APPENDICES APPENDIX A PROFESSOR FRANCIS LIEBER'S INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES OF THE UNITED STATES IN THE FIELD HISTORY THE need of a positive code of instructions was severely felt during the early part of the Civil War in the United States. During the first two years of that war the Federal Government had succeeded in placing in the field armies of unexampled size, composed, in great part, of men taken from civil pursuits, most of whom were unfamiliar with military affairs, and so utterly unacquainted with the usages of war. These armies were carrying on hostile operations of every kind over a wide area, and questions of considerable intricacy and difficulty were constantly arising, which required for their decision a knowledge of international law which was not always possessed by those to whom these questions were submitted for decision. Conflicting decisions and rulings were of frequent occurrence in different armies, and at times in different parts of the same field of operations; and great harm not infrequently resulted before these decisions could be reversed by competent authority. To remedy this difficulty, Professor Francis Lieber, an eminent jurist, who had been for many years an esteemed and honored citizen of the United States, was requested by the Secretary of War to prepare a code of instructions for the government of the armies in the field. This code, while conforming to the existing usages of war on land, was to contain such modifications as were necessary to adapt those usages to the peculiar circumstances of the contest then prevailing. The rules prepared by Dr. Lieber were submitted to a board of officers, by whom they were approved and recommended for adoption. They were published in 1863, and were made obligatory upon the armies of the United States by their publication in the form of a General Order of the War Department. Although more than a generation has elapsed since they were prepared, they are still in substantial accordance with the existing rules of international law upon the subject of which they treat, and form the basis of Bluntschli's and other elaborate works upon the usages of war. They are accepted by text writers of authority as having standard and permanent value, and as expressing, with great accuracy, the usage and practice of nations in war. There has been some misunderstanding, however, as to the force and significance of Professor Lieber's rules, to which it is proper to allude. The war which existed at that time was strictly internal in character; and, although the belligerency of the states in rebellion had been recognized by the Federal Government, the character of the contest, in many of its aspects, differed materially from an external war, in which the belligerent parties were independent states. The war policy of the United States towards the insurrectionary forces was, in the main, in accordance with the laws of war, as those laws were then accepted and understood. Its enemies, however, were its own citizens, who, for the time, denied its sovereign authority, and refused obedience to its laws. Its right to suppress the rebellion, and its right to choose its method of doing so, were alike beyond dispute. In the exercise of this right it was at perfect liberty to choose any policy between the methods provided by its municipal laws, on the one hand, and those provided by the law of nations on the other. As a matter of fact it chose a war policy lying between the extremes above indicated. General operations in the field were carried on in accordance with the laws of war. In its treatment of the property of individuals in rebellion, in its view of occupation and of occupied territory, and in its policy towards the residents of such occupied territory, it pursued a course which it deemed best suited to the task upon which it was then engaged-the suppression of a rebellion against its authority. The rules, therefore, cannot fairly be said to contain a full expression of the views or future policy of that government upon the subject of external war. Should such a war occur, it is at least extremely probable that the United States would range itself with those powers whose practice it is to maintain small permanent establishments, and whose policy is defensive rather than offensive.' (General Orders No. 100, Adjutant-General's Office, 1863.) INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES OF THE UNITED STATES IN THE FIELD PREPARED BY FRANCIS LIEBER, LL.D., AND REVISED BY A BOARD of offiCERS OF THE UNITED STATES ARMY SECTION I NECESSITY MARTIAL LAW MILITARY 1. How Established. A place, district, or country occupied by an enemy stands, in consequence of the occupation, under the martial law of the invading or occupying army, whether any proclamation. declaring martial law, or any public warning to the inhabitants, has been issued or not. Martial law is the immediate and direct effect and consequence of occupation or conquest. The presence of a hostile army proclaims its martial law. 2. Martial law does not cease during the hostile occupation, except by special proclamation, ordered by the commander-in-chief, or by special mention in the treaty of peace concluding the war, when the occupation of a place or territory continues beyond the conclusion of peace as one of the conditions of the same. 3. In What it Consists. 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. 1 These instructions were issued, without modification, for the government of the armies of the United States during the war with Spain in 1898. 4. Effects. 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 |