General Order Number 20

During the Mexican War, General Winfield Scott, who was commanding the American invasion that would take Mexico City and win the War, was concerned about crimes committed by American troops, especially volunteers, against the Mexican civilian population.  (The crimes were often precipitated by the anger of American troops at sickening mutilation and murder of Americans captured by Mexican guerillas.)  Up to this time, American soldiers accused of crimes against civilians had simply been tried in American civilian courts.  This was clearly not an option available during a war waged on foreign soil.  Scott hit upon the idea of trying troops before military commissions, and he embodied this idea in Order Number 20.  Here is the text of the order:

TAMPICO FEBRUARY 19, 1847 General orders. – Number 20.

1st It can be feared that many and grave crimes not foreseen in the act of Congress establishing the rules and articles for the Government of the United States Army, approved on April 10, 1806, can be committed by individuals of those armies or against them in Mexico during the war between the two republics. Those atrocious crimes that, if committed in the United States or in its organized territories, would be precisely judged and severely punished by the Nation’s ordinary or civil courts, are mentioned here.

2.nd Murder, premeditated murder, injuries or mutilation, rape, assaults and malicious beatings; robbery, larceny, desecration of Churches, cemeteries or houses, and religious buildings; and the destruction of public or private property that was not ordered by a superior officer, are crimes of this nature.

3rd Good service, the honor of the United States, and the interests of humanity imperatively demand that all the above-mentioned crimes be punished severely.

4th Yet, the written code, commonly called the rules and articles of war, as mentioned earlier, does not prescribe the punishment for any of these crimes, even when they are committed by individuals in the army against the person or property of other individuals in the army, except in the limited case mentioned in article 9, nor does it contain any stipulations in the case of similar offenses committed by those same individuals against the persons and properties of an enemy country, if we exclude the very partial articles 51, 52, and 55; and the mentioned code is absolutely silent regarding offenses committed by individuals of the enemy country against individuals in the army or their properties, contrary to the laws of war.

5th It is evident that article 99, independent of all reference to the restriction in article 87, is null in respect to any of those grave crimes.

6th Consequently, all the offenses enumerated above in the 2nd paragraph, which can be committed in another country, in the army, or by the army or against the army, absolutely need a supplemental code.

7th This unwritten code is Martial Law, an addition to the written military code, which Congress ordered to be observed in the rules and articles of war; it is an unwritten code that all armies are obligated to follow in enemy countries, not only for their own safety, but also to protect the inoffensive inhabitants and their properties within the theater of military operations, from offenses committed against the laws of war.

8th Martial law has been declared because of this supreme necessity; it is a supplemental code for all camps, military points, and hospitals that are occupied by whatever part of the United States forces in Mexico and by all the columns, escorts, convoys, guards, and detachments of the expressed forces, while they are engaged in continuing the present war in and against the aforesaid Republic.

9th Consequently, any crime enumerated in paragraph No. 2 that is committed: first, by any Mexican inhabitant, denizen, or traveler against the person or property of any individual adherent to or dependant on the United States forces; 2nd By any individual adherent to or dependent on said forces against the person or property of any Mexican inhabitant, denizen, or traveler; 3rd By any individual adherent to or dependant on said forces against the person or property of any other individual adherent to or dependent on said forces, will be punctually judged and punished according to the expressed supplemental code.

10th With this objective, all the delinquents in the above-mentioned cases are ordered to be promptly apprehended, imprisoned, and denounced in order to be judged by a military commission that will be named to this effect.

11th All military commissions, due to this order, will be arranged, governed, and limited according to articles 65, 66, and 97 in the expressed rules and articles of war, and procedures of these commissions will be completely recorded in writing, reviewed and examined, rejected or approved, and all sentences will be executed in accordance with the court-martial, thereby preventing any military commission from judging causes that solely pertain to the court-martial; and also preventing any individual of any class from being sentenced by the court-martial to a punishment that does not fit the nature and grade of the offense, as proved by the evidence, and ensuring that it conforms to the established punishments for similar cases, in any of the United States of America.

12th This order will be read in front of every company of the United States forces that are serving in Mexico or about to enter the theater of said war.

Mandated by the Major General. N.L. Scott. A.A.A.G.Acting Assistant Adjutant General

Scott diligently enforced order number 20, trying about 300 troops before military commissions during the occupation of Mexico.  An interesting sequel to this use of military commissions was rendered by the US Supreme Court  in the case of Jecker v. Montgomery in 1851, the Court  ruling that:

All captures jure belli are for the benefit of the sovereign under whose authority they are made, and the validity of the seizure and the question of prize or no prize can be determined in his own courts only, upon which he has conferred jurisdiction to try the question.  And under the Constitution of the United States, the judicial power of the general government is vested in one supreme court and in such inferior courts as Congress shall from time to time ordain and establish.  Every court of the United States therefore must derive its jurisdiction and judicial authority from the Constitution or the laws of the United States.  And neither the President nor any military officer can establish a court in a conquered country and authorize it to decide upon the rights of the United States or of individuals in prize cases, nor to administer the laws of nations.

The courts established or sanctioned in Mexico during the war by the commanders of the American forces were nothing more than the agents of the military power, to assist it in preserving order in the conquered territory and to protect the inhabitants in their persons and property while it was occupied by the American arms.  They were subject to the military power and their decisions under its control whenever the commanding officer thought proper to interfere.  They were not courts of the United States, and had no right to adjudicate upon a question of prize or no prize.  And the sentence of condemnation in the court at Monterey is a nullity, and can have no effect upon the rights of any party.


Published in: on March 16, 2012 at 5:30 am  Comments Off on General Order Number 20  
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