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26 June, 2013
Secretary Root's Record:"Marked Severities" in Philippine Warfare|
The Policy Not Justified by General Order No. 100
|Are such orders justified by the general order promulgated by President Lincoln?
References to this general order are made in several of General Bell's orders. Let us see what
they are. He says:
1. No station commander will put any one to death as a measure of retaliation for assassination,
under Section 27, 28, 34, and 148, without obtaining authority from a superior commander; nor
will the death penalty be inflicted in any case without similar authority.
Let us see how these sections read:
SECT. 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.
SECT. 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
Section 34 merely provides that the property belonging to churches, hospitals, charitable and
educational institutions, etc., is not generally to be regarded as public property, which a victor
may seize as belonging to the hostile nation.
SECT. 148. The law of war does not allow proclaiming either an individual belonging to the
hostile army or a citizen or a subject of a hostile government an outlaw, who may be slain
without trial by any captor, any more than the modern law of peace allows such intentional
outlawry. On the contrary, it abhors such outrage. The sternest retaliation should follow the
murder committed in consequence of such proclamation made by whatever authority. Civilized
nations look with horror upon offers of rewards for the assassination of enemies, as a relapse into
These provisions surely do not justify but rather condemn General Bell's orders.
If "retaliation shall only be resorted to after careful inquiry," and if even an enemy may not be
proclaimed an outlaw, surely a general has not the right to assume that whole provinces of
peaceful citizens are enemies, and then to proceed against them all in the manner directed by
General Smith and General Bell.
General Bell, in the order of December 9, also says:
Particular attention is invited to the last paragraph of Section 52, in particular reference to
possible repetitions of the Balangiga affair.
There were no repetitions, and therefore no occasions for applying this provision. Let us,
however, quote it:
SECT. 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.
This surely does not justify an officer in assuming that a whole people are "hostile in heart," and
therefore, though they are peaceful, treating them as if they had risen. It is the overt act, not the
inevitable feeling of the conquered, at which this article is aimed.
These are the only sections of General Order 100 referred to in General Bell's orders of
December 8 and 9, 1901. The order of December 13 charges the Filipinos with various violations
of the laws of war; and, without an exception, the provisions so quoted provide for the
punishment and fix the status of the guilty parties. Not one of the rules permits a military
commander to assume that a given person has been guilty of such offences, far less to give all his
subordinates power to make such assumption, and still less to assume that whole communities
are guilty, and to burn, kill, and devastate accordingly.
Among the violations charged is this:
Third. In order to confuse their identity, and thereby be able the more safely to conduct their
skulking operations, they have adopted the uniform of our army and native troops, without any
plain striking and uniform mark of distinction of their own.
Was it not an officer of our army who clothed Macabebes and their commander in the uniform of
the Filipino army, and by this deceit, aided by food furnished by Aguinaldo at his request,
obtained access to Aguinaldo's camp, and there without notice fired upon him and his followers?
Was he not for that highly praised and made a brigadier-general? Was that a "skulking
operation," and are the Filipinos savage outlaws for following an example so much admired by
General Bell, however, claims the right of retaliation, under the provisions of Section 59 and
whenever the duly and carefully ascertained conditions and circumstances warrant the same,
under the restrictions imposed in Section 28.
The latter and Section 148 have been quoted and discussed.
SECT. 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.
The first clause means that a man who has violated the laws of war may be punished when
caught, but it does not mean that his guilt may be assumed.
The second clause applies to such a case as occurred during the Civil War, when our purpose to
hang certain captured privateersmen as pirates was met by the Confederate threat to hang some
of our captured officers if we persisted.
Peaceful citizens are not prisoners of war, nor were Bell's orders retaliation. General Order No.
100, Section 49, settles this.
SECT. 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.
It is clear that the whole population of a province which has been occupied do not become
prisoners of war, and the provisions quoted do not justify the orders.
Nor does General Bell claim this. He only cites Sections 59 and 148 as authorizing him to
execute a prisoner of war, chosen by lot, whenever an assassination occurs of an American or a
He then calls attention to "the last paragraph of Section 29, and to the provisions of Section
The first reads as follows:
The more vigorously wars are pursued, the better it is for humanity. Sharp wars are brief.
This does not mean that the laws of war are repealed. Otherwise why the other 156 sections of
the order? It means "Fight hard, but remember the rules."
Section 134 reads:
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 may arrest, confine, or detain them.
Does that mean that without any demand for or failure to give pledges he may burn their
dwellings, devastate their country, and kill them? It is idle to contend that this provision justifies
these orders. In an order of December 15, 1901, General Bell says:
Though Section 17, General Orders 100, authorizes the starving of unarmed hostile belligerents
as well as armed ones, provided it leads to a speedier subjection of the enemy.
Section 17 does say:
It is lawful to starve the hostile belligerent, armed or unarmed, so that it leads to the speedier
subjection of the enemy.
But does the word "belligerent" mean nothing? Is it lawful to starve a people who are pursuing
their peaceful avocations, if the military commander chooses to assume that they are "hostile at
Later, in the same order, General Bell refers to Sections 21, 37, 38, and 156 of General Orders
100, and again to Section 76, as justifying his policy of making "the existing state of war so
inconvenient and unprofitable to the people," or, as he elsewhere says "intolerable," as to make
them desire peace.
Section 21 is a general statement:
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.
This does not mean that he is not also protected by the laws of war.
SECT. 37. The United States acknowledge and protect in hostile countries occupied by them
religion and morality, strictly private property, the person of the inhabitants, especially those of
women, and the sacredness of domestic relations. Offences to the contrary shall be rigorously
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.
SECT. 38. Private property, unless forfeited by crimes or by offences of the owner, can be seized
only by way of military necessity for the support or other benefit of the army of the United
If the owner has not fled, the commanding officer will cause receipts to be given, which may
serve the spoliated owner to obtain indemnity.
In other words, the rule is to respect private property. The exceptions are the right to tax, and to
take property for temporary purposes for the use of the army upon giving receipts. Wherein,
then, is found the right to burn houses, to confiscate the property of noncombatants, to hunt and
kill people, to lay waste a province?
SECT. 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
SECT. 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 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
non-combatant 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 and his government have the right to decide.
In these carefully guarded provisions can any one find the words "kill," "burn," "devastate," or
any equivalent? Are not the rights of "non-combatant enemies" especially guarded?
Can any one contend that these rules justify General Bell's orders, or contemplate the policy of
"unsupportable pressure" upon noncombatants through concentrations, enforced labor, and all
that was done in Batangas, and done not because the army needed the labor or the property, but
to make them "want peace and want it badly."
Nor do we find anything that justifies action on such a sweeping assumption as we find in
General Bell's order of January 23, 1902.
Inasmuch as it can be safely assumed that at one time or another since this war began every
native in the provinces of Batangas and Laguna (and in the provinces of Cavite and Tayabas
also) has, with exceedingly rare exceptions, taken some part in aiding and assisting the
insurrection against the United States, they have all rendered themselves liable.
In other words, men who had repented and surrendered were to be treated as if still belligerent.
Two more general sections are referred to:
SECT. 7. Martial law extends to property and to persons, whether they are subjects of the enemy
or aliens to that government.
SECT. 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.
Not any measure, but only such as "are lawful according to the modern law and usages of war."
It is believed that all sections have now been quoted on which General Bell and General Smith
relied to justify their barbarous policy.
If these provisions were all, they would not warrant what was done any more than they warrant
the poisoning of wells or the killing of children, though these measures might make an enemy
"want peace and want it badly."
But there are other sections equally important and controlling, which define "the modern law
and usages of war," as Secretary Root well knew; and some of them were quoted in his letter of
February 17, already cited; and of these the first was:
Rule 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
Here are some others:
SECT. 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.
SECT. 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.
Surely there is no warrant in these for "an intolerable pressure," nor do they empower a
commander upon an assumption of local hostility to kill and burn, far less to give this power to
SECT. 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.
Section 16, of which the Secretary quotes a part, contains also this:
Military necessity does not admit of ... the wanton devastation of a district.
Nor can a commander justify such devastation by suspecting every inhabitant of being hostile at
heart. Otherwise the rule is idle.
SECT. 25. In modern regular wars of 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.
SECT. 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 offence.
Yet such practices must make the inhabitants of a hostile country "want peace, and want it
badly." Can an officer on that account order his men to do these things on plea of military
SECT. 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.
SECT. 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.
No one can pretend, in the face of the facts and figures, that such an emergency existed in the
many cases where no prisoners were taken, or presented itself to Generals Smith and Bell.
SECT. 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.
SECT. 71. Whoever intentionally inflicts additional wounds on an enemy already wholly
disabled, or kills such an enemy, or who orders or encourages soldiers to do so, shall suffer
death, if duly convicted, whether he belongs to the army of the United States or to the enemy.
General Smith did desire "all persons killed who were capable of bearing arms," and he
encouraged his soldiers to do so. He was duly convicted, and suffered -- a reprimand.
SECT. 75. Prisoners of war are subject to confinement or imprisonment such as may be deemed
necessary on account of safety, but they are to be subjected to no other intentional suffering or
indignity. The confinement and mode of treating a prisoner may be varied during his captivity
according to the demands of safety.
SECT. 76. Prisoners of war shall be fed upon plain and wholesome food, whenever practicable,
and treated with humanity.
Can any one read these provisions, and not see that a general sentence to death of "all
able-bodied inhabitants," without any pretence of trial, or a general order to burn and devastate
are forbidden, and that there is no warrant for the policy of reconcentration on suspicion?
Can any one explain why Major Glenn, who practised and justified torture, should be sentenced
to a month's vacation and a fine of $50 under articles like these?
The plea of military necessity is the usual "tyrant's plea," and would justify anything, if the
discretion of the commander is unfettered. It is peculiarly specious in this case.
Can any one pretend that it is more necessary to subjugate the Filipinos than it was to save the
very life of the nation in the Civil War? Was it not vital then that we should know the enemy's
plans? But should we have tolerated for a moment the torture of captured Confederates in order
to discover these plans, or the torture of Virginia farmers in order to find where Mosby's
guerillas kept their arms? The question answers itself, and answers the plea of necessity.
But Secretary Root, with these provisions before him, says that the written orders of Bell and
Smith were all justified.
He does not stop there. He does not even consider them severe.