INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES OF THE UNITED STATES IN THE FIELD
| General Orders, |
} |
WAR DEPARTMENT, |
| No. 100. |
Adjutant General's Office |
| Washington, April 24, 1863. |
| The following "Instructions for the Government of Armies of the United States in the Field," prepared by Francis Lieber, LL.D., and revised by a Board of Officers, of which Major General E. A.
Hitchcock is president, having been approved by the President of the United States, he commands that they be published
for the information of all concerned. |
| By Order of the Secretary of War: |
|
| E. D. TOWNSEND, |
| Assistant Adjutant General. |
INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES OF THE UNITED STATES IN THE FIELD
Martial Law—Military Jurisdiction—Military Necessity—Retaliation
1
A place, district, or country occupied by an enemy stands, in consequence of the occupation, under the Martial Law of the
invading or occupying army, whether any proclamation
declaring Martial Law, or any public warning to the inhabitants, has been issued or not. Martial Law is
the immediate and direct effect and consequence of occupation or conquest.
The presence of a hostile army proclaims its Martial Law.
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, 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 otherwise ordered by the military authority.
4
Martial Law is simply military authority exercised in accordance with the laws and usages of war. Military oppression is
not Martial Law; it is the abuse of the power which that law confers. As Martial Law is executed by military force, it is
incumbent upon those who administer it to be strictly guided by the principles of justice, honor, and humanity—virtues
adorning a soldier even more than other men, for the very reason that he possesses the power of his arms against the
unarmed.
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—even in the commander's own country—when face to face with the enemy, because of the
absolute necessities of the case, and of the paramount duty to defend the country against invasion.
To save the country is paramount to all other considerations.
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 administrative—whether of a general, provincial, or local character, cease
under Martial Law, or continue only with the sanction, or, if deemed necessary, the participation of the occupier 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 diplomatic agents, accredited by neutral powers to the hostile
government, cease, so far as regards the displaced government; but the conquering or occupying power usually recognizes them
as temporarily accredited to itself.
10
Martial Law affects chiefly the police and collection of public revenue and taxes, whether imposed by the expelled
government or by the invader, and refers mainly to the support and efficiency of the army, its safety, and the safety of its
operations.
11
The law of war does not only disclaim all cruelty and bad faith concerning engagements concluded with the enemy during the
war, but also the breaking of stipulations solemnly contracted by the belligerents in time of peace, and avowedly intended to
remain in force in case of war between the contracting powers.
It disclaims all extortions and other transactions for individual gain; all acts of private revenge, or connivance at such
acts.
Offenses to the contrary shall be severely punished, and especially so if committed by officers.
12
Whenever feasible, Martial Law is carried out in cases of individual offenders by Military Courts; but sentences of death
shall be executed only with the approval of the chief executive, provided the urgency of the case does not require a speedier
execution, and then only with the approval of the chief commander.
13
Military jurisdiction is of two kinds: First, that which is conferred and defined by statute; second, that which
is derived from the common law of war. Military
offenses under the statute law must be tried in the manner therein directed; but military offenses which do not come within
the statute must be tried and punished under the common law of war. The character of the courts which exercise these
jurisdictions depends upon the local laws of each particular country.
In the armies of the United States the first is exercised by courts-martial, while cases which do not come within the
"Rules and Articles of War," or the jurisdiction conferred by statute on courts-martial, are tried by military
commissions.
14
Military necessity, as understood by modern civilized nations, consists in the necessity of those measures which are
indispensable for securing the ends of the war, and which are lawful according to the modern law and usages of war.
15
Military necessity admits of all direct destruction of life or limb of armed enemies, and of other persons whose
destruction is incidentally unavoidable in the armed contests of the war; it allows of the capturing of every armed
enemy, and every enemy of importance to the hostile government, or of peculiar danger to the captor; it allows of all
destruction of property, and obstruction of the ways and channels of traffic, travel, or communication, and of all
withholding of sustenance or means of life from the enemy; of the appropriation of whatever an enemy's country affords
necessary for the subsistence and safety of the army, and of such deception as does not involve the breaking of good faith
either positively pledged, regarding agreements entered into during the war, or supposed by the modern law of war to exist.
Men who take up arms against one another in public war do not cease on this account to be moral beings, responsible to one
another and to God.
16
Military necessity does not admit of cruelty—that is, the infliction of suffering for the sake of suffering or for
revenge, nor of maiming or wounding except in fight, nor of torture to extort confessions. It does not admit of the use of
poison in any way, nor of the wanton devastation of a district. It admits of deception, but disclaims acts of perfidy; and,
in general, military necessity does not include any act of hostility which makes the return to peace unnecessarily
difficult.
17
War is not carried on by arms alone. It is lawful to starve the hostile belligerent, armed or unarmed, so that it leads to
the speedier subjection of the enemy.
18
When a commander of a besieged place expels the noncombatants, in order to lessen the number of those who consume his
stock of provisions, it is lawful, though an extreme measure, to drive them back, so as to hasten on the surrender.
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.
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 acknowledged that the unarmed citizen is to be spared in person,
property, and honor as much as the exigencies of war will admit.
23
Private citizens are no longer murdered, enslaved, or carried off to distant parts, and the inoffensive individual is as
little disturbed in his private relations as the commander of the hostile troops can afford to grant in the overruling
demands of a vigorous war.
24
The almost universal rule in remote times was, and continues to be with barbarous armies, that the private individual of
the hostile country is destined to suffer every privation of liberty and protection, and every disruption of family ties.
Protection was, and still is with uncivilized people, the exception.
25
In modern regular wars of the Europeans, and their descendants in other portions of the globe, protection of the
inoffensive citizen of the hostile country is the rule; privation and disturbance of private relations are the
exceptions.
26
Commanding generals may cause the magistrates and civil officers of the hostile country to take the oath of temporary
allegiance or an oath of fidelity to their own victorious government or rulers, and they may expel every one who declines to
do so. But whether they do so or not, the people and their civil officers owe strict obedience to them as long as they hold
sway over the district or country, at the peril of their lives.
27
The law of war can no more wholly dispense with retaliation than can the law of nations, of which it is a branch. Yet
civilized nations acknowledge retaliation as the sternest feature of war. A reckless enemy often leaves to his opponent no
other means of securing himself against the repetition of barbarous outrage.
28
Retaliation will, therefore, never be resorted to as a measure of mere revenge, but only as a means of protective
retribution, and moreover, cautiously and unavoidably; that is to say, retaliation shall only be resorted to after careful
inquiry into the real occurrence, and the character of the misdeeds that may demand retribution.
Unjust or inconsiderate retaliation removes the belligerents farther and farther from the mitigating rules of regular war,
and by rapid steps leads them nearer to the internecine wars of savages.
29
Modern times are distinguished from earlier ages by the existence, at one and the same time, of many nations and great
governments related to one another in close intercourse.
Peace is their normal condition; war is the exception. The ultimate object of all modern war is a renewed state of
peace.
The more vigorously wars are pursued, the better it is for humanity. Sharp wars are brief.
30
Ever since the formation and coexistence of modern nations, and ever since wars have become great national wars, war has
come to be acknowledged not to be its own end, but the means to obtain great ends of state, or to consist in defense against
wrong; and no conventional restriction of the modes adopted to injure the enemy is any longer admitted; but the law of war
imposes many limitations and restrictions on principles of justice, faith, and honor.
Public and Private Property of the Enemy—Protection of Persons, and especially of Women; of
Religion, the Arts and Sciences—Punishment of Crimes against the Inhabitants of Hostile Countries
31
A victorious army appropriates all public money, seizes all public movable property until further direction by its
government, and sequesters for its own benefit or of that of its government all the revenues of real property belonging to
the hostile government or nation. The title to such real property remains in abeyance during military occupation, and until
the conquest is made complete.
32
A victorious army, by the martial power inherent in the same, may suspend, change, or abolish, as far as the martial power
extends, the relations which arise from the services due, according to the existing laws of the invaded country, from one
citizen, subject, or native of the same to another.
The commander of the army must leave it to the ultimate treaty of peace to settle the permanency of this
change.
33
It is no longer considered lawful—on the contrary, it is held to be a serious breach of the law of war—to
force the subjects of the enemy into the service of the victorious government, except the latter should proclaim, after a
fair and complete conquest of the hostile country or district, that it is resolved to keep the country, district, or place
permanently as its own and make it a portion of its own country.
34
As a general rule, the property belonging to churches, to hospitals, or other establishments of an exclusively charitable
character, to establishments of education, or foundations for the promotion of knowledge, whether public schools,
universities, academies of learning or observatories, museums of the fine arts, or of a scientific character—such
property is not to be considered public property in the sense of paragraph 31; but it may be taxed or used when the public
service may require it.
35
Classical works of art, libraries, scientific collections, or precious instruments, such as astronomical telescopes, as
well as hospitals, must be secured against all avoidable injury, even when they are contained in fortified places whilst
besieged or bombarded.
36
If such works of art, libraries, collections, or instruments belonging to a hostile nation or government, can be removed
without injury, the ruler of the conquering state or nation may order them to be seized and removed for the benefit of the
said nation. The ultimate ownership is to be settled by the ensuing treaty of peace.
In no case shall they be sold or given away, if captured by the armies of the United States, nor shall they ever be
privately appropriated, or wantonly destroyed or injured.
37
The United States acknowledge and protect, in hostile countries occupied by them, religion and morality; strictly private
property; the persons of the inhabitants, especially those of women; and the sacredness of domestic relations. Offenses to
the contrary shall be rigorously punished.
This rule does not interfere with the right of the victorious invader to tax the people or their property, to levy forced
loans, to billet soldiers, or to appropriate property, especially houses, lands, boats or ships, and churches, for temporary
and military uses.
38
Private property, unless forfeited by crimes or by offenses of the owner, can be seized only by way of military necessity,
for the support or other benefit of the army or of the United States.
If the owner has not fled, the commanding officer will cause receipts to be given, which may serve the spoliated owner to
obtain indemnity.
39
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.
40
There exists no law or body of authoritative rules of action between hostile armies, except that branch of the law of nature and nations which is called the law and usages
of war on land.
41
All municipal law of the ground on which the armies stand, or of the countries to which they belong, is silent and of no
effect between armies in the field.
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 they were slaves, villains, or serfs, into another country, have,
for centuries past, been held free and acknowledged free by judicial decisions of European countries, even though the
municipal law of the country in which the slave had taken refuge acknowledged slavery within its own dominions.
43
Therefore, in a war between the United States and a belligerent which admits of slavery, if a person held in bondage by
that belligerent be captured by or come as a fugitive under the protection of the military forces of the United States, such
person is immediately entitled to the rights and privileges of a freeman. To return such person into slavery would amount to
enslaving a free person, and neither the United States nor any officer under their authority can enslave any human being.
Moreover, a person so made free by the law of war is under the shield of the law of nations, and the former owner or State
can have, by the law of postliminy, no belligerent lien or claim of service.
44
All wanton violence committed against persons in the invaded country, all destruction of property not commanded by the
authorized officer, all robbery, all pillage or sacking, even after taking a place by main force, all rape, wounding,
maiming, or killing of such inhabitants, are prohibited under the penalty of death, or such other severe punishment as may
seem adequate for the gravity of the offense.
A soldier, officer or private, in the act of committing such violence, and disobeying a superior ordering him to abstain
from it, may be lawfully killed on the spot by such superior.
45
All captures and booty belong, according to the modern law of war, primarily to the government of the captor.
Prize money, whether on sea or land, can now only be claimed under local law.
46
Neither officers nor soldiers are allowed to make use of their position or power in the hostile country for private gain,
not even for commercial transactions otherwise legitimate. Offenses to the contrary committed by commissioned officers will
be punished with cashiering or such other punishment as the nature of the offense may require; if by soldiers, they shall be
punished according to the nature of the offense.
47
Crimes punishable by all penal codes, such as arson, murder, maiming, assaults, highway robbery, theft, burglary, fraud,
forgery, and rape, if committed by an American soldier in a hostile country against its inhabitants, are not only punishable
as at home, but in all cases in which death is not inflicted, the severer punishment shall be preferred.
Deserters—Prisoners of War—Hostages—Booty on the Battlefield
48
Deserters from the American Army, having entered the service of the enemy, suffer death if they fall again into the hands
of the United States, whether by capture, or being delivered up to the American Army; and if a deserter from the enemy,
having taken service in the Army of the United States is captured by the enemy, and punished by them with death or otherwise,
it is not a breach against the law and usages of war, requiring redress or retaliation.
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 efficiency and promote directly the object of the war, except such as are
hereinafter provided for; all disabled men or officers on the field or elsewhere, if captured; all enemies who have thrown
away their arms and ask for quarter, are prisoners of war, and as such exposed to the inconveniences as well as entitled to
the privileges of a prisoner of war.
50
Moreover, citizens who accompany an army for whatever purpose, such as sutlers, editors, or reporters of journals, or
contractors, if captured, may be made prisoners of war, and be detained as such.
The monarch and members of the reigning hostile family, male or female, the chief, and chief officers of the hostile
government, its diplomatic agents, and all persons who are of particular and singular use and benefit to the hostile army or
its government, are, if captured, on belligerent ground, and if unprovided with a safe conduct granted by the captor's
government, prisoners of war.
51
If the people of that portion of an invaded country which is not yet occupied by the enemy, or of the whole country, at
the approach of a hostile army, rise, under a duly authorized levy, en masse to resist the invader, they are now
treated as public enemies, and, if captured, are prisoners of war.
52
No belligerent has the right to declare that he will treat every captured man in arms of a levy en masse as a
brigand or bandit.
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 American Army, are not prisoners of war, unless the commander has reasons to retain them. In this latter case,
or if, at their own desire, they are allowed to remain with their captured companions, they are treated as prisoners of war,
and may be exchanged if the commander sees fit.
54
A hostage is a person accepted as a pledge for the fulfillment of an agreement concluded between belligerents
during the war, or in consequence of a war.
Hostages are rare in the present age.
55
If a hostage is accepted, he is treated like a prisoner of war, according to rank and condition, as circumstances may
admit.
56
A prisoner of war is subject to no punishment for being a public enemy, nor is any revenge wreaked upon him by the
intentional infliction of any suffering, or disgrace, by cruel imprisonment, want of food, by mutilation, death, or any other
barbarity.
57
So soon as a man is armed by a sovereign government and takes the soldier's oath of fidelity, he is a belligerent; his
killing, wounding, or other warlike acts are not individual crimes or offenses. No belligerent has a right to declare that
enemies of a certain class, color, or condition, when properly organized as soldiers, will not be treated by him as public
enemies.
58
The law of nations knows of no distinction of color, and if an enemy of the United States should enslave and sell any
captured persons of their army, it would be a case for the severest retaliation, if not redressed upon complaint.
The United States can not retaliate by enslavement; therefore death must be the retaliation for this crime against the law
of nations.
59
A prisoner of war remains answerable for his crimes committed against the captor's army or people, committed before he was
captured, and for which he has not been punished by his own authorities.
All prisoners of war are liable to the infliction of retaliatory measures.
60
It is against the usage of modern war to resolve, in hatred and revenge, to give no quarter. No body of troops has the
right to declare that it will not give, and therefore will not expect, quarter; but a commander is permitted to direct his
troops to give no quarter, in great straits, when his own salvation makes it impossible to cumber himself with
prisoners.
61
Troops that give no quarter have no right to kill enemies already disabled on the ground, or prisoners captured by other
troops.
62
All troops of the enemy known or discovered to give no quarter in general, or to any portion of the army, receive
none.
63
Troops who fight in the uniform of their enemies, without any plain, striking, and uniform mark of distinction of their
own, can expect no quarter.
64
If American troops capture a train containing uniforms of the enemy, and the commander considers it advisable to
distribute them for use among his men, some striking mark or sign must be adopted to distinguish the American soldier from
the enemy.
65
The use of the enemy's national standard, flag, or other emblem of nationality, for the purpose of deceiving the enemy in
battle, is an act of perfidy by which they lose all claim to the protection of the laws of war.
66
Quarter having been given to an enemy by American troops, under a misapprehension of his true character, he may, nevertheless, be ordered to suffer death if, within three
days after the battle, it be discovered that he 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
modern war, and, indeed, modern war itself, are means to obtain that object of the belligerent which lies beyond the war.
Unnecessary or revengeful destruction of life is not lawful.
69
Outposts, sentinels, or pickets are not to be fired upon, except to drive them in, or when a positive order, special or
general, has been 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.
71
Whoever intentionally inflicts additional wounds on an enemy already wholly disabled, or kills such an enemy, or who
orders or encourages soldiers to do so, shall suffer death, if duly convicted, whether he belongs to the Army of
the United States, or is an enemy captured after
having committed his misdeed.
72
Money and other valuables on the person of a prisoner, such as watches or jewelry, as well as extra clothing, are regarded
by the American Army as the private property of the prisoner, and the appropriation of such valuables or money is considered
dishonorable, and is prohibited.
Nevertheless, if large sums are found upon the persons of prisoners, or in their possession, they shall be taken
from them, and the surplus, after providing for their own support, appropriated for the use of the army, under the direction
of the commander, unless otherwise ordered by the government. Nor can prisoners claim, as private property, large sums found
and captured in their train, although they have been placed in the private luggage of the prisoners.
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 his distinguished bravery or approbation of his humane treatment of
prisoners before his capture. The captured officer to whom they may be restored can not wear them during captivity.
74
A prisoner of war, being a public enemy, is the prisoner of the government, and not of the captor. No ransom can be paid
by a prisoner of war to his individual captor or to any officer in command. The government alone releases captives, according
to rules prescribed by itself.
75
Prisoners of war are subject to confinement or imprisonment such as may be deemed necessary on account of safety, but they
are to be subjected to no other intentional suffering
or indignity. The confinement and mode of treating a prisoner may be varied during his captivity according
to the demands of safety.
76
Prisoners of war shall be fed upon plain and wholesome food, whenever practicable, and treated with humanity.
They may be required to work for the benefit of the captor's government, according to their rank and condition.
77
A prisoner of war who escapes may be shot or otherwise killed in his flight; but neither death nor any other punishment
shall be inflicted upon him simply for his attempt to escape, which the law of war does not consider a crime. Stricter means
of security shall be used after an unsuccessful attempt at escape.
If, however, a conspiracy is discovered, the purpose of which is a united or general escape, the conspirators may be
rigorously punished, even with death; and capital punishment may also be inflicted upon prisoners of war discovered to have
plotted rebellion against the authorities of the captors, whether in union with fellow prisoners or other persons.
78
If prisoners of war, having given no pledge nor made any promise on their honor, forcibly or otherwise escape, and are
captured again in battle after having rejoined their own army, they shall not be punished for their escape, but shall be
treated as simple prisoners of war, although they will be subjected to stricter confinement.
79
Every captured wounded enemy shall be medically treated, according to the ability of the medical staff.
80
Honorable men, when captured, will abstain from giving to the enemy information concerning their own army, and the modern
law of war permits no longer the use of any violence against prisoners in order to extort the desired information or to
punish them for having given false information.
Partisans—Armed Enemies not belonging to the Hostile Army—Scouts—Armed
Prowlers—War-rebels
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.
82
Men, or squads of men, who commit hostilities, whether by fighting, or inroads for destruction or plunder, or by raids of
any kind, without commission, without being part and portion of the organized hostile army, and without sharing continuously
in the war, but who do so with intermitting returns to their homes and avocations, or with the occasional assumption of the
semblance of peaceful pursuits, divesting themselves of the character or 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.
83
Scouts, or single soldiers, if disguised in the dress of the country or in the uniform of the army hostile to their
own, employed in obtaining information, if found
within or lurking about the lines of the captor, are treated as spies, and suffer death.
84
Armed prowlers, by whatever names they may be called, or persons of the enemy's territory, who steal within the lines of
the hostile army for the purpose of robbing, killing, or of destroying bridges, roads, or canals, or of robbing or destroying
the mail, or of cutting the telegraph wires, are not entitled to the privileges of the prisoner of war.
85
War-rebels are persons within an occupied territory who rise in arms against the occupying or conquering army, or against
the authorities established by the same. If captured, they may suffer death, whether they rise singly, in small or large
bands, and whether called upon to do so by their own, but expelled, government or not. They are not prisoners of war; nor are
they if discovered and secured before their conspiracy has matured to an actual rising or armed violence.
Safe-conduct—Spies—War-traitors—Captured Messengers—Abuse of the Flag of
Truce
86
All intercourse between the territories occupied by belligerent armies, whether by traffic, by letter, by travel, or in
any other way, ceases. This is the general rule, to be observed without special proclamation.
Exceptions to this rule, whether by safe-conduct, 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 safe-conduct is
declined. Such passes are usually given by the supreme authority of the State and not by subordinate officers.
88
A spy is a person who secretly, in disguise or under false pretense, 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.
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 suffer death.
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 information of any kind to the enemy, or holds intercourse with him.
91
The war-traitor is always severely punished. If his offense consists in betraying to the enemy anything
concerning the condition, safety, operations, or
plans of the troops holding or occupying the place or district, his punishment is death.
92
If the citizen or subject of a country or place invaded or conquered gives information to his own government, from which
he is separated by the hostile army, or to the army of his government, he is a war-traitor, and death is the penalty of his
offense.
93
All armies in the field stand in need of guides, and impress them if they can not obtain them otherwise.
94
No person having been forced by the enemy to serve as guide is punishable for having 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 voluntarily as a guide against his own country commits treason, and will be dealt with according to the
law of his country.
97
Guides, when it is clearly proved that they have misled intentionally, may be put to death.
98
All unauthorized or secret communication with the enemy is considered treasonable by the law of war.
Foreign residents in an invaded or occupied territory, or foreign visitors in the same, can claim no immunity
from this law. They may communicate with foreign
parts, or with the inhabitants of the hostile country, so far as the military authority permits, but no further. Instant
expulsion from the occupied territory would be the very least punishment for the infraction of this rule.
99
A messenger carrying written dispatches or verbal messages from one portion of the army, or from a besieged place, to
another portion of the same army, or its government, if armed, and in the uniform of his army, and if captured, while doing
so, in the territory occupied by the enemy, is treated by the captor as a prisoner of war. If not in uniform, nor a soldier,
the circumstances connected with his capture must determine the disposition that shall be made of him.
100
A messenger or agent who attempts to steal through the territory occupied by the enemy, to further, in any manner, the
interests of the enemy, if captured, is not entitled to the privileges of the prisoner of war, and may be dealt with
according to the circumstances of the case.
101
While deception in war is admitted as a just and necessary means of hostility, and is consistent with honorable warfare,
the common law of war allows even capital punishment for clandestine or treacherous attempts to injure an enemy, because they
are so dangerous, and it is so difficult to guard against them.
102
The law of war, like the criminal law regarding other offenses, makes no difference on account of the difference of sexes,
concerning the spy, the war-traitor, or the war-rebel.
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, at a great distance from it, by the chief commander of the
army in the field.
104
A successful spy or war-traitor, safely returned to his own army, and afterwards captured as an enemy, is not subject to
punishment for his acts as a spy or war-traitor, but he may be held in closer custody as a person individually dangerous.
Exchange of Prisoners—Flags of Truce—Flags of Protection
105
Exchanges of prisoners take place—number for number—rank for rank—wounded for wounded—with added
condition for added condition—such, for instance, as not to serve for a certain period.
106
In exchanging prisoners of war, such numbers of persons of inferior rank may be substituted as an equivalent for one of
superior rank as may be agreed upon by cartel, which requires the sanction of the government, or of the commander of the army
in the field.
107
A prisoner of war is in honor bound truly to state to the captor his rank; and he is not to assume a lower rank than
belongs to him, in order to cause a more advantageous exchange, nor a higher rank, for the purpose of obtaining better treatment.
Offenses to the contrary have been justly punished by the commanders of released prisoners, and may be good cause for
refusing to release such prisoners.
108
The surplus number of prisoners of war remaining after an exchange has taken place is sometimes released either for the
payment of a stipulated sum of money, or, in urgent cases, of provision, clothing, or other necessaries.
Such arrangement, however, requires the sanction of the highest authority.
109
The exchange of prisoners of war is an act of convenience to both belligerents. If no general cartel has been concluded,
it can not be demanded by either of them. No belligerent is obliged to exchange prisoners of war.
A cartel is voidable as soon as either party has violated it.
110
No exchange of prisoners shall be made except after complete capture, and after an accurate account of them, and a list of
the captured officers, has been taken.
111
The bearer of a flag of truce can not insist upon being admitted. He must always be admitted with great caution.
Unnecessary frequency is carefully to be avoided.
112
If the bearer of a flag of truce offer himself during an engagement, he can be admitted as a very rare exception only. It
is no breach of good faith to retain such flag of truce, if admitted during the engagement. Firing is not required to cease
on the appearance of a flag of truce in battle.
113
If the bearer of a flag of truce, presenting himself during an engagement, is killed or wounded, it furnishes no ground of
complaint whatever.
114
If it be discovered, and fairly proved, that a flag of truce has been abused for surreptitiously obtaining military
knowledge, the bearer of the flag thus abusing his sacred character is deemed a spy.
So sacred is the character of a flag of truce, and so necessary is its sacredness, that while its abuse is an especially
heinous offense, great caution is requisite, on the other hand, in convicting the bearer of a flag of truce as a spy.
115
It is customary to designate by certain flags (usually yellow) the hospitals in places which are shelled, so that the
besieging enemy may avoid firing on them. The same has been done in battles, when hospitals are situated within the field of
the engagement.
116
Honorable belligerents often request that the hospitals within the territory of the enemy may be designated, so that they
may be spared.
An honorable belligerent allows himself to be guided by flags or signals of protection as much as the contingencies and
the necessities of the fight will permit.
117
It is justly considered an act of bad faith, of infamy or fiendishness, to deceive the enemy by flags of protection. Such
act of bad faith may be good cause for refusing to respect such flags.
118
The besieging belligerent has sometimes requested the besieged to designate the buildings containing collections of works
of art, scientific museums, astronomical observatories, or precious libraries, so that their destruction may be avoided as
much as possible.
The Parole
119
Prisoners of war may be released from captivity by exchange, and, under certain circumstances, also by parole.
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 been dismissed, wholly or partially, from the power of the captor.
121
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 belligerents.
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 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.
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 cases of breaking the parole are patent acts, and can be visited with the punishment of death;
but the pledge does not refer to internal service, such as recruiting or drilling the recruits, fortifying places not
besieged, quelling civil commotions, fighting against belligerents unconnected with the paroling belligerents, or to civil or
diplomatic service for which the paroled officer may be 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.
Armistice—Capitulation
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 further than to require a total cessation of hostilities
along the front of both belligerents.
If conditions be agreed upon, they should be clearly expressed, and must be rigidly adhered to by both parties. If either
party violates any express condition, the armistice may be declared null and void by the other.
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.
An armistice may be concluded for a definite time; or for an indefinite time, during which either belligerent may resume
hostilities on giving the notice agreed upon to the other.
138
The motives which induce the one or the other belligerent to conclude an armistice, whether it be expected to be
preliminary to a treaty of peace, or to prepare during the armistice for a more vigorous prosecution of the war, does in no
way affect the character of the armistice itself.
139
An armistice is binding upon the belligerents from the day of the agreed commencement; but the officers of the armies are responsible from the day only when they receive
official information of its existence.
140
Commanding officers have the right to conclude armistices binding on the district over which their command extends, but
such armistice is subject to the ratification of the superior authority, and ceases so soon as it is made known to the enemy
that the armistice is not ratified, even if a certain time for the elapsing between giving notice of cessation and the
resumption of hostilities should have been stipulated for.
141
It is incumbent upon the contracting parties of an armistice to stipulate what intercourse of persons or traffic between
the inhabitants of the territories occupied by the hostile armies shall be allowed, if any.
If nothing is stipulated the intercourse remains suspended, as during actual hostilities.
142
An armistice is not a partial or a temporary peace; it is only the suspension of military operations to the extent agreed
upon by the parties.
143
When an armistice is concluded between a fortified place and the army besieging it, it is agreed by all the authorities on
this subject that the besieger must cease all extension, perfection, or advance of his attacking works as much so as from
attacks by main force.
But as there is a difference of opinion among martial jurists, whether the besieged have the right to repair breaches or
to erect new works of defense within the place during an armistice, this point should be determined by express agreement
between the parties.
144
So soon as a capitulation is signed, the capitulator has no right to demolish, destroy, or injure the works, arms, stores,
or ammunition, in his possession, during the time which elapses between the signing and the execution of the capitulation,
unless otherwise stipulated in the same.
145
When an armistice is clearly broken by one of the parties, the other party is released from all obligation to observe
it.
146
Prisoners taken in the act of breaking an armistice must be treated as prisoners of war, the officer alone being
responsible who gives the order for such a violation of an armistice. The highest authority of the belligerent aggrieved may
demand redress for the infraction of an armistice.
147
Belligerents sometimes conclude an armistice while their plenipotentiaries are met to discuss the conditions of a treaty
of peace; but plenipotentiaries may meet without a preliminary armistice; in the latter case, the war is carried on without
any abatement.
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 the hostile government, an outlaw, who may be slain without trial by any captor, any more than the modern law of peace
allows such intentional outlawry; on the contrary, it abhors such outrage. The sternest retaliation should follow the murder committed in consequence of such proclamation,
made by whatever authority. Civilized nations look with horror upon offers of rewards for the assassination of enemies as
relapses into barbarism.
Insurrection—Civil War—Rebellion
149
Insurrection is the rising of people in arms against their government, or a portion of it, or against one or more of its
laws, or against an officer or officers of the government. It may be confined to mere armed resistance, or it may have
greater ends in view.
150
Civil war is war between two or more portions of a country or state, each contending for the mastery of the whole, and
each claiming to be the legitimate government. The term is also sometimes applied to war of rebellion, when the rebellious
provinces or portion of the state are contiguous to those containing the seat of government.
151
The term "rebellion" is applied to an insurrection of large extent, and is usually a war between the legitimate government
of a country and portions of provinces of the same who seek to throw off their allegiance to it and set up a government of
their own.
152
When humanity induces the adoption of the rules of regular war toward rebels, whether the adoption is partial or entire,
it does in no way whatever imply a partial or complete acknowledgment of their government, if they have set up one, or of
them, as an independent and sovereign power.
Neutrals have no right to make the adoption of the rules of war by the assailed government toward rebels the ground of their
own acknowledgment of the revolted people as an independent power.
153
Treating captured rebels as prisoners of war, exchanging them, concluding of cartels, capitulations, or other warlike
agreements with them; addressing officers of a rebel army by the rank they may have in the same; accepting flags of truce;
or, on the other hand, proclaiming martial law in their territory, or levying war-taxes or forced loans, or doing any other
act sanctioned or demanded by the law and usages of public war between sovereign belligerents, neither proves nor establishes
an acknowledgment of the rebellious people, or of the government which they may have erected, as a public or sovereign power.
Nor does the adoption of the rules of war toward rebels imply an engagement with them extending beyond the limits of these
rules. It is victory in the field that ends the strife and settles the future relations between the contending parties.
154
Treating, in the field, the rebellious enemy according to the law and usages of war has never prevented the legitimate
government from trying the leaders of the rebellion or chief rebels for high treason, and from treating them accordingly,
unless they are included in a general amnesty.
155
All enemies in regular war are divided into two general classes—that is to say, into combatants and noncombatants,
or unarmed citizens of the hostile government.
The military commander of the legitimate government, in a war of rebellion, distinguishes between the loyal citizen in the
revolted portion of the country and the disloyal citizen. The disloyal citizens may further be classified into those
citizens known to sympathize with the rebellion
without positively aiding it, and those who, without taking up arms, give positive aid and comfort to the rebellious enemy
without being bodily forced thereto.
156
Common justice and plain expediency require that the military commander protect the manifestly loyal citizens, in revolted
territories, against the hardships of the war as much as the common misfortune of all war admits.
The commander will throw the burden of the war, as much as lies within his power, on the disloyal citizens, of the
revolted portion or province, subjecting them to a stricter police than the noncombatant enemies have to suffer in regular
war; and if he deems it appropriate, or if his government demands of him that every citizen shall, by an oath of allegiance,
or by some other manifest act, declare his fidelity to the legitimate government, he may expel, transfer, imprison, or fine
the revolted citizens who refuse to pledge themselves anew as citizens obedient to the law and loyal to the government.
Whether it is expedient to do so, and whether reliance can be placed upon such oaths, the commander or his government has
the right to decide.
157
Armed or unarmed resistance by citizens of the United States against the lawful movements of their troops is levying war
against the United States, and is therefore treason.
MANUAL OF THE LAWS OF WAR ON LAND
PREPARED BY THE INSTITUTE OF INTERNATIONAL LAW, AND UNANIMOUSLY ADOPTED AT ITS MEETING AT OXFORD ON SEPTEMBER 9,
1880[496]
1. The state of war admits of the performance of acts of violence on the part only of the armed forces of the belligerent
states.
Persons not forming part of a belligerent armed force must abstain from the performance of such acts.
A distinction being implied in the above rule between the individuals of whom the armed force of a state is composed and
other subjects of a State, it becomes necessary to define an "armed force."
2. The armed force of a state comprehends—
§ 1. The army properly so called, including militia.
§ 2. National Guards Landsturm, and all corps which satisfy the following requirements:
(a) That of being under the direction of a responsible leader.
(b) That of wearing a uniform or a distinctive mark, which latter must be fixed, and capable of being recognized at
a distance.
(c) That of bearing arms openly.
§ 3. Crews of vessels of war, and other members of the naval forces of the country.
§ 4. Inhabitants of a territory not militarily occupied
by the enemy, who, on the approach of his army, take up arms spontaneously and openly for the purpose of
combating it. Such persons form part of the armed force of the State, even though, owing to want of time, they have not
organized themselves militarily.
3. Every belligerent armed force is bound to conform to the laws of war.
The sole object during war to which states can legitimately direct their hostilities being the enfeeblement of the
military strength of the enemy. (Declaration of St. Petersburg of the 4/16th November, 1868.)
4. The laws of war do not allow belligerents an unlimited freedom of adopting whatever means they may choose for injuring
their enemy. Especially they must abstain from all useless severity, and from disloyal, unjust, or tyrannical acts.
5. Military conventions made between belligerents during war—such as armistices and capitulations—must be
scrupulously observed and respected.
6. No invaded territory is considered to be conquered until war is ended. Until then the occupying state only exercises a
de facto control of an essentially provisional nature.
I. Of Hostilities
A. RULES OF CONDUCT WITH RESPECT TO PERSONS
(a) Of the inoffensive population
Acts of violence being permissible only between armed forces (Art. 1),
7. It is forbidden to maltreat the inoffensive portion of the population.
(b) Of means of injuring the enemy
Loyalty of conduct being enjoined (Art. 4),
8. It is forbidden:—
(a) To employ poison in any form.
(b) To endeavor to take the life of an enemy in a traitorous manner,—e.g. by employing assassins, or
by simulating surrender.
(c) To attack the enemy while concealing the distinctive marks of an armed force.
(d) To make improper use of the national flag, of signs of military ranks, or of the uniform of the enemy, of a
flag of truce, or of the protective marks prescribed by the Convention of Geneva. (See Arts. 17 and 40.)
It being obligatory to abstain from useless severities (Art. 4),
9. It is forbidden:—
(a) To use arms, projectiles, or substances calculated to inflict superfluous suffering, or to aggravate wounds,
particularly projectiles which, being explosible, or charged with fulminating or inflammable substances, weigh less than four
hundred grams. (Declaration of St. Petersburg.)[497]
(b) To mutilate or kill an enemy who has surrendered at discretion, or is disabled, and to declare that quarter
will not be given, even if the force making such declaration does not claim quarter for itself.
(c) Of wounded, sick, and the hospital staff
The wounded, the sick, and the hospital staff are exempted from unnecessary severities, which might otherwise touch them,
by the following rules (Arts. 10 to 18), drawn from the Convention of Geneva.
10. Wounded and sick soldiers must be brought in and cared for, to whatever nation they belong.
11. When circumstances permit, officers commanding in chief, immediately after a combat, may send in enemy soldiers wounded during it to the advanced posts of the enemy,
with the consent of the latter.
12. The operation of moving sick and wounded is a neutral act, and the staff engaged in it is neutral.
13. The staff of the hospitals and ambulances—namely, surgeons, clerks, hospital orderlies, and other persons
employed in the sanitary, administrative, and transport departments, as well as chaplains, and members and agents of
societies duly authorized to assist the official hospital staff—is considered to be neutral while exercising its
functions, and so long as there are wounded to remove or succor.
14. The staff specified in the preceding Article must continue after occupation by an enemy has taken place to give its
attention to the sick and wounded, to such extent as may be needful, in the ambulance or hospital which it serves.
15. When such staff applies for leave to retire, it falls to the officer commanding the occupying troops to fix the date
of departure. After request, however, has been made, the departure of the staff can only be postponed for a short time, and
for reasons of military necessity.
16. Measures must, if possible, be taken to secure to the neutralized staff fitting maintenance and allowance when it
falls into the hands of the enemy.
17. The neutralized hospital staff must wear a white armlet with a red cross on it. The armlet can be issued only by the
military authorities.
18. It is the duty of the generals of the belligerent Powers to appeal to the humanity of the inhabitants of the country
in which they are operating, for the purpose of inducing them to succor the wounded, pointing out to them at the same time
the advantages which result to themselves therefrom (Arts. 36 and 59). Those who respond to any such appeal are entitled to
special protection.
(d) Of the dead
19. It is forbidden to strip and mutilate the dead lying on the field of battle.
20. The dead must never be buried before such indications of their identity (especially "livrets, numeros," etc.) as they
may have upon them have been collected. The indications thus gathered upon enemy dead are communicated to their army or
government.
(e) Who can be made prisoners of war
21. Persons forming part of the armed force of belligerents, on falling into the power of the enemy, must be treated as
prisoners of war, conformably to Article 61, and those following it.
This rule applies to messengers openly carrying official dispatches, and to civil aëronauts employed to observe the
enemy or to keep up communication between different parts of the army or territory.
22. Persons who follow an army without forming part of it, such as correspondents of newspapers, sutlers, contractors,
etc., on falling into the power of the enemy, can only be detained for so long a time as may be required by military
necessity.
(f) Of spies
23. Persons captured as spies cannot demand to be treated as prisoners of war.
24. Persons belonging to a belligerent armed force are not to be considered spies on entering, without the cover of a
disguise, within the area of the actual operations of the enemy. Messengers, also, who openly carry official dispatches, and
aëronauts (Art. 21) are not to be considered spies.
To guard against the abuses to which accusations of acting as a spy give rise in time of war, it must clearly be
understood that
25. No person accused of being a spy can be punished without trial.
It is moreover admitted that
26. A spy who succeeds in quitting a territory occupied
by the enemy, cannot be held responsible for acts done before so leaving, if he afterwards falls into the
enemy's hands.
(g) Of flags of truce
27. A person who is authorized by one of the belligerents to enter communication with the other belligerent, and presents
himself to the latter with a white flag, is inviolable.
28. He may be accompanied by a trumpeter or drummer, by a flag-bearer, and, if necessary by a guide, and an interpreter,
all of whom are also inviolable.
The necessity of this privilege is evident, especially as its exercise is frequently required in the simple interests of
humanity. It must not, however, be so used as to be prejudicial to the opposite party.
Hence,
29. The commander to whom a flag of truce is sent is not obliged to receive its bearer under all circumstances.
30. The commander who receives a flag of truce has the right to take all necessary measures to prevent the presence of an
enemy within his lines from being prejudicial to him.
The bearer of a flag of truce, and those who accompany him, are bound to act with good faith toward the enemy who receives
them (Art. 4).
31. If the bearer of a flag of truce abuse the confidence which is accorded to him, he may be temporarily detained; and if
it be proved that he has made use of his privileges to suborn to traitorous practices, he loses his right of
inviolability.
B. RULES OF CONDUCT WITH REGARD TO THINGS
(a) Of the means of exercising violence. Of bombardment
Mitigations of the extreme rights of violence are necessarily consequent upon the rule that useless severity shall not be
indulged in (Art. 4). It is thus that
32. It is forbidden
(a) To pillage, even in the case of towns taken by assault.
(b) To destroy public or private property, unless its destruction be required by an imperative necessity of
war.
(c) To attack and bombard undefended places.
The right of belligerents to have recourse to bombardment against fortresses and other places in which the enemy is
intrenched is not contestable, but humanity requires that this form of violence shall be so restrained as to limit as much as
possible its effects to the armed forces of the enemy and to their defenses.
Hence,
33. The commander of an attacking force must do everything in his power to intimate to the local authorities his intention
of bombarding, before the bombardment commences, except when bombardment is coupled with assault.
34. In cases of bombardment, all necessary measures ought to be taken to spare, so far as possible, buildings devoted to
religion, the arts, sciences, and charity, hospitals, and places in which sick and wounded are kept; provided always that
such buildings are not at the same time utilized, directly or indirectly, for defense.
It is the duty of the besieged to indicate these buildings by visible signs, notified to the besieger beforehand.
(b) Of the sanitary matériel
The rules (Arts. 10 and those following) for the protection of the wounded would be insufficient if special protection
were not also given to hospitals. Consequently, in accordance with the Convention of Geneva,
35. The ambulances and hospitals used by armies are recognized as being neutral, and must be protected and respected as
such by the belligerents, so long as there are sick and wounded in them.
36. A like rule applies to private buildings, or parts of private buildings, in which sick and wounded are collected and
cared for.
37. The neutrality of ambulances and hospitals ceases to
exist if they are guarded by a military force, a police post being alone permissible.
38. The matériel of military hospitals remains subject to the laws of war; persons attached to the hospitals
can only, therefore, carry away their private property on leaving. Ambulances, on the other hand, preserve their
matériel.
39. Under the circumstances contemplated in the foregoing paragraph, the term "ambulance" is applicable to field hospitals
and other temporary establishments which follow the troops to the field of battle for the purpose of receiving sick and
wounded.
40. A distinctive flag and uniform, bearing a red cross upon a white ground, is adopted for hospitals, ambulances, and
things and persons connected with the movement of sick and wounded. It must always be accompanied by the national flag.
II. Of Occupied Territory
A. DEFINITION
41. A territory is considered to be occupied when, 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.
B. RULES OF CONDUCT WITH REGARD TO PERSONS
Since new relations arise from the provisional change of government,
42. 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.
43. The occupier must take all measures in his power to reëstablish and to preserve public order.
44. The occupier must, so far as possible, retain the laws which were in vigor in the country in time of peace, modifying,
suspending, or replacing them only in case of necessity.
45. 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 fulfill 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.
46. 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,
47. 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 (Art. 1).
48. 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 defense, nor to take part in
military operations against their own country (Art. 4).
49. Human life, female honor, religious beliefs, and forms of worship must be respected. Interference with family life is
to be avoided (Art. 4).
C. RULES OF CONDUCT WITH RESPECT TO THINGS
(a) Public property
Although an occupier, for the purpose of governing the occupied territory, takes the place, in a certain sense, of the
legitimate government, he does not possess unrestricted powers. So long as the ultimate fate of the territory is undecided—that is to say, until the conclusion of
peace—the occupier is not at liberty to dispose freely of such property of his enemy as is not immediately serviceable
for the operations of war.
Hence,
50. The occupier can appropriate only money and debts (including negotiable instruments) belonging to the State, arms,
stores, and, in general, such movable property of the State as can be used for the purposes of military operations.
51. Means of transport (State railways and their rolling stock, State vessels, etc.), as well as land telegraphs and
landing cables, can only be sequestrated for the use of the occupier. Their destruction is forbidden, unless it be required
by the necessities of war. They are restored at the peace in the state in which they then are.
52. The occupier can only enjoy the use of, and do administrative acts with respect to immovable property, such as
buildings, forests, and agricultural lands belonging to the enemy State (Art. 6).
Such property cannot be alienated, and must be maintained in good condition.
53. The property of municipal and like bodies, that of religious, charitable, and educational foundations, and that
appropriated to the arts and sciences, are exempt from seizure.
All destruction or intentional damage of buildings devoted to the above purposes, of historical monuments, of archives,
and of works of art or science, is forbidden, unless it be imperatively demanded by the necessities of war.
(b) Private property
If the powers of an occupier are limited with respect to the property of the enemy state, a fortiori they are
limited with respect to the property of private persons.
54. Private property, whether held by individuals or by corporations, companies, or other bodies, must be respected, and
cannot be confiscated except to the extent specified in the following Articles.
55. Means of transport (railways and their rolling stock, vessels, etc.), telegraphs, stores of arms and munitions of war,
may be seized by the occupier, notwithstanding that they belong to individuals or companies; but they must be restored if
possible at the conclusion of peace, and compensation for the loss inflicted on their owners must be provided.
56. Supplies in kind (requisitions) demanded from districts or individuals must correspond to the generally recognized
necessities of war, and must be proportioned to the resources of the country.
Requisitions can only be made by express authorization of the officer commanding in the occupied locality.
57. The occupier can only levy such taxes and duties as are already established in the occupied State. He uses them to
satisfy the expenses of administration to the extent that they have been so used by the legitimate government.
58. The occupier can only levy contributions in money as the equivalent of unpaid fines, or unpaid taxes, or of supplies
in kind, which have not been duly made.
Contributions in money can only be imposed by the order, and on the responsibility, of the general in chief or of the
supreme civil authority established in the occupied territory; and their incidence must as far as possible correspond to that
of the taxes already in existence.
59. In apportioning the burdens arising from the billeting of troops and contributions of war, zeal shown by individuals
in caring for the wounded is to be taken into consideration.
60. Receipts are to be given for the amount of contributions of war, and for articles requisitioned when payment for them
is not made. Measures must be taken to secure that these receipts shall be given always, and in proper form.
III. Of Prisoners of War
A. THE STATE OF CAPTIVITY
Captivity is neither a punishment inflicted on prisoners of war (Art. 21) nor an act of vengeance; it is merely a
temporary detention which is devoid of all penal
character. In the following Articles, regard is had both to the consideration due to prisoners of war and to the necessity of
keeping them in safe custody.
61. Prisoners of war are at the disposal of the enemy government, not of the individuals or corps which have captured
them.
62. They are subjected to the laws and rules in force in the enemy army.
63. They must be treated with humanity.
64. All that belongs to them personally, except arms, remains their property.
65. Prisoners are bound to state, if asked, their true name and rank. If they do not do so, they can be deprived of all or
any of the mitigations of imprisonment enjoyed by other prisoners circumstanced like themselves.
66. Prisoners can be subjected to internment in a town, fortress, camp, or any other place, definite bounds being assigned
which they are not allowed to pass; but they can only be confined in a building when such confinement is indispensable for
their safe detention.
67. Insubordination justifies whatever measures of severity may be necessary for its repression.
68. Arms may be used against a fugitive prisoner after summons to surrender.
If he is retaken before he has rejoined his army, or has escaped from the territory under the control of his captor, he
may be punished, but solely in a disciplinary manner, or he may be subjected to more severe surveillance than that to which
prisoners are commonly subjected. But if he be captured afresh, after having accomplished his escape, he is not punishable
unless he has given his parole not to escape, in which case he may be deprived of his rights as prisoner of war.
69. The government detaining prisoners is charged with their maintenance.
In default of agreement between the belligerents on this point, prisoners are given such clothing and rations as the
troops of the capturing State receive in time of peace.
70. Prisoners cannot be compelled to take part in any manner in the operations of the war, nor to give information as to
their country or army.
71. They may be employed upon public works which have no direct relation to the operations carried on in the theater of
war, provided that labor be not exhausting in kind or degree, and provided that the employment given to them is neither
degrading with reference to their military rank, if they belong to the army, nor to their official or social position, if
they do not so belong.
72. When permission is given to them to work for private employers, their wages may be received by the detaining
government, which must either use it in procuring comforts for them, or must pay it over to them on their liberation, the
cost of their maintenance being if necessary first deducted.
B. TERMINATION OF CAPTIVITY
The reasons which justify the detention of a captured enemy last only during the continuance of war.
Consequently,
73. The captivity of prisoners of war ceases as of course on the conclusion of peace; but the time and mode of their
actual liberation is a matter for agreement between the governments concerned.
In virtue of the Convention of Geneva,
74. Captivity ceases as of course, before the date fixed upon for general liberation, in the case of wounded or sick
prisoners who, after being cured, are found to be incapable of further service.
The captor must send these back to their country so soon as their incapacity is established.
75. Prisoners can be released by means of a cartel of exchange negotiated between the belligerent parties.
76. Prisoners can be set at liberty on parole, if the laws of their country do not forbid it. The conditions of their
parole must be clearly stated. If so set at liberty, they are bound, on their honor, to fulfill scrupulously the engagements
which they have freely entered into. Their government, on its part, must neither require nor accept from them any service
inconsistent with their pledged word.
77. A prisoner cannot be compelled to accept his liberty on parole. In the same way the enemy government is not obliged to
accede to a request made by a prisoner to be released on parole.
78. Prisoners liberated on parole and retaken in arms against the government to which they are pledged, can be deprived of
the rights of prisoners of war, unless they have been included among prisoners exchanged unconditionally under a cartel of
exchange negotiated subsequently to their liberation.
IV. Persons Interned in Neutral Territory
It is universally admitted that a neutral State cannot lend assistance to belligerents, and especially cannot allow them
to make use of its territory without compromising its neutrality. Humanity, on the other hand, demands that a neutral State
shall not be obliged to repel persons who beg refuge from death or captivity. The following rules are intended to reconcile
these conflicting requirements:
79. The neutral State within the territory of which bodies of troops or individuals belonging to the armed force of the
belligerents take refuge, must intern them at a place as distant as possible from the theater of war. It must do the same
with persons using its territory as a means of carrying on military operations.
80. Interned persons may be kept in camps, or may be shut up in fortresses or other places of safety. The neutral State
decides whether officers may be left free on parole on an engagement being entered into by them not to leave the neutral
territory without authorization.
81. In default of special convention regulating the maintenance of interned persons, the neutral State supplies them with
rations and clothes, and bestows care upon them in other ways to such extent as is required by humanity.
It also takes care of the matériel of war which the interned persons may have had with them on entering the
neutral territory.
On the conclusion of peace, or sooner if possible, the expenses occasioned by the internment are repaid to the neutral
State by the belligerent State to which the interned persons belong.
82. The provisions of the Convention of Geneva of the 22d August, 1864 (see above, Articles 10 to 18, 35 to 40, and 74)
are applicable to the hospital staff, as well as to the sick and wounded who have taken refuge in, or been carried into,
neutral territory.
83. Sick and wounded who are not prisoners may be moved across neutral territory, provided that the persons accompanying
them belong solely to the hospital staff, and that any matériel carried with them is such only as is required
for the use of sick and wounded. The neutral State, across the territory of which sick and wounded are moved, is bound to
take whatever measures of control are required to secure the strict observance of the above conditions.
When infractions of the foregoing rules take place, the guilty persons should be punished, after trial, by the belligerent
within whose power they are.
84. Persons violating the laws of war are punishable in such way as the penal law of the country may prescribe.
But this mode of repressing acts contrary to the laws of war being only applicable when the guilty person can be reached,
the injured party has no resource other than the use of reprisals when the guilty person cannot be reached, if the acts
committed are sufficiently serious to render it
urgently necessary to impress respect for the law upon the enemy. Reprisals, the occasional necessity of which is to be
deplored, are an exceptional practice, at variance with the general principles that the innocent must not suffer for the
guilty, and that every belligerent ought to conform to the laws of war, even without reciprocity on the part of the enemy.
The right to use reprisals is tempered by the following restrictions:—
85. Reprisals are forbidden whenever the wrong which has afforded ground of complaint has been repaired.
86. In the grave cases in which reprisals become an imperative necessity, their nature and scope must never exceed the
measure of the infraction of the laws of war committed by the enemy.
They can only be made with the authorization of the commander in chief.
They must, in all cases, be consistent with the rules of humanity and morality.
CONFERENCE AT BRUSSELS, 1874, ON THE RULES OF MILITARY WARFARE[498]
Of the Rights of Belligerents One toward the Other
Chapter I. Of Military Authority over the Hostile State
Article 1. A territory is considered as occupied when it is actually placed under the authority
of the hostile army.
The occupation only extends to those territories where this authority is established and can be exercised.
Art. 2. The authority of the legal power being suspended, and having actually passed into the
hands of the occupier, he shall take every step in his power to reëstablish and secure, as far as possible, public
safety and social order.
Art. 3. 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. 4. 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 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. 5. The army of occupation shall only levy such taxes, dues, duties, and tolls as are
already established for the benefit of the State, or their equivalent if it be impossible to collect them, and this shall be
done as far as possible in the form 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. 6. The army occupying a territory shall take possession only of the specie, the funds, and
bills, etc., which are the actual property of the state; the depots of arms, means of transport, magazines, and supplies,
and, in general, all the personal property of the State, which may be of service in carrying on the war.
Railway plant, land telegraphs, steam and other vessels, not included in cases regulated by maritime law, as well as
depots of arms, and generally every kind of munitions of war, although belonging to companies or to private individuals, are
to be considered equally as means of aid in carrying on a war, which cannot be left 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.
Art. 7. 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, and to administer them according to the laws of
usufruct.
Art. 8. The property of parishes, 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.
Chapter II. Of those who are to be recognized as Belligerents; of Combatants and
Non-combatants
Art. 9. 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:
1. 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.
In those countries where the militia form the whole or part of the army, they shall be included under the denomination of
"army."
Art. 10. 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 themselves in conformity
with Article 9, shall be considered as belligerents, if they respect the laws and customs of war.
Art. 11. The armed forces of the belligerents may be composed of combatants and non-combatants.
In the event of being captured by the enemy, both one and the other shall enjoy the rights of prisoners of war.
Chapter III. Of the Means of injuring the Enemy; of those which are permitted or should be
forbidden
Art. 12. The laws of war do not allow to belligerents an unlimited power as to the choice of
means of injuring the enemy.
Art. 13. According to this principle are strictly forbidden:
(a) The use of poison or poisoned weapons.
(b) Murder by treachery of individuals belonging to the hostile nation or army.
(c) Murder of an antagonist who, having laid down his arms, or having no longer the means of defending himself, has
surrendered at discretion.
(d) The declaration that no quarter will be given.
(e) The use of arms, projectiles, or substances which may cause unnecessary suffering, as well as the use of the
projectiles prohibited by the declaration of St. Petersburg in 1868.[499]
(f) Abuse of the flag of truce, the national flag, or the military insignia or uniform of the enemy, as well as the
distinctive badges of the Geneva Convention.
(g) All destruction or seizure of the property of the enemy which is not imperatively required by the necessity of
war.
Art. 14. Stratagems and the employment of means necessary to procure intelligence respecting
the enemy or the country (subject to the provisions of Art. 36), are considered as lawful means.
Chapter IV. Of Sieges and Bombardments
Art. 15. Fortified places are alone liable to be besieged. Towns, agglomerations of houses or
villages, which are open and undefended, cannot be attacked or bombarded.
Art. 16. But if a town or fortress, agglomeration of houses, or village be defended, the
commander of the attacking forces should, before commencing a bombardment, and except in the case of surprise, do all in his
power to warn the authorities.
Art. 17. In the like case all necessary steps should be taken to spare, as far as possible,
buildings devoted to religion, arts, sciences, and charity, hospitals and places where sick and wounded are collected, on
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.
Art. 18. A town taken by storm should not be given up to the victorious troops to plunder.
Chapter V. Of Spies
Art. 19. No one shall be considered as a spy but those who, acting secretly or under false
pretenses, collect, or try to collect information in districts occupied by the enemy with the intention of communicating it
to the opposing force.
Art. 20. A spy, if taken in the act, shall be tried and treated according to the laws in force
in the army which captures him.
Art. 21. If a spy, who rejoins the army to which he belongs, is subsequently captured by the
enemy, he is to be treated as a prisoner of war, and incurs no responsibility for his previous acts.
Art. 22. Military men who have penetrated within the zone of operations of the enemy's army,
with the intention of collecting information, are not considered as spies if it has been possible to recognize their military
character.
In like manner military men (and also non-military persons carrying out their mission openly), charged with the
transmission of dispatches either to their own army or to that of the enemy, shall not be considered as spies if captured by
the enemy.
To this class belong also, if captured, individuals sent in balloons to carry dispatches, and generally to keep up
communications between the different parts of an army, or of a territory.
Chapter VI. Of Prisoners of War
Art. 23. Prisoners of war are lawful and disarmed enemies. They are in the power of the enemy's
Government but not of the individuals or of the corps who made them prisoners.
They should be treated with humanity.
Every act of insubordination authorizes the necessary measures of severity to be taken with regard to them.
All their personal effects, except their arms, are considered to be their own property.
Art. 24. Prisoners of war are liable to internment in a town, fortress, camp, or in any
locality whatever, under an obligation not to go beyond certain fixed limits; but they may not be placed in confinement
unless absolutely necessary as a measure of security.
Art. 25. Prisoners of war may be employed on certain public works which have no immediate
connection with the operations on the theater of war, provided the employment be not excessive nor humiliating to their
military rank, if they belong to the army, or to their official or social position if they do not belong to it.
They may also, subject to such regulations as may be drawn up by the military authorities, undertake private work.
The pay they receive will go towards ameliorating their position, or will be put to their credit at the time of their
release. In this case the cost of their maintenance may be deducted from their pay.
Art. 26. Prisoners of war cannot be compelled in any way to take any part whatever in carrying
on the operations of the war.
Art. 27. The Government in whose power are the prisoners of war, undertakes to provide for
their maintenance.
The conditions of such maintenance may be settled by a mutual understanding between the belligerents.
In default of such an understanding, and as a general principle, prisoners of war shall be treated, as regards food and
clothing, on the same footing as the troops of the Government who made them prisoners.
Art. 28. Prisoners of war are subject to the laws and regulations in force in the army in whose
power they are.
Arms may be used, after summoning, against a prisoner attempting to escape. If retaken, he is subject to summary
punishment or to a stricter surveillance.
If after having escaped he is again made prisoner, he is not liable to any punishment for his previous escape.
Art. 29. Every prisoner is bound to declare, if interrogated on the point, his true names and
rank; and in the case of his infringing this rule, he will incur a restriction of the advantages granted to the prisoners of
the class to which he belongs.
Art. 30. The exchange of prisoners of war is regulated by mutual agreement between the
belligerents.
Art. 31. Prisoners of war may be released on parole if the laws of their country allow of it;
and in such a case they are bound on their personal honor to fulfill scrupulously, as regards their own Government, as well
as that which made them prisoners, the engagements they have undertaken.
In the same case their own Government should neither demand nor accept from them any service contrary to their parole.
Art. 32. A prisoner of war cannot be forced to accept release on parole, nor is the enemy's
Government obliged to comply with the request of a prisoner claiming to be released on parole.
Art. 33. Every prisoner of war liberated on parole, and retaken carrying arms against the
Government to which he had pledged his honor, may be deprived of the rights accorded to prisoners of war, and may be brought
before the tribunals.
Art. 34. Persons in the vicinity of armies, but who do not directly form part of them, such as
correspondents, newspaper reporters, vivandiers, contractors, etc., may also be made prisoners of war.
These persons should, however, be furnished with a permit, issued by a competent authority, as well as with a certificate
of identity.
Chapter VII. Of Non-combatants and Wounded
Art. 35. The duties of belligerents, with regard to the treatment of sick and wounded, are
regulated by the Convention of Geneva of the 22d
August, 1864, subject to the modifications which may be introduced into that Convention.
Of the Rights of Belligerents with Reference to Private Individuals
Chapter I. Of the Military Power with respect to Private Individuals
Art. 36. The population of an occupied territory cannot be compelled to take part in military
operations against their own country.
Art. 37. The population of occupied territories cannot be compelled to swear allegiance to the
enemy's power.
Art. 38. The honor and rights of the family, the life and property of individuals, as well as
their religious convictions and the exercise of their religion, should be respected.
Art. 39. Pillage is expressly forbidden.
Chapter II. Of Requisitions and Contributions
Art. 40. As private property should be respected, the enemy will demand from parishes or the
inhabitants, only such payments and services as are connected with the necessities of war generally acknowledged in
proportion to the resources of the country, and which do not imply, with regard to the inhabitants, the obligation of taking
part in the operations of war against their own country.
Art. 41. The enemy, in levying contributions, whether as equivalent for taxes (see Art. 5), or
for payments which should be made in kind, or as fines, will proceed, as far as possible, according to the rules of the
distribution and assessment of the taxes in force in the occupied territory.
The civil authorities of the legal Government will afford their assistance, if they have remained in office.
Contributions can be imposed only on the order and on the responsibility of the General in chief, or of the superior civil
authority established by the enemy in the occupied territory.
For every contribution a receipt shall be given to the person furnishing it.
Art. 42. Requisitions shall be made only by the authority of the commandant of the locality
occupied.
For every requisition an indemnity shall be granted, or a receipt given.
Of Relations between Belligerents
Chapter I. Of Modes of Communication and Envoys
Art. 43. An individual authorized by one of the belligerents to confer with the other, on
presenting himself with a white flag, accompanied by a trumpeter (bugler or drummer), or also by a flag-bearer, shall be
recognized as the bearer of a flag of truce. He, as well as the trumpeter (bugler or drummer), and the flag-bearer, who
accompanies him, shall have the right of inviolability.
Art. 44. The commander, to whom a bearer of a flag of truce is dispatched, is not obliged to
receive him under all circumstances and conditions.
It is lawful for him to take all measures necessary for preventing the bearer of the flag of truce taking advantage of his
stay within the radius of the enemy's position, to the prejudice of the latter; and if the bearer of the flag of truce is
found guilty of such a breach of confidence, he has the right to detain him temporarily.
He may equally declare beforehand that he will not receive bearers of flags of truce during a certain period. Envoys
presenting themselves after such a notification from the side to which it has been given, forfeit their right of
inviolability.
Art. 45. The bearer of a flag of truce forfeits his right of inviolability, if it be proved in
a positive and irrefutable manner that he has taken advantage of his privileged position to incite to, or commit an act of
treachery.
Chapter II. Of Capitulations
Art. 46. The conditions of capitulations shall be settled by the contracting parties.
These conditions should not be contrary to military honor.
When once settled by a convention they should be scrupulously observed by both sides.
Chapter III. Of Armistices
Art. 47. An armistice suspends warlike operations by a mutual agreement between the
belligerents. Should the duration thereof not be fixed, the belligerents may resume operations at any moment, provided,
however, that proper warning be given to the enemy, in accordance with the conditions of the armistice.
Art. 48. An armistice may be general or local. The former suspends all warlike operations
between the belligerents; the latter only those between certain portions of the belligerent armies, and within a fixed
radius.
Art. 49. An armistice should be notified officially and without delay to the competent
authorities, and to the troops. Hostilities are suspended immediately after the notification.
Art. 50. It rests with the contracting parties to define in the clauses of the armistice the
relations which shall exist between the populations.
Art. 51. The violation of the armistice by either of the parties gives to the other the right
of terminating it.
Art. 52. The violation of the clauses of an armistice by private individuals, on their own
personal initiative, only affords the right of demanding the punishment of the guilty persons, and, if there is occasion for
it, an indemnity for losses sustained.
Chapter IV. Of Belligerents interned, and of Wounded treated, in Neutral Territory
Art. 53. The neutral State receiving in its territory troops belonging to the belligerent
armies, will intern them, so far as it may be possible, away from the theater of war.
They may be kept in camps, or even confined in fortresses, or in places appropriated to this purpose.
It will decide whether the officers may be released on giving their parole not to quit the neutral territory without
authority.
Art. 54. In default of a special agreement, the neutral State which receives the belligerent
troops will furnish the interned with provisions, clothing, and such aid as humanity demands.
The expenses incurred by the internment will be made good at the conclusion of peace.
Art. 55. The neutral State may authorize the transport across its territory of the wounded and
sick belonging to the belligerent armies, provided that the trains which convey them do not carry either the personnel
or matériel of war.
In this case the neutral State is bound to take the measures necessary for the safety and control of the operation.
Art. 56. The Convention of Geneva is applicable to the sick and wounded interned on neutral
territory.
AMELIORATION OF THE CONDITION OF THE WOUNDED IN WAR
Convention for the Amelioration of the Condition of the Wounded in Armies in the Field between
Switzerland, Baden, Belgium, Denmark, Spain, France, Hesse, Italy, Netherlands, Portugal, Prussia, Würtemburg, and
acceded to by Sweden and Norway, Greece, Great Britain, Mecklenburg-Schwerin, Turkey, Bavaria, Austria, Russia, Roumania,
Persia, Salvador, Montenegro, Servia, Bolivia, Chili, Argentine Republic, Peru, and Japan.
Concluded August 22, 1864; ratifications exchanged at Geneva, June 22, 1865; acceded to by the United States, March 1,
1882; accession of United States accepted by Switzerland, on behalf of the Powers, June 9, 1882; proclaimed as to the
original convention, but with reserve as to the additional articles, July 26, 1882.
After reciting the desire of the different governments "to soften, as much as depends on them, the evils of warfare, to
suppress its useless hardships and improve the fate of wounded soldiers on the field of battle," the Convention names the
negotiators,
Who, after having exchanged their powers and found them in good and due form, agree to the following articles:
Article 1. 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. 2. 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. 3. The persons designated in the preceding article may, even after occupation by the
enemy, continue to fulfill their duties in the hospital or ambulance which they serve, or may withdraw in order to rejoin the
corps to which they belong.
Under such circumstances, when these persons shall cease from their functions, they shall be delivered by the occupying
army to the outposts of the enemy.
Art. 4. As the equipment of military hospitals remains subject to the laws of war, persons
attached to such hospitals cannot, in withdrawing, carry away any articles but such as are their private property.
Under the same circumstances an ambulance shall, on the contrary, retain its equipment.
Art. 5. Inhabitants of the country who may bring help to the wounded, shall be respected and
shall remain free. The generals of the belligerent Powers shall make it their care to inform the inhabitants of the appeal
addressed to their humanity, and of the neutrality which will be the consequence of it.
Any wounded man entertained and taken care of in a house shall be considered as a protection thereto. Any inhabitant who
shall have entertained wounded men in his house shall be exempted from the quartering of troops, as well as from a part of
the contributions of war which may be imposed.
Art. 6. Wounded or sick soldiers shall be entertained and taken care of, to whatever nation
they may belong.
Commanders in chief shall have the power to deliver immediately to the outposts of the enemy soldiers who have been wounded in an engagement, when circumstances permit this
to be done, and with the consent of both parties.
Those who are recognized, after their wounds are healed, as incapable of serving, shall be sent back to their country. The
others may also be sent back, on condition of not again bearing arms during the continuance of the war.
Evacuations, together with the persons under whose directions they take place, shall be protected by an absolute
neutrality.
Art. 7. A distinctive and uniform flag shall be adopted for hospitals, ambulances, and
evacuations. It must, on every occasion, be accompanied by the national flag. An arm badge (brassard) shall also be allowed
for individuals neutralized, but the delivery thereof shall be left to military authority.
The flag and the arm badge shall bear a red cross on a white ground.
Art. 8. The details of execution of the present convention shall be regulated by the commanders
in chief of belligerent armies, according to the instructions of their respective governments, and in conformity with the
general principles laid down in this convention.
Art. 9. The high contracting Powers have agreed to communicate the present convention to those
Governments which have not found it convenient to send plenipotentiaries to the International Conference at Geneva, with an
invitation to accede thereto; the protocol is for that purpose left open.
Art. 10. The present convention shall be ratified, and the ratifications shall be exchanged at
Berne in four months, or sooner if possible.
[Additional articles, extending to naval forces the advantages of the above convention, were concluded Oct. 20, 1868, by
most of the powers of Europe, and later acceded to by the United States; but they have never been ratified. See U. S.
Treaties, p. 1153.][500]
DECLARATION OF PARIS
The Plenipotentiaries who signed the Treaty of Paris of the thirtieth of March, one thousand eight hundred and fifty-six,
assembled in conference,
Considering:
That maritime law in time of war has long been the subject of deplorable disputes;
That the uncertainty of the law and of the duties in such a matter give rise to differences of opinion between neutrals
and belligerents which may occasion serious difficulties, and even conflicts; that it is consequently advantageous to
establish a uniform doctrine on so important a point;
That the Plenipotentiaries assembled in Congress at Paris cannot better respond to the intentions by which their
Governments are animated, than by seeking to introduce into international relations fixed principles, in this respect.
The above-mentioned Plenipotentiaries, being duly authorized, resolved to concert among themselves as to the means of
attaining this object; and having come to an agreement, have adopted the following solemn declaration:
1. Privateering is and remains abolished;
2. The neutral flag covers enemy's goods, with the exception of contraband of war;
3. Neutral goods, with the exception of contraband of war, are not liable to capture under enemy's flag;
4. Blockades, in order to be binding, must be effective—that is to say, maintained by a force sufficient really to
prevent access to the coast of the enemy.
The Governments of the undersigned Plenipotentiaries engage to bring the present Declaration to the knowledge of the
States which have not taken part in the Congress of Paris, and to invite them to accede to it.
Convinced that the maxims which they now proclaim cannot but be received with gratitude by the whole world, the
undersigned Plenipotentiaries doubt not that the efforts of their Governments to obtain the general adoption thereof will be
crowned with full success.
The present declaration is not and shall not be binding, except between those Powers who have acceded, or shall accede, to
it.
Done at Paris, the sixteenth of April, one thousand eight hundred and fifty-six.
THE LAWS AND USAGES OF WAR AT SEA
A NAVAL WAR CODE
| General Orders, |
} |
NAVY DEPARTMENT, |
| No. 551. |
Washington, June 27, 1900 |
| The following code of naval warfare, prepared for the guidance and use of the naval service by Capt. Charles H. Stockton,
United States Navy, under the direction of the Secretary of the Navy, having been approved by the President of the United
States, is published for the use of the Navy and for the information of all concerned. |
| |
JOHN D. LONG, |
| Secretary. |
THE LAWS AND USAGES OF WAR AT SEA
Hostilities
Article 1. The general object of war is to procure the complete submission of the enemy at the
earliest possible period, with the least expenditure of life and property.
The special objects of maritime war are: The capture or destruction of the military and naval forces of the enemy; of his
fortifications, arsenals, dry docks, and dockyards; of his various military and naval establishments, and of his maritime
commerce; to prevent his procuring war material from neutral sources; to aid and assist military operations on land, and to
protect and defend the national territory, property, and sea-borne commerce.
Art. 2. The area of maritime warfare comprises the high seas or other waters that are under no jurisdiction, and the territorial waters of
belligerents. Neither hostilities nor any belligerent right, such as that of visitation and search, shall be exercised in the
territorial waters of neutral States.
The territorial waters of a State extend seaward to the distance of a marine league from the low-water mark of its coast
line. They also include, to a reasonable extent, which is in many cases determined by usage, adjacent parts of the sea, such
as bays, gulfs, and estuaries inclosed within headlands; and where the territory by which they are inclosed belongs to two or
more States, the marine limits of such States are usually defined by conventional lines.
Art. 3. Military necessity permits measures that are indispensable for securing the ends of the
war and that are in accordance with modern laws and usages of war.
It does not permit wanton devastation, the use of poison, or the doing of any hostile act that would make the return of
peace unnecessarily difficult.
Noncombatants are to be spared in person and property during hostilities, as much as the necessities of war and the
conduct of such noncombatants will permit.
The launching of projectiles and explosives from balloons, or by other new methods of a similar nature, is prohibited for
a term of five years by the Declaration of the Hague, to which the United States became a party. This rule does not apply
when at war with a noncontracting power.
Art. 4. The bombardment, by a naval force, of unfortified and undefended towns, villages, or
buildings is forbidden, except when such bombardment is incidental to the destruction of military or naval establishments,
public depots of munitions of war, or vessels of war in port, or unless reasonable requisitions for provisions and supplies
essential, at the time, to such naval vessel or vessels are forcibly withheld, in which case due notice of bombardment shall
be given.
The bombardment of unfortified and undefended towns and places for the nonpayment of ransom is forbidden.
Art. 5. The following rules are to be followed with regard to submarine telegraphic cables in
time of war, irrespective of their ownership:
(a) Submarine telegraphic cables between points in the territory of an enemy, or between the territory of the
United States and that of an enemy, are subject to such treatment as the necessities of war may require.
(b) Submarine telegraphic cables between the territory of an enemy and neutral territory may be interrupted within
the territorial jurisdiction of the enemy.
(c) Submarine telegraphic cables between two neutral territories shall be held inviolable and free from
interruption.
Art. 6. If military necessity should require it, neutral vessels found within the limits of
belligerent authority may be seized and destroyed or otherwise utilized for military purposes, but in such cases the owners
of neutral vessels must be fully recompensed. The amount of the indemnity should, if practicable, be agreed on in advance
with the owner or master of the vessel. Due regard must be had to treaty stipulations upon these matters.
Art. 7. The use of false colors in war is forbidden, and when summoning a vessel to lie to, or
before firing a gun in action, the national colors should be displayed by vessels of the United States.
Art. 8. In the event of an enemy failing to observe the laws and usages of war, if the offender
is beyond reach, resort may be had to reprisals, if such action should be considered a necessity; but due regard must always
be had to the duties of humanity. Reprisals should not exceed in severity the offense committed, and must not be resorted to
when the injury complained of has been repaired.
If the offender is within the power of the United States he can be punished, after due trial, by a properly constituted
military or naval tribunal. Such offenders are liable to the punishments specified by the criminal law.
Belligerents
Art. 9. In addition to the armed forces duly constituted for land warfare, the following are
recognized as armed forces of the State.
(1) The officers and men of the Navy, Naval Reserve, Naval Militia, and their auxiliaries.
(2) The officers and men of all other armed vessels cruising under lawful authority.
Art. 10. In case of capture, the personnel of the armed forces or armed vessels of the enemy,
whether combatants or noncombatants, are entitled to receive the humane treatment due to prisoners of war.
The personnel of all public unarmed vessels of the enemy, either owned or in his service as auxiliaries, are liable, upon
capture, to detention as prisoners of war.
The personnel of merchant vessels of an enemy who, in self-defense and in protection of the vessel placed in their charge,
resist an attack, are entitled, if captured, to the status of prisoners of war.
Art. 11. The personnel of a merchant vessel of an enemy captured as a prize can be held, at the
discretion of the captor, as witnesses, or as prisoners of war when by training or enrollment they are immediately available
for the naval service of the enemy, or they may be released from detention or confinement. They are entitled to their
personal effects and to such individual property, not contraband of war, as is not held as part of the vessel, its equipment,
or as money, plate, or cargo contained therein.
All passengers not in the service of the enemy, and all women and children on board such vessels should be released and
landed at a convenient port, at the first opportunity.
Any person in the naval service of the United States who pillages or maltreats, in any manner, any person found on board a
merchant vessel captured as a prize, shall be severely punished.
Art. 12. The United States of America acknowledge and protect, in hostile countries occupied by
their forces, religion and morality; the persons of the inhabitants, especially those of women; and the sacredness of
domestic relations. Offenses to the contrary shall be rigorously punished.
Belligerent and Neutral Vessels
Art. 13. All public vessels of the enemy are subject to capture, except those engaged in purely
charitable or scientific pursuits, in voyages of discovery, or as hospital ships under the regulations hereinafter
mentioned.
Cartel and other vessels of the enemy, furnished with a proper safe-conduct, are exempt from capture, unless engaged in
trade or belligerent operations.
Art. 14. All merchant vessels of the enemy, except coast fishing vessels innocently employed,
are subject to capture, unless exempt by treaty stipulations.
In case of military or other necessity, merchant vessels of an enemy may be destroyed, or they may be retained for the
service of the government. Whenever captured vessels, arms, munitions of war, or other material are destroyed or taken for
the use of the United States before coming into the custody of a prize court, they shall be surveyed, appraised, and
inventoried by persons as competent and impartial as can be obtained; and the survey, appraisement, and inventory shall be
sent to the prize court where proceedings are to be held.
Art. 15. Merchant vessels of the enemy that have sailed from a port within the jurisdiction of
the United States, prior to the declaration of war, shall be allowed to proceed to their destination, unless they are engaged
in carrying contraband of war or are in the military service of the enemy.
Merchant vessels of the enemy, in ports within the jurisdiction of the United States at the outbreak of war, shall be allowed thirty days after war has begun to load
their cargoes and depart, and shall thereafter be permitted to proceed to their destination, unless they are engaged in
carrying contraband of war or are in the military service of the enemy.
Merchant vessels of the enemy, which shall have sailed from any foreign port for any port within the jurisdiction of the
United States before the declaration of war, shall be permitted to enter and discharge their cargo and thereafter to proceed
to any port not blockaded.
Art. 16. Neutral vessels in the military or naval service of the enemy, or under the control of
the enemy for military or naval purposes, are subject to capture or destruction.
Art. 17. Vessels of war of the United States may take shelter during war in a neutral port
subject to the limitations that the authorities of the port may prescribe as to the number of belligerent vessels to be
admitted into the port at any one time. This shelter, which is allowed by comity of nations, may be availed of for the
purpose of evading an enemy, from stress of weather, or to obtain supplies or repairs that the vessel needs to enable her to
continue her voyage in safety and to reach the nearest port of her own country.
Art. 18. Such vessel or vessels must conform to the regulations prescribed by the authorities
of the neutral port with respect to the place of anchorage, the limitation of the stay of the vessel in port, and the time to
elapse before sailing in pursuit or after the departure of a vessel of the enemy.
No increase in the armament, military stores, or in the number of the crew of a vessel of war of the United States shall
be attempted during the stay of such vessel in a neutral port.
Art. 19. A neutral vessel carrying the goods of an enemy is, with her cargo, exempt from
capture, except when carrying contraband of war or endeavoring to evade a blockade.
Art. 20. A neutral vessel carrying hostile dispatches, when sailing as a dispatch vessel
practically in the service of the enemy, is liable to seizure. Mail steamers under neutral flags carrying such dispatches in
the regular and customary manner, either as a part of their mail in their mail bags, or separately as a matter of
accommodation and without special arrangement or remuneration, are not liable to seizure and should not be detained, except
upon clear grounds of suspicion of a violation of the laws of war with respect to contraband, blockade, or unneutral service,
in which case the mail bags must be forwarded with seals unbroken.
Hospital Ships—The Shipwrecked, Sick, and Wounded
Art. 21. Military hospital ships—that is to say, vessels constructed or fitted out by the
belligerent States for the special and sole purpose of assisting the wounded, sick, or shipwrecked, and whose names have been
communicated to the respective Powers at the opening or in the course of hostilities, and in any case before they are so
employed, shall be respected, and are not liable to capture during the period of hostilities.
Such ships shall not be classed with warships, with respect to the matter of sojourn in a neutral port.
Art. 22. Hospital ships fitted out, in whole or in part, at the expense of private individuals,
or of officially recognized relief societies, shall likewise be respected and exempt from capture, provided the belligerent
Power to whom they are subject has given them an official commission and has notified the hostile Power of the names of such
ships at the beginning or in the course of hostilities, and in any case before they are employed.
These ships should be furnished with a certificate, issued by the proper authorities, setting forth that they were
under the control of such authorities during their
equipment and at the time of their final departure.
Art. 23. The vessels mentioned in Articles 21 and 22 shall afford relief and assistance to the
wounded, sick, and shipwrecked of the belligerents without distinction of nationality.
It is strictly forbidden to use these vessels for any military purpose.
These vessels must not in any way hamper the movements of the combatants.
During and immediately after engagements they act at their own risk and peril.
The belligerents have the right to control and visit such vessels; they may decline their coöperation, require them
to withdraw, prescribe for them a fixed course, and place a commissioner on board; they may even detain them, if required by
military necessity.
When practicable, the belligerents shall enter upon the log of hospital ships such orders as they may give them.
Art. 24. Military hospital ships shall be distinguished by being painted white outside, with a
horizontal band of green about 1-1/2 meters wide.
The ships designated in Article 22 shall be distinguished by being painted white outside, with a horizontal band of red
about 1-1/2 meters wide.
The boats of hospital ships, as well as small craft that may be devoted to hospital service, shall be distinguished by
being painted in the same colors.
Hospital ships shall, in general, make themselves known by hoisting, with their national flag, the white flag with a red
cross prescribed by the Geneva Convention.
Art. 25. Merchant vessels, yachts, or neutral vessels that happen to be in the vicinity of
active maritime hostilities, may gather up the wounded, sick, or shipwrecked of the belligerents. Such vessels, after this
service has been performed, shall report to the belligerent commander controlling the waters thereabouts, for future directions, and while accompanying a belligerent will
be, in all cases, under his orders; and if a neutral, be designated by the national flag of that belligerent carried at the
foremasthead, with the red cross flag flying immediately under it.
These vessels are subject to capture for any violation of neutrality that they may commit. Any attempt to carry off such
wounded, sick, and shipwrecked, without permission, is a violation of neutrality. They are also subject, in general, to the
provisions of Article 23.
Art. 26. The religious, medical, and hospital personnel of any vessel captured during
hostilities shall be inviolable and not subject to be made prisoners of war. They shall be permitted, upon leaving the ship,
to carry with them those articles and instruments of surgery which are their private property.
Such personnel shall continue to exercise their functions as long as may be necessary, whereupon they may withdraw when
the commander in chief deems it possible to do so.
The belligerents shall insure to such personnel, when falling into their hands, the free exercise of their functions, the
receipt of salaries, and entire freedom of movement, unless a military necessity prevents.
Art. 27. Sailors and soldiers, embarked when sick or wounded, shall be protected and cared for
by the captors, no matter to what nation they may belong.
Art. 28. The shipwrecked, wounded, or sick of the enemy, who are captured, are considered
prisoners of war. The captor must decide, according to circumstances, whether it is expedient to keep them or send them to a
port of his own country, to a neutral port, or even to a port of the enemy. In the last case, the prisoners thus returned to
their country can not serve again during the period of the war.
Art. 29. The shipwrecked, wounded, or sick, who are landed at a neutral port with the consent
of the local authorities, shall, unless there exist an agreement to the contrary between the neutral State and the belligerent States, agree that they will not again take part
in the operations of war.
The expenses of hospital care and of internment shall be borne by the State to which such shipwrecked, wounded, or sick
belong.
The Exercise of the Right of Search
Art. 30. The exercise of the right of search during war shall be confined to properly
commissioned and authorized vessels of war. Convoys of neutral merchant vessels, under escort of vessels of war of their own
State, are exempt from the right of search, upon proper assurances, based on thorough examination, from the commander of the
convoy.
Art. 31. The object of the visit or search of a vessel is:
(1) To determine its nationality.
(2) To ascertain whether contraband of war is on board.
(3) To ascertain whether a breach of blockade is intended or has been committed.
(4) To ascertain whether the vessel is engaged in any capacity in the service of the enemy.
The right of search must he exercised in strict conformity with treaty provisions existing between the United States and
other States and with proper consideration for the vessel boarded.
Art. 32. The following mode of procedure, subject to any special treaty stipulations, is to be
followed by the boarding vessel, whose colors must be displayed at the time:
The vessel is brought to by firing a gun with blank charge. If this is not sufficient to cause her to lie to, a shot is
fired across the bows, and in case of flight or resistance force can be used to compel the vessel to surrender.
The boarding vessel should then send one of its smaller boats alongside, with an officer in charge wearing side
arms, to conduct the search. Arms may be carried in
the boat, but not upon the persons of the men. When the officer goes on board of the vessel he may be accompanied by not more
than two men, unarmed, and he should at first examine the vessel's papers to ascertain her nationality, the nature of the
cargo, and the ports of departure and destination. If the papers show contraband, an offense in respect of blockade, or enemy
service, the vessel should be seized; otherwise she should be released, unless suspicious circumstances justify a further
search. If the vessel be released, an entry in the log book to that effect should be made by the boarding officer.
Art. 33. Irrespective of the character of her cargo, or her purported destination, a neutral
vessel should be seized if she:
(1) Attempts to avoid search by escape; but this must be clearly evident.
(2) Resists search with violence.
(3) Presents fraudulent papers.
(4) Is not supplied with the necessary papers to establish the objects of search.
(5) Destroys, defaces, or conceals papers.
The papers generally expected to be on board of a vessel are:
(1) The register.
(2) The crew and passenger list.
(3) The log book.
(4) A bill of health.
(5) The manifest of cargo.
(6) A charter party, if the vessel is chartered.
(7) Invoices and bills of lading.
Contraband of War
Art. 34. The term "contraband of war" includes only articles having a belligerent destination
and purpose. Such articles are classed under two general heads:
(1) Articles that are primarily and ordinarily used for military purposes in time of war, such as arms and munitions of
war, military material, vessels of war, or instruments made for the immediate manufacture of munitions of war.
(2) Articles that may be and are used for purposes of war or peace, according to circumstances.
Articles of the first class, destined for ports of the enemy or places occupied by his forces, are always contraband of
war.
Articles of the second class, when actually and especially destined for the military or naval forces of the enemy, are
contraband of war.
In case of war, the articles that are conditionally and unconditionally contraband, when not specifically mentioned in
treaties previously made and in force, will be duly announced in a public manner.
Art. 35. Vessels, whether neutral or otherwise, carrying contraband of war destined for the
enemy, are liable to seizure and detention, unless treaty stipulations otherwise provide.
Art. 36. Until otherwise announced, the following articles are to be treated as contraband of
war:
Absolutely contraband.—Ordnance; machine guns and their appliances and the parts thereof; armor plate and
whatever pertains to the offensive and defensive armament of naval vessels; arms and instruments of iron, steel, brass, or
copper, or of any other material, such arms and instruments being specially adapted for use in war by land or sea; torpedoes
and their appurtenances; cases for mines, of whatever material; engineering and transport materials, such as gun carriages, caissons, cartridge boxes, campaigning forges,
canteens, pontoons; ordnance stores; portable range finders; signal flags destined for naval use; ammunition and explosives
of all kinds and their component parts; machinery for the manufacture of arms and munitions of war; saltpeter; military
accouterments and equipments of all sorts; horses and mules.
Conditionally contraband.—Coal, when destined for a naval station, a port of call, or a ship or ships of the
enemy; materials for the construction of railways or telegraphs; and money, when such materials or money are destined for the
enemy's forces; provisions, when actually destined for the enemy's military or naval forces.
Blockade
Art. 37. Blockades, in order to be binding, must be effective; that is, they must be maintained
by a force sufficient to render hazardous the ingress to or egress from a port.
If the blockading force be driven away by stress of weather and return without delay to its station, the continuity of the
blockade is not thereby broken. If the blockading force leave its station voluntarily, except for purposes of the blockade,
or is driven away by the enemy, the blockade is abandoned or broken. The abandonment or forced suspension of a blockade
requires a new notification of blockade.
Art. 38. Neutral vessels of war must obtain permission to pass the blockade, either from the
government of the State whose forces are blockading the port, or from the officer in general or local charge of the blockade.
If necessary, these vessels should establish their identity to the satisfaction of the commander of the local blockading
force. If military operations or other reasons should so require, permission to enter a blockaded port can be restricted or
denied.
Art. 39. The notification of a blockade must be made before neutral vessels can be seized for
its violation. This notification may be general, by proclamation, and communicated to the neutral States through diplomatic
channels; or it may be local, and announced to the authorities of the blockaded port and the neutral consular officials
thereof. A special notification may be made to individual vessels, which is duly indorsed upon their papers as a warning. A
notification to a neutral State is a sufficient notice to the citizens or subjects of such State. If it be established that a
neutral vessel has knowledge or notification of the blockade from any source, she is subject to seizure upon a violation or
attempted violation of the blockade.
The notification of blockade should declare, not only the limits of the blockade, but the exact time of its commencement
and the duration of time allowed a vessel to discharge, reload cargo, and leave port.
Art. 40. Vessels appearing before a blockaded port, having sailed before notification, are
entitled to special notification by a blockading vessel. They should be boarded by an officer, who should enter upon the
ship's log or upon its papers, over his official signature, the name of the notifying vessel, a notice of the fact and extent
of the blockade, and of the date and place of the visit. After this notice, an attempt on the part of the vessel to violate
the blockade makes her liable to capture.
Art. 41. Should it appear, from the papers of a vessel or otherwise, that the vessel had sailed
for the blockaded port after the fact of the blockade had been communicated to the country of her port of departure, or after
it had been commonly known at that port, she is liable to capture and detention as a prize. Due regard must be had in this
matter to any treaties stipulating otherwise.
Art. 42. A neutral vessel may sail in good faith for a blockaded port, with an alternative
destination to be decided upon by information as to the continuance of the blockade obtained at an intermediate port. In such
case, she is not allowed to continue her voyage to
the blockaded port in alleged quest of information as to the status of the blockade, but must obtain it and decide upon her
course before she arrives in suspicious vicinity; and if the blockade has been formally established with due notification,
sufficient doubt as to the good faith of the proceeding will subject her to capture.
Art. 43. Neutral vessels found in port at the time of the establishment of a blockade, unless
otherwise specially ordered, will be allowed thirty days from the establishment of the blockade, to load their cargoes and
depart from such port.
Art. 44. The liability of a vessel purposing to evade a blockade, to capture and condemnation,
begins with her departure from the home port and lasts until her return, unless in the meantime the blockade of the port is
raised.
Art. 45. The crews of neutral vessels violating or attempting to violate a blockade are not to
be treated as prisoners of war, but any of the officers or crew whose testimony may be desired before the prize court should
be detained as witnesses.
The Sending in of Prizes
Art. 46. Prizes should be sent in for adjudication, unless otherwise directed, to the nearest
suitable port, within the territorial jurisdiction of the United States, in which a prize court may take action.
Art. 47. The prize should be delivered to the court as nearly as possible in the condition in
which she was at the time of seizure, and to this end her papers should be carefully sealed at the time of seizure and kept
in the custody of the prize master.
Art. 48. All witnesses whose testimony is necessary to the adjudication of the prize should be
detained and sent in with her, and if circumstances
permit, it is preferable that the officer making the search should act as prize master.
The laws of the United States in force concerning prizes and prize cases must be closely followed by officers and men of
the United States Navy.
Art. 49. The title to property seized as prize changes only by the decision rendered by the
prize court. But if the vessel or its cargo is needed for immediate public use, it may be converted to such use, a careful
inventory and appraisal being made by impartial persons and certified to the prize court.
Art. 50. If there are controlling reasons why vessels that are properly captured may not be
sent in for adjudication—such as unseaworthiness, the existence of infectious disease, or the lack of a prize
crew—they may be appraised and sold, and if this can not be done, they may be destroyed. The imminent danger of
recapture would justify destruction, if there should be no doubt that the vessel was a proper prize. But in all such cases
all of the papers and other testimony should be sent to the prize court, in order that a decree may be duly entered.
Armistice, Truce, and Capitulations, and Violations of Laws of War
Art. 51. A truce or capitulation may be concluded, without special authority, by the commander
of a naval force of the United States with the commander of the forces of the enemy, to be limited, however, to their
respective commands.
A general armistice requires an agreement between the respective belligerent governments.
Art. 52. After agreeing upon or signing a capitulation the capitulator must neither injure nor
destroy the vessels, property, or stores in his possession that he is to deliver up, unless the right to do so is expressly
reserved to him in the agreement or capitulation.
Art. 53. The notice of the termination of hostilities, before being acted upon, must be
officially received by a commander of a naval force.
Except where otherwise provided, acts of war done after the receipt of the official notice of the conclusion of a treaty
of peace or of an armistice, are null and void.
Art. 54. When not in conflict with the foregoing the regulations respecting the laws of war on
land, in force with the armies of the United States, will govern the Navy of the United States when circumstances render them
applicable.
Art. 55. The foregoing regulations are issued with the approval of the President of the United
States, for the government of all persons attached to the naval service, subject to all laws and treaties of the United
States that are now in force or may hereafter be established.
UNITED STATES NEUTRALITY LAWS
Sec. 5281. Every citizen of the United States, who within the territory or jurisdiction
thereof, accepts and exercises a commission to serve a foreign prince, state, colony, district, or people, in war, by land or
by sea, against any prince, state, colony, district, or people, with whom the United States are at peace, shall be deemed
guilty of a high misdemeanor, and shall be fined not more than two thousand dollars, and imprisoned not more than three
years.
Sec. 5282. Every person, who, within the territory or jurisdiction of the United States,
enlists or enters himself, or hires or retains another person to enlist or enter himself, or to go beyond the limits or
jurisdiction of the United States with intent to be enlisted or entered in the service of any foreign prince, state, colony,
district, or people, as a soldier, or as a marine or seaman, on board of any vessel of war, letter of marque, or privateer,
shall be deemed guilty of high misdemeanor, and shall be fined not more than one thousand dollars, and imprisoned not more
than three years.
Sec. 5283. Every person, who, within the limits of the United States, fits out and arms, or
attempts to fit out and arm, or procures to be fitted out and armed, or knowingly is concerned in the furnishing, fitting
out, or arming, of any vessel, with intent that such vessel shall be employed in the service of any foreign prince or state,
or of any colony, district, or people, to cruise or commit hostilities against the subjects, citizens, or property of any
foreign prince or state, or of any colony, district, or people, with whom the United States are at peace, or who issues or
delivers a commission within the territory or
jurisdiction of the United States, for any vessel, to the intent that she may be so employed, shall be deemed guilty of a
high misdemeanor, and shall be fined not more than ten thousand dollars, and imprisoned not more than three years. And every
such vessel, her tackle, apparel, and furniture, together with all materials, arms, ammunition, and stores, which may have
been procured for the building and equipment thereof, shall be forfeited; one half to the use of the informer, and the other
half to the use of the United States.
Sec. 5284. Every citizen of the United States who, without the limits thereof, fits out and
arms, or attempts to fit out and arm, or procures to be fitted out and armed, or knowingly aids or is concerned in
furnishing, fitting out, or arming any private vessel of war, or privateer, with intent that such vessel shall be employed to
cruise, or commit hostilities, upon the citizens of the United States, or their property, or who takes the command of, or
enters on board of any such vessel, for such intent, or who purchases any interest in any such vessel, with a view to share
in the profits thereof, shall be deemed guilty of a high misdemeanor, and fined not more than ten thousand dollars, and
imprisoned not more than ten years. And the trial for such offense, if committed without the limits of the United States,
shall be in the district in which the offender shall be apprehended or first brought.
Sec. 5285. Every person who, within the territory or jurisdiction of the United States,
increases or augments, or procures to be increased or augmented, or knowingly is concerned in increasing or augmenting, the
force of any ship of war, cruiser, or other armed vessel, which, at the time of her arrival within the United States, was a
ship of war or cruiser or armed vessel, in the service of any foreign prince or state or of any colony, district, or people,
or belonging to the subjects or citizens of any such prince or state, colony, district, or people, the same being at war with
any foreign prince or state or of any colony, district, or people,
with whom the United States are at peace, by adding to the number of the guns of such vessel or by changing
those on board of her for guns of a larger caliber or by adding thereto any equipment solely applicable to war, shall be
deemed guilty of a high misdemeanor, and shall be fined not more than one thousand dollars and be imprisoned not more than
one year.
Sec. 5286. Every person, who, within the territory or jurisdiction of the United States, begins
or sets on foot, or provides, or prepares the means for, any military expedition or enterprise, to be carried on from thence
against the territory or dominions of any foreign prince or state, or of any colony, district, or people, with whom the
United States are at peace, shall be deemed guilty of a high misdemeanor and shall be fined not exceeding three thousand
dollars and imprisoned not more than three years.
Sec. 5287. The district courts shall take cognizance of all complaints, by whomsoever
instituted, in cases of captures made within the waters of the United States or within a marine league of the coasts or
shores thereof. [18 St. 320.]
In every case in which a vessel is fitted out and armed, or attempted to be fitted out and armed, or in which the force of
any vessel of war, cruiser, or other armed vessel is increased or augmented, or in which any military expedition or
enterprise is begun or set on foot, contrary to the provisions and prohibitions of this Title; and in every case of the
capture of a vessel within the jurisdiction or protection of the United States as before defined; and in every case in which
any process issuing out of any court of the United States is disobeyed or resisted by any person having the custody of any
vessel of war, cruiser, or other armed vessel of any foreign prince or state, or of any colony, district, or people, or of
any subjects or citizens of any foreign prince or state, or of any colony, district, or people, it shall be lawful for the
President, or such other person as he shall have empowered for that purpose, to employ such part of the land or naval forces
of the United States or of the militia thereof, for
the purpose of taking possession of and detaining any such vessel, with her prizes, if any, in order to the execution of the
prohibitions and penalties of this Title, and to the restoring of such prizes in the cases in which restoration shall be
adjudged; and also for the purpose of preventing the carrying on of any such expedition or enterprise from the territories or
jurisdiction of the United States against the territories or dominions of any foreign princes or state, or of any colony,
district, or people with whom the United States are at peace.
Sec. 5288. It shall be lawful for the President or such person as he shall empower for that
purpose to employ such part of the land or naval forces of the United States or of the militia thereof, as shall be necessary
to compel any foreign vessel to depart the United States in all cases in which, by the laws of nations or the treaties of the
United States, she ought not to remain within the United States.
Sec. 5289. The owners or consignees of every armed vessel sailing out of the ports of the
United States, belonging wholly or in part to citizens thereof, shall, before clearing out the same, give bond not to commit
hostilities against any country with whom the United States are at peace.
Sec. 5290. Collectors of customs are to detain vessels built for warlike purposes and about to
depart the United States until the decision of the President, or until the owner gives bond.
Sec. 5291. This applies to the construction of the Title.[501]
PROCEDURE IN PRIZE COURT
The United States v. Str. X
Prize
LIBEL
To the Honorable A. B., Judge of said Court.
The libel of C. D., Attorney of the United States, for the Southern District of Florida, who libels for the United States
and for all parties in interest against the steam vessel X, in a cause of prize, alleges:—
That pursuant to instructions for that purpose from the President of the United States, W. M. of the United States Navy,
in and with the United States Commissioned ship of war, the N., her officers and crew, did on the 22d day of April, in the
year of our Lord One thousand eight hundred and ninety-eight, subdue, seize, and capture on the high seas, as prize of war,
the said steam vessel X, and the said vessel and her cargo have been brought into the port and harbor of Key West, in the
state of Florida, where the same now are, within the jurisdiction of this Honorable Court, and that the same are lawful prize
of war and subject to condemnation and forfeiture as such.
Wherefore the said Attorney prays that the usual process of attachment of Prize causes may
issue against the said vessel her tackle, apparel, furniture, and cargo, that Monition may issue citing all persons, having
or claiming to have any interest or property in
said vessel and cargo to appear and claim the same; that the nature, amount, and value may be determined; that due and proper
proofs may be taken and heard; and that all due proceedings being had, the said vessel X, together with her tackle, apparel,
furniture, and cargo may, on the final hearing of this cause, by the definitive sentence of this Court, be condemned,
forfeited, and sold, and the proceeds distributed according to law.
C. D.
U. S. Attorney, So. Dist. of Florida.
Key West, Fla. April 23d, 1898.
Let attachment and monition issue as prayed returnable on Monday the 9th day of May, 1898.
Entered as of course.
E. F., Clerk,
by G. H., Dy. Clerk.
Endorsed:
Libel for Prize.—Filed Apr. 23d, 1898. E. F., Clerk.
CLAIMANTS' PETITION
To the Honorable A. B., Judge of the District Court of the United States in and for the Southern District of Florida, in
admiralty.
The United States v. The S. S. X and cargo
Prize
And now comes into Court, I. J., and says that he is a citizen of Mobile, Ala., and agent in the United States for the
firm of P. & P. of London, England, and that about 400,000 feet of pine lumber, being about one half of the cargo, is the
sole and exclusive property of the said firm of P. & P., of London, England, and of no other person or persons, and that
no person or persons whomsoever, enemies of the
United States, have any right, title, or interest whatever in and to said cargo or any part thereof.
That the said firm consists solely of [names] who are subjects of Great Britain, residing at London, England.
And he further denies that the said cargo is lawful prize of war as alleged and set forth in the captor's libel exhibited
and filed in this cause.
Now therefore, the said I. J., comes into Court and claims the right to the possession of the said portion of the said
cargo for the said firm of P. & P., and prays that upon a hearing of this cause the Court will award to them restitution
thereof free from charges for costs and expenses, and of such other and further relief in the premises as is right and just,
and he will ever pray, etc.
I. J. Agent for P. & P.
I. J., being duly sworn, deposes and says that he is the authorized agent in the United States of said P. & P. of
London, where all the members of the firm are and reside; that he knows the contents of the foregoing claim; that the matters
and allegations therein contained are true as therein set forth; and that his knowledge of said matters is absolute and
acquired by means of his agency in the United States for the said P. & P. and by reason of his connection with the
shipment of the said cargo.
I. J.
Sworn to and subscribed before me this 2nd day of May, 1898.
[SEAL] K. L., Clerk of the United States District Court for the Southern District of
Alabama.
M. N.
Proctor for Claimant.
Endorsed:
Claim for one half Cargo.—Filed May 6th, 1898,
E. O., Clerk.
(Another claim for the other half was filed by another claimant.)
At a stated term of the District Court of the United States, for the Southern District of Florida, held in the United
States Court Rooms at Key West, on the day of May, 1898.
Present:—
Honorable A. B., District Judge.
Petition of Bailee of Owners of Vessel
The United States v. The Steamship X and her cargo
And now O. P., intervening as bailee for the interest of [names] in the said Steamship X, her engines, boilers, tackle,
apparel, furniture and equipment, appears before this Honorable Court and makes claim to the said steamship etc., as the same
are attached by the Marshal, under process of this Court, at the instance of the United States of America, under a libel
against said steamship, her cargo etc., as a prize of war, and the said O. P. avers that before and at the time of the
alleged capture of said steamship, her cargo etc., the above named [names], residing in England, and [names] residing in
Spain, all of whom are Spanish subjects, were true and bona fide owners of the said vessel, her engines, boilers,
tackle, apparel and furniture; that no other person was the owner thereof, that he was in possession thereof for the said
owners, and that the vessel, if restored, will belong to the said owners, and he denies that she was lawful prize.
Wherefore the said O. P., for and in behalf of the said owners, for whom he is duly authorized to make this claim, prays
to be admitted to defend accordingly, and to show cause pursuant to the terms of the monition issued herein and served upon
the said steamship, and upon the master thereof, as bailee, why the said steamship, her engines, etc., were not liable to be
treated enemy's property at the time and place, and under the circumstances of the alleged capture, and why she should not be condemned as lawful prize of war, but should be
restored with damages and costs.
O. P.
Sworn to before me this 18th day of May, 1898.
[SEAL] G. H., Dy. Clerk.
Q. R.
Proctor for Claimant.
Endorsed:
Claim to X by O. P. Q. R., Proctor for Claimant.—Filed May 18th, 1898. E. F., Clerk.
The United States v. The Steamship X and her cargo
Test Affidavit
Southern District of Florida, S.S.
O. P. being duly sworn, deposes and says:—
1. I am the claimant herein and have verified the claim on knowledge derived from my position as master of the vessel
about three and a half years and from my official communications with the ship owners and their representatives; the names
and residences of the part owners I have learned since my examination in preparatorio, from cables to my counsel to
the said owners.
2. The X is a Spanish merchant vessel, and since I have been in command of her as aforesaid has traded between ports in
England and Spain and the United States and West Indies; the vessel carries no passengers or mails, but is exclusively a
cargo carrier.
3. In the ordinary course of her said business as a common carrier, the vessel, in the month of April, 1898, loaded a full
cargo of lumber, at Ship Island, Miss., and on the
14th of April, 1898, the vessel and cargo were cleared at the Custom House in Scranton, Miss. The cargo was destined for
Rotterdam, in the Kingdom of Holland, but the vessel was cleared coastwise from Scranton for Norfolk, in the State of
Virginia, to which port the steamer was bound for coals. In the ordinary course of such a voyage the foreign clearance of a
vessel for Rotterdam would have been obtained and issued from the Custom House in Norfolk.
The vessel was laden at the loading port under the agency of W. S. K. & Co., an American firm as I am informed and
believe, and conformed there in all things to the laws and regulations of the United States and of said port. She was
detained at Ship Island by the low water on the bar until April 19th, 1898, between 8 and 9 o'clock A.M., when she sailed from said place and proceeded on her voyage toward Norfolk, Va., as aforesaid.
But for her capture and detentions as heretofore set forth, she would have reached Norfolk, and would have coaled and
sailed from said port prior to May 21st, 1898.
4. It appeared from the ship's papers delivered to the captors, and was a fact, that her cargo was all taken on board
prior to May 21st, 1898. And as I am informed and believe, the vessel was not otherwise excluded from the benefits and
privileges of the President's Proclamation of April 26th, 1898.
5. At all times before the ship's seizure on April 22d, 1898, I and all my officers were ignorant that war existed between
Spain and the United States, and the vessel was bound and following the ordinary course of her voyage.
6. While on the said voyage and in due prosecution thereof, at about 7 or 7.30 of the clock in the morning of April 22d,
1898, said steamship X being then about eight or nine miles from Sand Key Light, was seized and wrongfully captured by the
United States ship of war N., under the command of a line officer of the United States Navy, and by means of a prize crew
then and there placed on board, was forcibly brought into this port of Key West. On being stopped by said United States ship of war, N., and being informed of the existence of
war, the master and officers of the X submitted without resistance to seizure and to the placing of a prize crew on board of
said vessel, proceeding therewith, under her own steam, into port.
7. Deponent is informed and believes that by the existing policy of the Government of the United States, as evidenced by
the repeated declarations of its Executive, and by the Proclamation of the President of the United States, issued and
published April 26th, 1898, as well as upon principles in harmony with the present views of nations and sanctioned by recent
practice, in accordance with which the President has directed that the war should be conducted, the steamship X, at the time
and place, and in the circumstances under which she was seized, was not liable to be treated as enemy's property, but on the
contrary, having sailed from a port of the United States prior to the 21st of April, 1898, and being bound to another port of
the United States, which in the ordinary course of her voyage she would have reached and left, with her coals, long prior to
May 21st, 1898, was exempt from capture as prize of war.
O. P.
Sworn to before me this 18th day of May, 1898.
[SEAL] G. H., Dy. Clerk.
Endorsed:
Test affidavit for X.—Filed May 16th, 1898, E. F., Clerk.
United States v. Spanish Steamer X and Cargo
Prize. Decree
This cause having come on to be heard upon the allegations of the libel, the claims of the master, and testimony taken
in preparatorio, and the same having been fully heard and considered, and it appearing to the Court that the
said steamer X was enemy's property, and was upon
the high seas and not in any port or place of the United States upon the outbreak of the war, and was liable to condemnation
and seizure, it is ordered that the same be condemned and forfeited to the United States as lawful prize of war; but it
appearing that the cargo of said steamer was the property of neutrals, and not contraband or subject to condemnation and
forfeiture, it is ordered that said cargo be released and restored to the claimants for the benefit of the true and lawful
owners thereof.
It is further ordered that the Marshal proceed to advertise and sell said vessel, and make deposit of the proceeds in
accordance with law.
A. B., Judge.
Key West, Florida, May 27th, 1898.
Endorsed:
Decree.—Filed May 27th, 1898. E. F., Clerk.
DISTRICT COURT OF THE UNITED STATES, SOUTHERN
DISTRICT OF FLORIDA.
The United StatesPrize
v.
Captured,________________ 1898.
______________________________
______________________________
A Final Decree of Condemnation of Vessel and Cargo having been pronounced in this Case, and no Appeal being taken, and it
Appearing to the Court that the Gross Proceeds of the Sales are as follows,—to-wit,—
Vessel,
Cargo,
Total,
And the Costs, Expenses and Charges as taxed and allowed are as follows,—
Marshal's Fees and Charges including all expenses of Sales, Advertising,
and Auctioneer's Commissions,
District Attorney's Fees,
Prize Commissioner's Fees and Expenses,
Clerk's Fees,
Leaving a Net Residue of____________________($______)
And it appearing to the Court upon the Report of the Prize Commissioner, that the
U. S. S. ____________________________ Commanding, was the sole Capturing Vessel, and entitled to share in the
Prize, and was of Superior Force to the Captured Vessel, and it appearing that the Marshal has paid and satisfied the Bills
of Costs and Charges as herein taxed, and allowed, it is Ordered that the same be paid to him out
of the money on Deposit with the Assistant Treasurer of the United States subject to the Court in this case, and it is
Further Ordered that the said Residue of the Gross Proceeds deposited with the Assistant Treasurer
in this Case be paid into the Treasury of the United States, for Distribution, one half to the officers and crew of
said ________ and one half to the United States.[502]
________________________________________
Judge of the District Court of the United States,
for the Southern District of Florida.
DIGEST OF IMPORTANT CASES ARRANGED UNDER TITLES
Bolton v. Gladstone, 5 East, 155
In an action on a policy of insurance in 1804 on a Danish ship and cargo warranted neutral and captured by a French ship
of war (Denmark being at peace with France), it appeared that the court in which the Danish ship was libelled declared her
good and lawful prize. Held by Ellenborough C. J., "that all sentences of foreign courts of competent jurisdiction to decide
questions of prize" were to be received "as conclusive evidence in actions upon policies of assurance, upon every subject
immediately and properly within the jurisdiction of such foreign courts, and upon which they have professed to decide
judicially."
United States v. Rauscher, 119 U. S. 407
The defendant was extradited from England on the charge of murder committed on an American vessel on the high seas. He was
indicted in the United States Circuit Court, not for murder, but for a minor offense not included in the treaty of
extradition. It was held that he could not be tried for any other offense than murder until he had had an opportunity to
return to the country from which he was taken for the purpose alone of trial for the offense specified in the demand for his
surrender.
Harcourt v. Gaillard, 12 Wheat. 523
This case is fully stated in the text, p. 42.
Williams v. The Suffolk Insurance Company, 13 Pet. 415
This case held that when the executive branch of the government, which is charged with the foreign relations of the United
States shall, in its correspondence with a foreign nation, assume a fact in regard to the sovereignty of any island or
country, it is conclusive on the judicial department.
State of Mississippi v. Johnson, 4 Wall. 475, 501
This case held that "a bill praying an injunction against the execution of an act of Congress by the incumbent of the
presidential office cannot be received, whether it describes him as President or as a citizen of a state."
Jones v. United States, 137 U.S. 202
This case held that the determination of the President, under U.S. Rev. Sts., § 5570, that a guano island shall be
considered as appertaining to the United States, may be declared through the Department of State, whose acts in this regard
are in legal contemplation the acts of the President.
Wildenhus's Case, 120 U.S. 1
This case held that the Circuit Court of the United States has jurisdiction to issue a writ of habeas corpus to
determine whether one of the crew of a foreign vessel in a port of the United States, who is in the custody of the state
authorities, charged with the commission of a crime, within the port, against the laws of the state, is exempt from local
jurisdiction under the provisions of a treaty between the United States and the foreign nation to which the vessel belongs.
The Convention of March 9, 1880, between Belgium and the United States was considered.
In the Matter of Metzger, 5 How. 176, 188
This case held that the Treaty with France of 1843 provides for the mutual surrender of fugitives from justice
and that where a district judge decided that there
was sufficient cause for the surrender of a person claimed by the French Government, and committed him to custody to await
the order of the President of the United States, the Supreme Court had no jurisdiction to issue a habeas corpus for
the purpose of reviewing that decision.
Alcinous v. Nigreu, 4 Ellis and Blackburn, 217
This was an action for work and labor brought by a Russian against an Englishman during the Crimean war. Lord Campbell
said: "The contract having been entered into before the commencement of hostilities is valid; and, when peace is restored,
the plaintiff may enforce it in our Courts. But, by the law of England, so long as hostilities prevail he cannot sue
here."
Brown v. United States, 8 Cr. 110
It was held that British property within the territory of the United States at the beginning of hostilities with Great
Britain could not be condemned without a legislative act, and that the act of Congress declaring war was not such an act. The
property in question was the cargo of an American ship and was seized as enemy's property in 1813, nearly a year after it had
been discharged from the ship.
United States v. Baker, 5 Blatchford, 6
This was an indictment in 1861 against Baker, the master of a private armed schooner, and a part of the officers and crew
for piracy. They claimed to have acted under a commission from Jefferson Davis, President of the Confederate States of
America. Nelson J. charged the jury at length; but they failed to agree on a verdict.
The Grotius, 9 Cr. 368
The question in this case, which was heard in 1815, was whether the capture was valid. The master, the mate, and two of
the seamen swore that they did not consider the ship to have been seized as prize, and that the young man who was put on
board by the captain of the privateer was received and considered as a passenger during the residue of the voyage. It was
held that the validity of the capture of the vessel as a prize of war was sufficiently established by the evidence.
The Two Friends, 1 C. Rob. 271
An American ship was taken by the French in 1799 when the relations between France and America were strained. She was
recaptured by the crew, some of whom were British seamen. They were awarded salvage.
The Santa Cruz, 1 C. Rob. 49
A Portuguese vessel was taken by the French in 1796 and retaken by English cruisers a few days later. It was held that the
law of England, on recapture of property of allies, is the law of reciprocity; it adopts the rule of the country to which the
claimant belongs.
The Venus, 4 C. Rob. 355
A British vessel went to Marseilles, under cartel, for the exchange of prisoners, and there took on board a cargo and was
stranded and captured on a voyage to Port Mahon. Held that the penalty was confiscation.
The Sea Lion, 5 Wall. 630
This case held that a license from a "Special Agent of the Treasury Department and Acting Collector of
Customs" in 1863 to bring cotton "from beyond the
United States military lines" had no warrant from the Treasury Regulations prescribed by the President conformably to the act
of 13th July, 1861.
The Schooner Sophie, 6 C. Rob. 138
A British ship, having been captured by the French, was condemned in 1799 by a French Consular Court in Norway. Other
proceedings were afterwards had, on former evidence in the case, in the regular Court of Prize in Paris and the sentence of
the Consular Court was affirmed. Sir William Scott said, "I am of opinion, therefore, that the intervention of peace has put
a total end to the claim of the British proprietor, and that it is no longer competent to him to look back to the enemy's
title, either in his own possession, or in the hands of neutral purchasers."
The Caroline
People v. McLeod, 25 Wendell, 483
During the Canadian rebellion of 1837-1838, a force was sent in the night by the British commander to capture the steamer
Caroline, owned by an American. The steamer was engaged in transporting war material and men to Navy Island, in the
Niagara River, through which runs the line separating the British from the American possessions. The vessel not being in her
usual place in Canadian waters, the force went into American jurisdiction and seized and destroyed her. One Durfee, an
American, was killed. To the American assertion that the proceeding was an outrage, the British Government replied that the
insurgents had used American ground as the starting-point of their expeditions and as their base of supplies. The controversy
was renewed by the arrest, in 1841, in the state of New York, of one McLeod, and his indictment for the murder of
Durfee. Great Britain demanded the release of
McLeod, stating that as he was an agent of the British Government engaged at the time in a public duty, he could not be held
amenable to the laws of any foreign jurisdiction. Mr. Webster, then Secretary of State, admitted the correctness of the
British contention, but seemed powerless to obtain the release of McLeod, on account of the inherent weakness of the Federal
system.[503] The
Supreme Court of the state of New York held in People v. McLeod, that McLeod could be proceeded against
individually on an indictment for arson and murder, though his acts had been subsequently averred by the British Government.
This view was generally condemned by jurists;[504] but the difficulty soon ended by the acquittal of McLeod. The British Government's contention was
that the seizure of the Caroline was excusable on the ground stated by Mr. Webster himself as "a necessity of
self-defense, instant, overwhelming, leaving no choice of means and no moment for deliberation."
The Twee Gebroeders, 3 C. Rob. 162
This case holds that a ship within three miles of neutral territory can not send boats beyond the line of division for the
purpose of capturing enemy vessels.
The Alabama Cases
Up to the period of the American civil war the opinion obtained among many that a vessel of war might be sent to sea from
a neutral port with the sole liability to capture as legitimate contraband, with the exception that, if she was ready to go
in condition for immediate warlike use, it was the duty of the neutral to prevent her departure. In 1863 during the American
civil war this view was practically taken by the
British court in the case of the Alexandra;[505] but the vessel after her release was taken on a new complaint at Nassau and
held until after the end of the war. Lawrence says that the attitude of the British Government in regard to this vessel, its
purchase in 1863 of two iron-clad rams of the Messrs. Laird for the navy, the construction, destination, and intended
departure of which occasioned the now famous correspondence between Lord Russell and Mr. Adams, the detention of the
Pampero, which was seized in the Clyde, until the end of the American civil war, and the preventing the sale of
"Anglo-Chinese gunboats against the advice of its own law officers," indicated that that government "had uneasy doubts as to
the validity of the doctrine laid down in their law-courts and maintained in their dispatches."[506] This doctrine would admit of a ship of war
going to sea from a neutral port without arms, which she might receive on the high seas from another vessel which had sailed
from the same port. For example, the Alabama left Liverpool in 1862 ready for warlike use, but without warlike
equipment. This and her crew were received on the high seas from other vessels which had cleared from Liverpool; and her
career as a Confederate cruiser then began. The cases of the Florida, the Georgia, and the Shenandoah
were almost identical. The spoliations committed by these vessels led to the Alabama claims, the British maintaining
that the American contention that it was the duty of a neutral to prevent the departure of all vessels that could reasonably
be expected as about to be used for warlike purposes was unsound.[507]
The Alabama case and kindred cases have produced much
speculation as to the establishment of a true and correct rule. After the enactment of the American
neutrality statutes in 1818, there were numerous decisions of the United States courts to the effect that the intent was to
govern, that is, if the purpose was to send articles of contraband, with the risk of capture, to a belligerent's country for
sale, the neutral government had nothing to say, but if the purpose was to send out a vessel to prey on the commerce of a
friendly power, then the neutral government should prevent her departure. It must be admitted that the rule is hardly
satisfactory.[508]
Hall contends that the true test should be "the character of the ship itself." If built for warlike use, the vessel should
be detained; if for commercial purposes, she should be allowed to depart. This rule has at least one element of fairness and
sense. It is not always possible to get at intent, but the character of the vessel is likely to reward observation and
scrutiny.[509]
Regret has been expressed by many writers that the award of the arbitrators appointed under the Treaty of Washington of
1871, upon the Alabama claims, has proved of so little value as a precedent upon the liability of a neutral power for
the departure from its ports of vessels fitted out and equipped for the destruction of belligerent commerce.
Article VI. of the Treaty provided that the Arbitrators should be "governed by the following three rules, which are agreed
upon by the high contracting parties as rules to be taken as applicable to the case, and by such principles of international
law not inconsistent therewith as the Arbitrators shall determine to have been applicable to the case.
"A neutral Government is bound—
"First to use due diligence to prevent the fitting out, arming, or equipping, within its jurisdiction, of any vessel which
it has reasonable ground to believe is intended to
cruise or to carry on war against a Power with which it is at peace; and also to use like diligence to prevent the departure
from its jurisdiction of any vessel intended to cruise or carry on war as above, such vessel having been specially adapted,
in whole or in part, within such jurisdiction, to warlike use.
"Secondly, not to permit or suffer either belligerent to make use of its ports or waters as the base of naval operations
against the other, or for the purpose of the renewal or augmentation of military supplies or arms, or the recruitment of
men.
"Thirdly, to exercise due diligence in its own ports and waters, and, as to all persons within its jurisdiction, to
prevent any violation of the foregoing obligations and duties."
The British government declared that it "cannot assent to the foregoing rules as a statement of principles of
international law which were in force at the time when the claims mentioned" arose but "in order to evince its desire of
strengthening the friendly relations between the two countries and of making satisfactory provision for the future, agrees
that in deciding the questions between the two countries arising out of those claims, the Arbitrators should assume that her
Majesty's government had undertaken to act upon the principles set forth in these rules.
"And the high contracting parties agree to observe these rules as between themselves in the future, and to bring them to
the knowledge of other maritime Powers, and to invite them to accede to them."[510]
The phrases "due diligence" and "base of naval operations" gave rise to a difference of opinion, as also the last part of
paragraph "First" relative to preventing the departure of vessels intended to carry on war and adapted for warlike use.
The contentions and the decision relative to the last point were as follows:
1. The British Contention
This was that the only duty of Great Britain applied to the departure of the vessel originally, and that, if she escaped,
and afterwards as a duly commissioned war-ship entered a British port, there was no obligation to detain her.[511] The case of the
Schooner Exchange v. M'Faddon[512] was cited, in which a libel was filed in 1811 against that vessel, then in American waters, as an
American vessel unlawfully in the custody of a Frenchman, the libellants contending that in December 1810, while pursuing her
voyage she had been forcibly taken by a French vessel at sea. The Attorney General suggested that she was a public armed
vessel of France, visiting our waters as a matter of necessity. Chief Justice Marshall decided that as a public vessel of war
coming into our ports and demeaning herself in a friendly manner she was exempt from the jurisdiction of the country.
2. The American Contention
This was that if a Confederate cruiser, which had originally escaped, afterwards came into a British port, her commission
was no protection, as it was given by a government whose belligerency only, not sovereignty, had been acknowledged.[513]
3. The Award of the Tribunal
This award exceeded the claim of the United States in deciding that "the effects of a violation of neutrality committed by
means of the construction, equipment and armament of a vessel are not done away with by any commission which the Government
of the belligerent power, benefited by the violation of neutrality, may afterwards have granted to that vessel; and the
ultimate step, by which the offense is completed,
cannot be admissible as a ground for the absolution of the offender, nor can the consummation of his fraud become the means
of establishing his innocence," that "the privilege of extra-territoriality accorded to vessels of war has been admitted into
the law of nations, not as an absolute right, but solely as a proceeding founded on the principles of courtesy and mutual
deference between different nations, and therefore can never be appealed to for the protection of acts done in violation of
neutrality," and that "the absence of a previous notice can not be regarded as a failure in any consideration required by the
law of nations, in those cases in which a vessel carries with it its own condemnation."[514]
That the decision of the Tribunal has not become a precedent is quite generally conceded. Lawrence asserts that the award
seems "to have been dictated more by a regard for equitable considerations than by reference to principles hitherto accepted
among nations;" that other nations have refused to accede to the "three rules" and "that it has been doubted whether they
bind the two powers which originally contracted to observe them."[515]
It is to be observed, however, that at the present time a cruiser is of such peculiar construction and depends for her
efficiency on such a large outlay of money that an honest neutral is likely to have abundant proof of her character and hence
the best reasons for detaining her.
The Peterhoff, 5 Wall. 28, 62
The Peterhoff, a British steamer, bound from London to Matamoras in Mexico, was seized in 1863 by a United States
vessel. It was held that the mouth of the Rio Grande was not included in the blockade of the ports of the Confederate states; that neutral commerce with Matamoras, a
neutral town on the Mexican side of the river, except in contraband destined to the enemy, was entirely free; and that trade
between London and Matamoras, even with intent to supply, from Matamoras, goods to Texas, then an enemy of the United States,
was not unlawful on the ground of such violation. Questions of contraband were also considered, and Chief Justice Chase
concluded, "Considering ... the almost certain destination of the ship to a neutral port, with a cargo, for the most part,
neutral in character and destination, we shall not extend the effect of this conduct of the captain to condemnation, but we
shall decree payment of costs and expenses by the ship as a condition of restitution."
The Commercen, 1 Wheat. 382
In 1814, during the war between the United States and Great Britain, a Swedish vessel bound from Limerick, Ireland, to
Bilboa, Spain, with cargo of barley and oats, the property of British subjects, was seized and brought into an American port.
The cargo was shipped for the sole use of the British forces in Spain. The cargo was condemned.
The Jonge Tobias, 1 C. Rob. 329
This was a case of a ship taken on a voyage from Bremen to Rochelle, laden with tar. The ship was claimed by one Schraeder
and others. Schraeder, who was owner of the cargo, withheld his claim, knowing it would affect the ship. The cargo and his
share of the vessel were condemned in 1799, and an attestation was required of the other part owners of the vessel that they
had no knowledge of the contraband goods.
The Magnus, 1 C. Rob. 31
A ship laden with coffee and sugars was taken on a voyage from Havre to Genoa. The claimant of the cargo was a Swiss merchant. Held, that while interior countries are
allowed to export and import through an enemy's ports, strict proof of property is required. The cargo was condemned.
The Kow-Shing Affair, Takahashi, 24-51
On July 25, 1894, a Japanese war-ship stopped the Kow-Shing, a British transport engaged in carrying Chinese
troops. After fruitless parleying, the Kow-Shing refusing to surrender as her British captain was overawed by the
Chinese he was carrying, the Kow-Shing was sunk by the Japanese war ship. The affair produced great excitement in
England, and there was a demand of satisfaction from Japan on the ground that war had not been declared between that country
and China. The facts appearing that a declaration of war is not necessary, and that the British captain of the transport was
under compulsion, the affair was referred to Mr. Choate, the American Ambassador to Great Britain, as referee.
The Friendship, 6 C. Rob. 420, 429
This was the case of an American ship bound on a voyage from Baltimore to Bordeaux, with a light cargo and ninety French
mariners as passengers, shipped by direction of the French minister in America. In condemning the ship and cargo in 1807, Sir
William Scott said, "It is the case of a vessel letting herself out in a distinct manner, under a contract with the enemy's
government, to convey a number of persons, described as being in the service of the enemy, with their military character
traveling with them, and to restore them to their own country in that character."
The Orozembo, 6 C. Rob. 430
An American vessel, having been ostensibly chartered by a merchant at Lisbon "to proceed in ballast to Macao,
and there to take a cargo to America," was
afterwards, by his directions, fitted up for three military officers and two persons in civil departments in the government
of Batavia, who had come from Holland to take their passage to Batavia, under the appointment of the Government of Holland.
The vessel was condemned in 1807 as a transport, let out in the service of the government of Holland.
The Atalanta, 6 C. Rob. 440
A Bremen ship and cargo were captured on a voyage from Batavia to Bremen, in July, 1807, having come last from the Isle of
France, where a packet, containing dispatches from the government of the Isle of France to the Minister of Marine at Paris,
was taken on board by the master and one of the supercargoes, and was afterwards found concealed in the possession of the
second supercargo. Both ship and cargo were condemned.
The Juffrow Maria Schroeder, 3 C. Rob. 147
"Where a ship has contracted the guilt by sailing with an intention of entering a blockaded port, or by sailing out, the
offense is not purged away till the end of the voyage; till that period is completed, it is competent to any cruisers to
seize and proceed against her for that offense." In this case the plea of remissness in the blockading force in permitting
vessels to go in or out, was held to avail, and the ship, which was a Prussian one taken on a voyage from Rouen to Altona and
proceeded against for a breach of the blockade of Havre, was restored.
The Hart, 3 Wall. 559, 560
"Neutrals who place their vessels under belligerent control and engage them in belligerent trade; or permit them to be
sent with contraband cargoes under cover of false destination
to neutral ports, while the real destination is to belligerent ports, impress upon them the character
of the belligerent in whose service they are employed, and cannot complain if they are seized and condemned as enemy
property." See the preceding case, The Bermuda, 3 Wall. 514.
The Maria, 5 C. Rob. 365
This was a case of a continuous voyage in the colonial trade of the enemy. The Court reviewed former cases and asked for
further proof on the facts. On such further proof the court decreed restitution. See The William, 5 C. Rob. 385.
The Ship La Manche, 2 Sprague, 207
This case held that captors are not liable for damages where the vessel captured presents probable cause for the capture,
even though she was led into the predicament, involuntarily, and by the mistakes of the revenue officers of the captor's own
government.
