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WAR DEPARTMENT, Adjutant General's Office.

WASHINGTON, December 17, 1862. Special Orders, No. 399.

EXTRACT.

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5. Francis Lieber, LL.D.,
Major General E. A. Hitchcock, U. S. Volunteers,
Major General G. Cadwalader, U. S. Volunteers,
Major General George L. Hartsuff, U. S. Volunteers, and

Brigadier General J. H. Martindale, U. S. Volunteers, will constitute a Board to propose amendments or changes in the Rules and Articles of War, and a Code of Regulations for the government of armies in the field, as authorized by the laws and usages of war.

The Board will meet in the City of Washington at such times as the members may agree upon.

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By order of the Secretary of War,

E. D. TOWNSEND, Assistant Adjutant General.

I have been unable to find that the general officers who were associated with Doctor Lieber were actively employed in the work of verification or compilation, though the rough drafts of his articles were doubtless submitted to them as they were tentatively completed; it is certain, however, that their expert advice in matters connected with the conduct of military operations was gladly received and gratefully acknowledged; he seems also to have been in close contact with General Halleck during the entire period. The order of appointment contemplated a revision of the articles of war, a portion of the statute law of the United States, and it is highly probable that the military members of the commission were engaged in a study of that portion of the work, leaving the broad field of the rules and usages of war to their competent chairman. That the work was largely, if not chiefly prepared by Doctor Lieber, is indicated by his letter to General Halleck, in which, writing from New York under date of February 20, 1863, he says: MY DEAR GENERAL:

Here is the projet of the code I was charged with drawing up. I am going to send fifty copies to General Hitchcock for distribution, and I earnestly ask for suggestions and amendments. I am going to send for that purpose a copy to General Scott, and another to Hon. Horace Binney. For two or three paragraphs you will observe that we should

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want the assistance of Congress. That is now too late; but we suggest to you to decide with the Secretary of War whether it would be advisable and feasible to send the code even now, and as it is, to our generals, to be & guide on some difficult and important points. I observe from some orders of General Rosecrans that he has used my pamphlet on “Guerrilla Warfare," unless there be a remarkable spontaneous coincidence.

* * I do not believe that it will be possible to change for the present war, or at least immediately, the usage which has grown up regarding paroling privates, but you will agree with me that the law, as I have laid it down, is the law and usage. As paroling is now handled by us, it amounts to a premium on cowardice, e.g., in the affair of Harper's Ferry. * * * You are one of those from whom I most desire suggestions, because you will read the code as lawyer and as commander. Even your general opinion of the whole is important to me. I have earnestly endeavored to treat of these grave topics conscientiously and comprehensively; and you, well-read in the literature of this branch of international law, know that nothing of the kind exists in any language. I had no guide, no ground-work, no text-book. I can assure you, as a friend, that no counselor of Justinian sat down to his task of the Digest with a deeper feeling of the gravity of his labor, than filled my breast in the laying down for the first time such a code, where nearly everything was floating. Usage, history, reason, and conscientiousness, a sincere love of truth, justice, and civilization have been my guides; but of course the whole must be still very imperfect. * * * Ought I to add anything on a belligerent's using, in battle, the colors and uniform of his opponent? I believe when this has been done no quarter has been given. I have said nothing on rebellion and invasion of our country with reference to the treatment of our own citizens by the commanding general. I have three paragraphs on this subject, but it does not fall within the limits, as indicated in the special order appointing our board. *

The code was submitted to General Halleck and was approved by him, with one or two unimportant changes, and was formally adopted by the President and published to the army in General Orders No. 100 of 1863. In acknowledging the receipt of a copy of his completed work, Doctor Lieber writes to General Halleck on May 20, 1863:

The gen

MY DEAR GENERAL:

I have the copy of General Orders 100 which you sent me. erals of the board have added some valuable parts; but there have also been a few things omitted, which I regret. As the order now stands, I think that No. 100 will do honor to our country. It will be adopted as basis for similar works by the English, French and Germans.

It is a contribution by the United States to the stock of common civilization. I feel almost sad in closing this business. Let me hope it will not put a stop to our correspondence. I regret that your name is not visibly connected with this code. You do not regret it, because you are void of ambition, to a faulty degree, as it seems to me.

* * I believe it is now

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time for you to issue a strong order, directing attention to those paragraphs in the code which prohibit devastation, demolition of private property, etc. I know by letters from the West and the South, written by men on our side, that the wanton destruction of property by our men is alarming. It does incalculable injury. It demoralizes our troops; it annihilates wealth irrecoverably, and makes a return to a state of peace more and more difficult. Your order, though impressive and even sharp, might be written with reference to the code, and pointing out the disastrous consequences to reckless devastation, in such a manner as not to furnish our reckless enemy with new arguments for his savagery.

That there was no remission in Doctor Lieber's interest in the great work which he had carried to successful completion, is indicated by a subsequent letter to General Halleck on the subject of certain retaliatory measures that had been ordered by General Burnside in the field of activity to which he had been assigned in East Tennessee: * *

* Is the threat of General Burnside true, that he would hang ten Confederate officers for every Union officer hung by the Confederates? Whether true or not, you are aware that this is the spirit which generally shows itself when a barbarous outrage is committed, but which it is very necessary promptly to stop. The wanton insolence of our enemy has been growing so fast, and is so provoking, that I am plainly and simply for quick and stern retaliation; but in retaliation it is necessary strictly to adhere to sections twenty-seven and twenty-eight of General Order 100, to the elementary principle which prevails all the world overtit for tat, or eye for eye—and not to adopt ten eyes for one eye. If one belligerent hangs ten men for one, the other will hang ten times ten for the ten; and what a dreadful geometrical progression of skulls and crossbones we should have. * * * You will decide what the general-in-chief has to do in this matter. Some distinct expression of the essential character of retaliation, whether by general order or by a proclamation of the President (intended for our side as well as for the other), or by a general letter of yours addressed to all generals, I do not presume to decide. * * President King read yesterday to me a letter from Mr. Lawrence, in which he informs him that Brockhaus in Leipzig has made him a very liberal offer to publish in Germany a French translation of Lawrence's new edition of Wheaton. So we shall have a European edition of this secessionized American Law of Nations. It worries me. These two large volumes in French will be the universal authority in Europe concerning us.

A first-rate work should be written as an antidote; but it would require a long time of absolute leisure for a great jurist-as Halleck, if he had not the sword in his hand, taking Heffter as his basis, as Lawrence takes Wheaton.

The rules so prepared and adapted were distributed to the armies in the field and were rigorously and intelligently enforced during the remainder of the war. After actual hostilities had ceased and occupy

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ing governments had been established in the states which had participated in the rebellion, the requirements of the order constituted a safe and reliable guide for the administration of the governments established by the United States in the occupied territory. Indeed, Congress, in what were known as the "Reconstruction Acts," vested the execution of its legislative policy in that regard in the military governments so established, and charged their military commanders with the execution of the successive steps prescribed by law as a condition precedent to the reëstablishment of the seceded states in their constitutional relations with the Federal government. Doctor Lieber's rules were also adopted by the German government with a view to regulating the conduct of its armies in the field during the war of 1870; and it is said to have worked so successfully that but a single case arose, during the prosecution of the war, to which its principles did not apply.

But the usefulness of Doctor Lieber's work did not end here. In 1874, an international conference was invited by the Emperor Alexander II. to meet at Brussels for the purpose of discussing the practicability of framing an acceptable code or compilation of the laws of war on land. Professor Bluntschli, whose efforts to codify the law of nations are too well known to require particular mention, was charged, as chairman of the committee on codification, with the preparation of a draft of the proposed compilation of the recognized rules and usages of war. In the performance of this duty, his chief reliance was the admirable codification which had been prepared by Doctor Lieber for the use of the government of the United States, so that the Brussels code bears in every article a distinct impression of the Instructions for the Government of Armies, prepared eleven years before, by his lifelong friend and co-worker.

The character and importance of Doctor Lieber's work are well summarized by his old friend, Professor Bluntschli of Heidelberg, in the brief but appreciative biographical sketch which appears as a preface to the second volume of his Miscellaneous Writings:

The Instructions for the Government of Armies of the United States in the Field were drawn up by Professor Francis Lieber at the instance of President Lincoln, and formed the first codification of International Articles of War (Kriegsvölkerrecht). This was a deed of great moment in the history of international law and of civilization. Throughout this work, also, we see the stamp of Lieber's peculiar genius. His legal injunctions rest upon the foundation of moral precepts. The former are not always sharply distinguished from moral injunctions, but nevertheless, through a union with the same, are ennobled and exalted. Everywhere reigns in this body of law the spirit of humanity, which spirit recognizes as fellow-beings, with lawful rights, our very enemies, and which forbids our visiting upon them unnecessary injury, cruelty, or destruction. But at the same time, our legislator remains fully aware that, in time of war, it is absolutely necessary to provide for the safety of armies and for the successful conduct of a campaign; that, to those engaged in it, the harshest measures and most reckless exactions cannot be denied, and that tender-hearted sentimentality is here all the more out of place, because the greater the energy employed in carrying on the war, the sooner will it be brought to an end, and the normal condition of peace restored.

These instructions prepared by Lieber, prompted me to draw up, after his model, first, the laws of war, and then, in general, the law of nations, in the form of a code, or law book, which should express the present state of the legal consciousness of civilized peoples. Lieber, in his correspondence with me, had strongly urged that I should do this, and he lent me continual encouragement.

The part played by the Brussels code in the preparation of the rules of the Hague conference for the conduct of war on land is very clearly set forth in the explanatory remark of M. de Martens, the Russian representative at the conference, at the opening of the sessions, to the committee charged with the preparation of the rules concerning the laws and usages of war on land:

The object of the imperial government has steadily been the same, namely, to see that the declaration of Brussels, revised so far as this conference may deen it necessary, should form the solid basis for the instructions which the governments should hereafter, in case of war, issue to their armies on land. Without doubt, to the end that this basis should be firmly established, it is necessary to have a treaty engagement similar to that of the Declaration of St. Petersburg in 1868. It will be necessary that in a solemn article the signatory powers, who signify their adherence, should declare that they are in accord on the subject of uniform rules, which should be embodied in these instructions. This is the only manner of obtaining an obligation binding upon the signatory powers. It will be well understood that the Declaration of Brussels shall have no obligatory force except for the signatory states which declare their adherence. (Holls: The Peace Conference at the Hague, p. 135.)

Although the subject matter of Doctor Lieber's rules has constituted the substantial framework of the several codifications that have been attempted, from time to time, since their adoption in 1863, they

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