This is in response to Susan Howard's 12/1/08 0432.

I am not so sure that the laws/customs/usages of war, as codified by Vattel and Martens, are all that vague concerning the proper treatment of civilians who do not take up arms against invaders. I think there was general acceptance by civilized nations that they and their property should be saved harmless. What was lacking was an established treaty or agreement between European nation states on the matter and, of course, some form of sanctions against those nations which did not follow them. But all that would lay some distance in the future.

Nonetheless, there are frequent references in the documentation relating to the American and British armies that fought in North America in 1812-1815 to the "laws, usages or customs" of war as they applied to civilians so it is certain that English-speaking armies at least were aware of these laws and did their best to follow. As one of many examples that I could provide, perhaps the best is the General Order issued by Major-General Jacob Brown of the US Army before his division invaded Canada in July 1814 in which he states that "The laws of war will govern -- men found in arms, or otherwise engaged in the service of the enemy, will be treated as enemies, those behaving peaceably, and following their private occupations, will be treated as friends. ...... Private property in all cases will will held sacred. ...... Any plunderer shall be punished with death who may be found violating this order."

Similar orders were issued by other American and British commanders and a brief examination of the conduct of regular troops in North America demonstrates clearly that, with two major exceptions, they followed the generally accepted laws/customs/usages of war as codified by Vattel and Martens. This is not to say that American or Canadian civilians were not harmed by regular troops but such acts were committed by lawless individuals and, if the perpetrators were apprehended, they were punished swiftly and severely.

The first exception to this rather civilized conduct of war was the British punitive campaign on the American side of the Niagara River carried out in December 1813 and January 1814 which destroyed almost every building along a 35-mile stretch of frontier, leaving hundreds of civilians homeless. This was done -- and the reason it was done was stated in a proclamation issued by the British C in C, North America -- in retaliation for the destruction of the Canadian town of Newark by New York militia some weeks earlier. The burning of Newark was not authorized by the US government which made an official apology for the act. It was, however, felt by senior British officers that such needless destruction warranted retaliation and, once this was done, they stated by proclamation that the British army would refrain from such measures in the future, if the US did the same.

The second exception occurred during a raid on Hampton, Virginia in June 1813 when British troops (actually French deserters in British service but that is immaterial) ran somewhat amok and committed several crimes -- including murder, rape and robbery -- against unoffending civilians. Although the British commander knew who had committed these crimes and admitted as much to his American counterpart, he took absolutely no steps to apprehend or punish the guilty. That officer was Colonel Thomas Sydney Beckwith (late 1/95th Foot in the Peninsula) and my conclusion on his behaviour was that Beckwith's failure to carry out the appropriate measures "sullied not only an otherwise impeccable record as a professional soldier, but also the reputation of British arms." **

Beckwith had the power, under British military law, to punish the offenders at Hampton and that brings us around to your point that discussion should perhaps examine the prevailing military law in the British and French armies, which is a good one. As it so happens, I do have some information on British military law, as regards treatment of friendly and hostile civilians.

British military law of the Napoleonic period was based on two documents, the prerogatory Articles of War and the statutory Mutiny Act. Of the two, the Act was regarded as having greater power as it was passed by Parliament while the Articles, being prerogatory to the Crown (in reality the C in C at the War Office)was of lesser power -- Britain being a constitutional monarchy, (remember "The sovereign reigns but parliament rules.") Both documents had been constantly amended for more than a century to fit changing situations and, indeed, they were amended several times during the period, 1793-1815.

The provisions of the Act were at first restricted to operating only on British territory but this was extended by Parliament in 1803 and 1806 to non-British territory. The Act and Articles provided for three types of courts martials to punish offenders: the Regimental, District and General Courts Martial. Only the General Court Martial had the power to pronounce a sentence of capital punishment and thus was the most powerful. In peacetime the sentences passed by GCMs were subject to review by the Crown (and George III took a great interest in them) but in wartime, as this was not always possible, the practice was to grant the commander of a major overseas force the power to convene and review GCMs and, indeed, Wellington was given this power. Of the three types of court, only the GCM could sentence offenders to capital punishment, the Regimental and District CMs were limited to sentences of 999 lashes (which, frankly, might acomplish the same purpose).

British soldiers were intimately familiar with the Articles of War as certain provisions providing for the death penalty for mutiny, insubordination and desertion had to be read to recruits before they signed their papers. Furthermore, Army Regulations laid down that regimental commanders had to read all the Articles of War to their units at least every two months while their men were assembled on parade. In addition, the Regulations directed that any General Orders relating to conduct and discipline were to be read to the troops at the same time. Anyone who has perused Wellington's general orders knows that they contain numerous references to the results of GCMs on soldiers who harmed the civilian populations of Portugal, Spain and, yes, France. Therefore a British soldier had no excuse for not knowing the military law as it pertained to the treatment of civilians.

The treatment of foreign civilians was an logical outgrowth of the provisions in the Act and Articles pertaining to the treatment of British civilians. Any soldier who harmed a British civilian or his/her property was handed over to the civil courts for punishment or, if this was not possible, as in a colony where civil law was absent, brought before a GCM. The Army Regulations also stressed that it was the duty of any officer to take notice of any impropriety on the part of their subordinates.

Okay, so the commander of a British army on campaign had the authority to convene GCMs which had the power of sentencing any soldier who committed crimes against civilians, be they from allied or enemy nations, to death. This was certainly the case in the Peninsula and, as I mentioned above, Wellington's GOs are full of references to enlisted men being sentenced to death for murdering, robbing or raping civilians and I might add that, before his army crossed the French border in 1813, he issued a GO stressing that French civilians were to be saved harmless from criminal acts on the part of the soldiers and he enforced it.

There was, however, another procedure for punishing British soldiers who harmed civilians and this was summary punishment, often mistakenly called a "drum head court martial." This procedure allowed a senior officer to summarily punish a soldier on the spot and was mainly used where the provosts had caught the offenders in the act and apprehended him. Summary punishment was a traditional custom/tradion of the British army when on foreign service and although it was not covered in the Act or Articles, yet it was used through the period, 1793-1815. The Duke of York executed two soldiers in Holland in 1794 who had robbed and murdered a Dutch woman and wounded her child, on no other evidence than the word of a general officer -- however they had been caught in the act. Moore, Paget and Craufurd resorted to summary punishment, either hanging, shooting or flogging, to punish soldiers who were insubordinate or who harmed civilians during the retreat to Corunna in 1809. Wellington certainly made use of it in his army, although his assistant provost marshals did not have the authority to use capital punishment unless the malefactor was caught in the act, he backed them up by either ordering summary punishment himself or sending the culprit to a GCM.

In 1809 he became concerned about the use of summary punishment, particularly the liability of his assistant provost marshals, and queried the government whether it would not be possible to put the use of summary punishment on a more sound legal basis than traditional custom. The reply of the law officers of the Crown was somewhat complicated as, although they recognized the necessity in times of war for an officer to have the power of life and death over his subordinates, this was so contrary to British law that they did not feel that such a provision could be made although they were quick to reassure Wellington that, since summary punishment was most often resorted to only in the case of serious crimes where the culprit had been caught red-handed, or nearly red-handed, they did not think there would be any problem of liability on the part of Wellington or his provost marshals.

In 1813, however, parliament passed an act authorizing the creation of a "Detachment General Court Martial" which permitted the commander of any army or any officer so delegated by him to try and punish offenders on the spot, executing them if they felt it was warranted. The DGCM really gave legal form to the practice of summary punishment and was the true "drum head court martial" and, indeed, was renamed that in the Mutiny Act of 1829.

In a nutshell that is the relevant British military law as it relates to the treatment of friendly or enemy civilians and the punishment of British soldiers who harmed them. Clearly, despite the provisions of this law, British soldiers did commit crimes against civilians. I have noted Hampton as one instance, other examples would be the retreat to Corunna in 1809, and Ciudad Rodrigo and Badajoz in 1812. Hampton excepted, however, attempts were made to curb the excesses and punish the offenders -- they were not successful but at least they were made.

Perhaps Kevin, or anyone else, might favour us with a similar nutshell summary of French military law during the period. And perhaps, in doing so, someone can explain to me whether the French soldiers who herded 200 innocent men, women and children into the village church at Porto de Mas in March 1811 and burned them alive, were ever punished for this act of mass murder. Of course, they were not -- we all know that -- but the question is why not?

I surmise that they got away with this atrocity because their officers let them get away with it (indeed, if those officers did not order or participate in the act). Those officers did that because they knew that their senior officers were not going to punish this crime and so the responsibility for Porto de Mas goes all the way up to Massena who did not maintain, or it appears, even attempt to maintain discipline in his army. And, of course, it goes from Massena upward to the shorn one himself.

And there I shall leave it.

DG

* Donald E. Graves, "'Worthless is the laurel steeped in female tears:' An Investigation into the Outrages Committed by British Troops at Hampton, Virginia, in 1814," Journal of the War of 1812, (Winter 2002), 4-20.