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effect that as mitigations of the rules of war "received the sanction of time,” they were “raised from the rank of mere usage” and became "part of the law of nations.''
It would not be difficult to cite other illustrations of the recent development of international rules of conduct by the gradual transformation of opinion and practice. But the past century has been specially distinguished by the modification and improvement of international law by what may be called acts of international legislation. By the congress of Vienna, in 1815, rules wereadopted, the effect of which has been worldwide, with regard to the navigation of international rivers. By the same congress and the congress of Aix-la-Chapelle, the grades of diplomatic representation were established. Yet more remarkable as an act of legislative aspect was the declaration on maritime law made by the congress of Paris of 1856. Three out of the four rules embraced in the declaration are now universally acknowledged as rules of international, either by virtue of adhesion to the declaration or by independent recognition and acceptance. Of the congress at the Hague, in 1899, it is unnecessary to speak. It forms an epoch in the history of the law of nations.
What has been said as to the development of international law, denotes the progress at the same time the defects of the system. Its progress has been great; but, viewed as a body of law, its chief defect is the want of some form of international organization by which a common interpretation and common enforcement of its mandates may be secured. To a certain extent its rules are at present administered by the courts of each country, but the efficacy of this judicial administration is qualified by two facts: first, that much of what we call international law is of political rather than judicial cognizance and cannot be dealt with by the courts; and secondly, that, if the court of a particular country departs from the general opinion, there is no remedy but a diplomatic claim, enforceable in the last analysis by war.
Here, then, lies the work of the future, in the attainment of some method, by some form of organization, for the common interpretation and enforcement of international law, not indeed without the use or provision for the use of force, but without creating the legal condition of things called a state of war.
JOHN BASSETT MOORE.
DOCTOR FRANCIS LIEBER'S INSTRUCTIONS FOR THE
GOVERNMENT OF ARMIES IN THE FIELD:
International law owes much to American judges and to American jurists. The list of those who have contributed to its advancement is not short and includes the names of Marshall, Story and Field, Kent, Wheaton, with his able commentators, Dana and Lawrence, Halleck and Lieber and, among recent writers, Taylor, Moore and Snow. Although his name is not connected with a general treatise on the subject of public international law, it may be doubted whether any of his fellow-workers in that field have rendered a more important service to humanity and to international good neighborhood, than has Dr. Francis Lieber in his memorable "Instructions for the Government of the Armies of the United States in the Field."
The facts of his life and public career are too well known to require presentation. His patriotic service in the Colberg Regiment under Blücher during the campaign which completed the overthrow of the Emperor Napoleon, his serious wounding at Namur in the pursuit of the remnant of the imperial armies in their flight from Waterloo, his early identification with the cause of German liberalism, his brief service in the war for Greek independence, were all included between the years 1815 and 1826, when he found asylum in England as a political refugee. After a brief residence in London, Dr. Lieber crossed to the United States and established himself in Boston and subsequently in Columbia, South Carolina, where, in the congenial field of activity which was afforded him in a professorship in the University of South Carolina, the greater portion of his useful life was passed.
His devotion to the Union cause led to the resignation of his professorship, but placed at the service of President Lincoln a trained
* The full text of the Instructions will be found in vol. ii of Lieber's Miscellaneous Writings-Lippincott, Philadelphia, 1881; and in General Orders No. 100, Adjutant General's Office of 1863.
intelligence of which the government in Washington was not slow in making use.
It has been truly said of England and the United States that they were warlike but not military nations, and it is not surprising that the outbreak of the great Civil War should have found the armies of both contestants but poorly equipped in the technical knowledge of the rights and duties of belligerents which were so essential to a humane and vigorous prosecution of the war. As the newly raised regiments which had been concentrated in the vicinity of Washington crossed the Potomac and established a military occupation in the territory of Virginia, many acts of vandalism were committed and such of their commanders as were versed in the usages of war found abundant opportunity for the application of their knowledge to the distressing conditions which confronted them in the steadily broadening zone of military operations.
An incident which occurred as the Virginia campaign of 1862 was drawing to a close, illustrates the want of training on the part of officers who, for a year or more, had exercised important regimental commands in the theatre of military activity in Northern Virginia. A colonel of volunteers who had been mortally wounded in one of the engagements beyond Centerville, an officer of gallantry and of unusual capacity as a regimental commander, said to a comrade: "I die a victim to Pope's incapacity and McDowell's treason.” General McDowell, a strict disciplinarian and an officer of proved loyalty and devotion, who commanded the first troops who entered Virginia territory in 1682, had given strict orders forbidding the taking of private property in the enemy's country; he had also forbidden indiscriminate firing upon the outposts of the enemy. He had given reasons for his action in each case, and had simply undertaken to enforce some of the fundamental rules of war, but had only succeeded in impressing an intelligent subordinate, unskilled in the usages of war, that in protecting helpless non-combatants, and in forbidding the unnecessary killing of outposts that he had been guilty of treasonable acts.
The assignment of Major General Halleck, himself a profound student of international law, to the chief command of the Union Army in 1862, led to a more general and regular enforcement of the laws and usages of war than had been the case prior to his accession to command. The engrossing character of his duties as the commander-in-chief of the armies in the field, however, prevented him from giving his personal attention to the preparation of instructions regulating the conduct of military operations, and the government of the considerable areas of territory which had come into federal occupation as a consequence of the military operations of the advancing armies, and in the emergency, Doctor Lieber's name was fortunately suggested as one well fitted by his training and attainments to serve the government in the preparation of a compilation of rules and usages of war.
His peculiar fitness for the task was well known to President Lincoln and to those to whom he was accustomed to look for advice in perplexing questions of this kind, as he had prepared, at the instance of the government, in the summer of 1862, a report on the general subject of guerrilla and partisan operations. In this paper the subject is so clearly and exhaustively treated as to warrant a brief citation.
In speaking of the operations of bodies of partisans in previous wars,
The position of armed parties loosely attached to the main body of the army, or altogether unconnected with it, has rarely been taken up by writers on the law of war. The term guerrilla is often inaccurately used, and its application has been particularly confused at the present time. From these circumstances arises much of the difficulty which presents itself to the publicist and martial jurist in treating of guerrilla parties. (Lieber's Miscellaneous Writings, vol. ii, p. 277.)
He then goes on to say:
The term guerrilla is the diminutive of the Spanish word guerra, war, and means petty war, that is, war carried on by detached parties; generally in the mountains. It means, further, the party of men united under one chief engaged in petty war, which, in the eastern portion of Europe and the whole Levant, is called a capitanery, a band under one capitano. The term guerrilla, however, is not applied in Spain to a single man of the party; such a person is called guerrillero, or more frequently partida, which means partisan. Thus, Napier, in speaking of the guerrilla, in his History of the Peninsular War, uses, with rare exception, the term partidas for the chiefs and men engaged in the petty war against the French. It is worthy of notice that the dictionary of the Spanish academy gives, as the first meaning of the word guerrilla: “A party of light troops for reconnoissance, and opening the first skirmishes." *** What, then, do we in the present time understand by the word guerrilla? In order to ascertain the law or to settle it according to elements already existing, it will be necessary ultimately to give a distinct definition; but it may be stated here that whatever may be our final definition,
it is universally understood in this country, at the present time, that a Certia party means an irregular band of armed men, carrying on an irregular war, not being able, according to their character as a guerrilla pary, to carry on what the law terms a regular war. The irregularity of the guerrilla party consists in its origin, for it is either self-constituted or constituted by the call of a single individual, not according to the general law of levy, conscription, or volunteering; it consists in its disconnection with the army, as to its pay, provision, and movements, and it is irregular as to the permanency of the band, which may be dismissed and called again together at any time. These are, I believe, constituent ideas of the term guerrilla as now used. Other ideas are associated with the term, differently by different persons. Thus, many persons associate the idea of pillage with the guerrilla band, because, not being connected with the regular army, the men cannot provide for themselves, except by pillage, even in their own country; acts of violence with which the Spanish guerrilleros sorely afflicted their own countrymen in the Peninsular War. Others connect with it the idea of intentional destruction for the sake of destruction, because the guerrilla chief cannot aim at any strategic advantages or any regular fruits of victory. Others, again, associate with it the idea of the danger with which the spy surrounds us, because, he that today passes you in the garb and mien of a peaceful citizen, may tomorrow, as a guerrilla-man, fire your house or murder you from behind the hedge. Others connect with the guerrillero the idea of necessitated murder, because guerrilla bands cannot encumber themselves with prisoners of war; they have, therefore, frequently, perhaps generally, killed their prisoners, and of course have been killed in turn when made prisoners, thus introducing a system of barbarity which becomes intenser in its demoralization as it spreads and is prolonged. Others, again, connect the ideas of general and heinous criminality, robbery and lust with the term, because the organization of the party being but slight and the leader utterly dependent upon the band, little discipline can be enforced, and where no discipline is enforced in war a state of things results which resembles far more the wars recorded in Froissart or Comines, or the Thirty Years' War, and the Religious War in France, than the regular wars of modern times. And such a state of things results speedily, too; for all growth, progress, and rearing, moral or material, are slow; all destruction, relapse, and degeneracy fearfully rapid. It requires the power of the Almighty and a whole century to grow an oak tree; but only a pair of arms, an axe, and an hour or two to cut it down.
History confirms these associations, but the law of war as well as the law of peace has treated many of these and kindred subjects-acts justifiable, offensive, or criminal-under acknowledged terms, namely: the freebooter, the marauder, the brigand, the partisan, the free-corps, the spy, the rebel, the conspirator, the robber, and especially the highway robber, the rising en masse, or the arming of peasants. *
It is different, if we understand by guerrilla parties, self-constituted sets of armed men, in times of war, who form no integrant part of the organized army, do not stand on the regular pay-roll of the army, or are not paid