherent in the same, may suspend, change, disacknowledge, or abolish, as far as the martial power extends, the relations which arise from the services due, according to the existing laws of the invaded country, from one citizen, subject, or native of the same to another.

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

? 16. As a general rule, the property belonging to churches, to hospitals, or other establishments of an exclusively charitable or eleemosynary character, to establishments of education, or foundations for the promotion of knowledge, whether public schools, universities, academies of learning or observatories, museums of the fine arts, or of a scientific character--such property shall not be considered by the armies of the United States, public property in the sense of paragraph 14.

In exceptional cases, such as richly endowed churches or convents, their property may be taxed with military contributions.

? 17. Classical works of art, noble fabrics, libraries, scientific collections, or precious instruments, such as astronomic telescopes, as well as hospitals, must be tenderly secured in the name of common humanity and civilization, against all avoidable injury, even when they are contained in fortified places, whilst besieged or bombarded.

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

In no case ought they to be sold or given away by the captor or the victorious government during the war, still less ought they ever to be privately appropriated, or wantonly destroyed or injured.

? 19. The United States acknowledge and protect, in hostile countries occupied by them, religion and morality; unmixed private property--that is to say, property in which neither private and public property, nor the ideas of property and humanity, or person, are mixed;--the persons of the inhabitants, especially those of women; and the sacredness of domestic relations. Offences to the contrary are to be rigorously punished.

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

? 20. Private property, unless forfeited by crimes or by offences of the owner against the safety of the army or the dignity of the United States, and after due conviction of the owner by court-martial, can be seized only by way of military necessity, for the support or other benefit of the army or of the United States.

If the owner has not fled, the commanding and seizing officer will give receipts, which may serve the spoliated owner to obtain indemnity from his own government, or which, if the seized property consists in large magazines and stores, or extensive real property--such as the demolition of houses, or the seizure of extensive lands for the erection of fortifications--may be ultimately accounted for or disposed of by the treaty of peace concluding the war.

? 21. The salaries of civil officers of the hostile government who remain in the invaded territory, and continue the work of their office, and can continue it according to the circumstances arising out of the war--such as judges, administrative or police officers, officers of city or communal governments--are paid from the public revenue of the invaded territory, until the military government has reason wholly or partially to discontinue it. Salaries or incomes connected with purely honorary titles, are always stopped.

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