  INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES OF THE UNITED STATES IN THE FIELD
INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES OF THE UNITED STATES IN THE FIELD SECTION IMartial 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 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 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. SECTION IIPublic 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 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. SECTION IIIDeserters—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 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 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 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 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. SECTION IVPartisans—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, 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. SECTION VSafe-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 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 concern 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 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. SECTION VIExchange 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 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. SECTION VIIThe 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. SECTION VIIIArmistice—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 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. SECTION IXAssassination 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 fol SECTION XInsurrection—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. 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 citi 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.
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| 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
SECTION I
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
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.
SECTION II
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.
SECTION III
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
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.
SECTION IV
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
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 control
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
The expenses of hospital care and of internment shall be borne by the State to which such shipwrecked, wounded, or sick belong.
SECTION V
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,
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.
SECTION VI
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
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.
SECTION VII
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
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.
SECTION VIII
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
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.
SECTION IX
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 com
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,
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,
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.
PROCEDURE IN PRIZE COURT
DISTRICT COURT OF THE UNITED STATES, SOUTHERN DISTRICT OF FLORIDA
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
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
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 cap
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.
U.S. DISTRICT COURT, SOUTHERN DISTRICT OF FLORIDA
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
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.
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.
IN THE DISTRICT COURT OF THE UNITED STATES, SOUTHERN DISTRICT OF FLORIDA
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
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.
FORM OF DECREE OF DISTRIBUTION.
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.
________________________________________
Judge of the District Court of the United States,
for the Southern District of Florida.
DIGEST OF IMPORTANT CASES ARRANGED UNDER TITLES
15. Precedent and Decisions
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.
21. Recognition of New States
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.
55. Vessels
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.
64. Extradition
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
101. Non-Combatants
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."
104. Personal Property of Enemy Subjects
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.
110. Privateers
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.
112. Capture and Ransom
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.
113. Postliminium
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.
115. Non-hostile Relations of Belligerents
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"
119. Termination of War by Treaty of Peace
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."
126. Neutral Territorial Jurisdiction
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.
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.
129. Positive Obligations of a Neutral State
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
The Alabama case and kindred cases have produced much
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.
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
"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."
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.
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.
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
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."
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.
131. Contraband
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
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.
132. Penalty for Carrying Contraband
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
133. Unneutral Service
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
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.
137. Violation of Blockade
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.
138. Continuous Voyages
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
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.
139. Prize and Prize Courts
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.
