ower to add to the ignominy of Hale's execution, the Amerians spared no exertions to lighten the hours of André's capvity, and to show their regret that the stern exigencies of the Far required his death. Again, while the Americans unaninously condemned the barbarous treatment' which Hale eceived before his execution, they, with equal unanimity, acknowledged the justice of his sentence. Many of the English, on the contrary, while acknowledging the kind treatment of André, by the American officers, and their expressions of sympathy for his fate, not only complained at the time that his sentence was unjust, and his execution In 1780, the American General Arnold, commanding the fortress at West Point, carried on negotiations with Sir Henry Clinton to enable the latter to surprise that fortress. Major André was the English agent, and had frequent communication with Arnold, on the beach, without the posts of both armies. One night, being unable to return by a boat, as was his custom, he changed his uniform, which he wore under a surtout, for a common coat, and tried to return on horseback to his own lines, but was taken prisoner. Two foreigners ignorant of English, and several of the most illiterate American generals, were members of the court-martial. The fact of being accidentally (not for any purpose of espionage) dressed as a citizen, instead of being in uniform, was argued as an aggravation to his crime. Three months elapsed before his execution. When he saw the gallows, instead of the rifle, his firmness in some degree forsook him. He only said, 'I die for the honour of my king and country,' to which General Green, the American commander who presided, observed, 'No, you die for your cowardice and like a coward.' Washington had signed his death-warrant with great reluctance. Arnold escaped on board a British man-of-war. The American Government would doubtless have saved André if the British Government would have given up the traitor Arnold. (Faux's Mem. Days, 402: Holmes, Annals, 358.) On the other hand Hale was confessedly in disguise, and thereby had examined every part of the British army, and obtained the best possible intelligence respecting its situation and intended operation. He was taken flagrante delicto one day, and summarily executed the next morning by the provost-marshal, 1776.—Holmes, Annals, 305. As for André, in the opinion of King George III., his character was untarnished; a pension was settled on his mother, and his brother was created a baronet. In 1780, Lord Cornwallis, commanding the British forces, complained to the American Major-general Gates, that the officers and men taken at King's Mountain were treated with an inhumanity scarcely credible. Also to Sir Henry Clinton he writes, however provoked by the horrid outrages and cruelties of the enemy in this district, I have always endeavoured to soften the horrors of war, and received the acknowledgment of General Gates and the principal officers of the enemy's army for the tenderness and attention shown to their wounded and prisoners. I will not hurt your excellency's feelings by attempting to describe the shocking tortures and inhuman murders which are every day committed by the enemy, not only on those who have taken part with us, but on many who refuse to join them.'-Cornwallis, vol. i. a 'blot' upon the reputation of Washington, but these charges have since been repeated by some of their ablest writers, and especially by Lord Mahon in his 'History of England,' and by Phillimore in his 'Commentaries of International Law.' It is not denied that André was within the American lines in disguise, for the purpose of gaining information of the disposition of our forces, and of closing negotiations with Arnold for their surrender; but it is contended that, being there with the authority of Arnold, and under a passport from him, he was not legally a spy. André himself never attempted so flimsy a defence; he scorned all prevarication, and was condemned on his own confessions. His defenders seem to forget that the passport of a traitor, given for treasonable purposes, could afford no protection. It had no more legal force than Arnold's agreement to surrender the American defences; if Washington was bound to recognise this passport, he was equally bound to carry out the entire agreement, by surrendering to the enemy West Point and its garrison! Moreover, even though André had not been a spy, in the strict technical meaning of that term, he nevertheless, deserved death, for the laws of war impose that punishment upon anyone who attempts to seduce the fidelity of an officer by bribery, or to induce a soldier to desert his colours. And this penalty is now prescribed by the statute of the United States,1 § 28. While all agree that we have no right to require any man to perform the services of a spy, and that if we attempt to tamper with the fidelity of an enemy's officer or soldier, we incur the risk of such punishment as that enemy, under the laws of war, may impose, there is a difference of opinion with regard to our rewarding such acts. Some say that we may purchase treason or desertion, if we merely accept offers which are made to us; while others contend that, if we pay money for the services of spy, or for the surrender of a fort, or an army, or for traitorous acts which may lead to their capture, we encourage perfidy and treachery nearly as much as though the offer first came from ourselves. Without attempting to decide this question of ethics, we will merely remark, that 1 Phillimore, On Int. Law, vol. iii. § 106; Hamilton, Hist. of the Republic, vol. i.; André; Holmes, Annals. Mahon, Hist. of England; he Romans, in their heroic ages, rejected with indignation every advantage offered by an enemy's subjects. They sent back to the Falisci, bound and fettered, the traitor who had offered to deliver up the king's children; and they refused to make any account of the victory of their consul over Viriatus, because it had been obtained by means of bribery. In speaking of the lawfulness of such acts, Vattel remarks, that although generals practise them, they are never heard to boast of having done so. 29. It sometimes happens in war that intestine divisions prevail among the enemy's forces, and that one party may favour the objects for which we are contending; in such cases we may, without scruple, hold correspondence with the one faction, and avail ourselves of its assistance to overthrow the other party. We thus promote our own interest and gain the objects of the war, without seducing anyone to crime, or even becoming the partakers of treachery. The right to side with a faction in war is broadly different from the pretended right of forcible intervention in time of peace. A third party may side with the one or the other of the conflicting forces, just as he might in a war between separate and independent nations. If he have just cause of war against one of the parties, he may avail himself of the assistance of the other.1 1 Vattel, Droit des Gens, liv. iii. ch. x. § 181; Kent, Com. on Am. Law, vol. i. p. 25; Bello, Derecho Internacional, pt. ii. cap. vi. § 3. General Orders, WAR DEPARTMENT, The following Instructions for the Government of Armies of the United States in the Field,' prepared by Francis Lieber, LL.D., and revised by a Board of Officers, of which Major-General E. A. Hitchcock is president, having been approved by the President of the United States, he commands that they be published for the information of all concerned. By order of the Secretary of War. E. D. TOWNSEND, Assistant Adjutant-General. INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES OF THE UNITED STATES IN THE FIELD. SECTION I. Martial Law-Military Jurisdiction-Military Necessity—Retaliation. I. A PLACE, district, or country occupied by an enemy stands, in consequence of the occupation, under the martial law of the invading or occupying army, whether any proclamation declaring martial law, or any public warning to the inhabitants, has been issued or not. Martial law is the immediate and direct effect and consequence of occupation or conquest. The presence of a hostile army proclaims its martial law. 2. Martial law does not cease during the hostile occupation, except by special proclamation, ordered by the commander-in-chief; or by special mention in the treaty of peace concluding the war, when the occupation of a place or territory continues beyond the conclusion of peace as one of the conditions of the same. 3. Martial law in a hostile country consists in the suspension, by the occupying military authority, of the criminal and civil law, and of the domestic administration and government in the occupied place or territory, and in the substitution of military rule and force for the same, as well as in the dictation of general laws, as far as military necessity requires this suspension, substitution, or dictation. The commander of the forces may proclaim that the administration of all civil and penal law shall continue, either wholly or in part, as in times of peace, unless otherwise ordered by the military authority. 4. Marshal 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, honour, 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 gents. 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 Ear 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, ats 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. Offences to the contrary shall be severely punished, and especially so if committed by officers. 12. Whenever feasible, martial law is carried out in cases of individual offenders by military courts; but sentences of death shall be executed only with the approval of the chief executive, provided the urgency of the case does not require a speedier execution, and then only with the approval of the chief commander. 13. Military jurisdiction is of two kinds: first, that which is conferred and defined by statute; second, that which is derived from the common law of war. Military offences under the statute law must be tried in the manner therein directed; but military offences which do not come within the statute must be tried and punished under the common law of war. The character of the courts which exercise these jurisdictions depends upon the local laws of each particular country. In the armies of the United States the first is exercised by courtsmartial; 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 |