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at all, take up arms and lay them down at intervals, and carry on petty war (guerrilla) chiefly by raids, extortion, destruction, and massacre, and who cannot encumber themselves with many prisoners, and will, therefore, generally give no quarter.
They are peculiarly dangerous, because they easily evade pursuit, and by laying down their arms become insidious enemies; because they cannot otherwise subsist than by rapine, and almost always degenerate into simple robbers or brigands. The Spanish guerrilla bands against Napoleon proved a scourge to their own countrymen, and became efficient for their own cause only in the same degree in which they gradually became disciplined.' The royalists in the north of France, during the first revolution, although setting out with sentiments of loyal devotion to their unfortunate king, soon degenerated into bands of robbers, while many robbers either joined them or assumed the name of royalists. Napoleon states that their brigandage gave much trouble, and obliged the government to resort to the severest measures.
But when guerrilla parties aid the main army of a belligerent, it will be difficult for the captor of guerrilla-men to decide at once whether they are regular partisans, distinctly authorized by their own government; and it would seem that we are borne out by the conduct of the most humane belligerents in recent times, and by many of the modern writers, if the rule be laid down, that guerrilla-men, when captured in fair fight and open warfare, should be treated as the regular partisan is, until special crimes, such as murder, or the killing of prisoners, or the sacking of open places, are proved upon them; leaving the question of selfconstitution unexamined.
The law of war, however, would not extend a similar favor to small bodies of armed country people, near the lines, whose very smallness shows that they must resort to occasional fighting and the occasional assuming of peaceful habits, and to brigandage. The law of war would still less favor them when they trespass with the hostile lines to commit devastation, rapine, or destruction. Every European army has treated such persons, and it seems to me would continue, even in the improved state of the present usages of war, to treat them as brigands, whatever prudential mercy might decide upon in single cases. This latter consideration cannot be discussed here; it does not appertain to the law
It has been stated already, that the armed prowler, the so-called bushwhacker, is a simple assassin, and will thus always be considered by soldier and citizen; and we have likewise seen that the armed bands that rise in a district fairly occupied by military force, or in the rear of an army, are universally considered, if captured, brigands, and not prisoners of war. They unite the fourfold character of the spy, the brigand, the assassin, and the rebel, and cannot_indeed, it must be supposed, will not-expect to be treated as a fair enemy of the regular war. They know what a hazardous career they enter upon when they take up arms, and that, were the case reversed, they would surely not grant the privileges of regular warfare to persons who should thus rise in In conclusion, he says:
I have thus endeavored to ascertain what may be considered the law of war, or fair rules of action toward so-called guerrilla parties. I do not enter upon a consideration of their application to the civil war in which we are engaged, nor of the remarkable claims recently set up by our enemies, demanding us to act according to certain rules which they have signally and officially disregarded towards us. I have simply proposed to myself to find a certain portion of the law of war. The application of the laws and usages of war to wars of insurrection or rebellion is always undefined, and depends upon relaxations of the municipal law, suggested by humanity or necessitated by the numbers engaged in the insurrection. The law of war, as acknowledged between independent belligerents, is, at times, not allowed to interfere with the municipal law of rebellion, or is allowed to do so only very partially, as was the case in Great Britain during the Stuart rebellion, in the middle of last century; at other times, again, measures are adopted in rebellions, by the victorious party or the legitimate government, more lenient even than the international law of war. Neither of these topics can occupy us here, nor does the letter prefixed to this tract contain the request that I should
How far rules which have formed themselves in the course of time between belligerents might be relaxed, with safety, towards the evil-doers in our civil war, or how far such relaxation or mitigation would be likely to produce a beneficial effect upon an enemy who is committing a great and bewildering wrong; seems to have withdrawn himself from the common influences of fairness, sympathy, truth, and logic-how far this ought to be done, at the present moment, must be decided by the executive power, civil and military, or possibly by the legislative power. It is not for me, in this place, to make the inquiry. So much is certain, that no army, no society, engaged in war, any more than a society at peace, can allow unpunished assassination, robbery, and devastation, without the deepest injury to itself and disastrous consequences, which might change the very issue of the war.
I feel safe in saying that the works of text writers on international law may be searched in vain for a more lucid presentation of any of the well-understood usages of war than is shown in Dr. Lieber's useful and interesting and exhaustive description of guerrilla warfare which appears in the second volume of his published works. It is not surprising that he was selected to attempt the hitherto untried task of formulating the rules and usages in accordance with which the operations of the armies of the United States should be conducted.
The propriety of entrusting the task to Doctor Lieber seems to have been fully determined upon in December, 1862, when the selection of a board for that purpose was announced in the following order:
WAR DEPARTMENT, Adjutant General's Office.
WASHINGTON, December 17, 1862. Special Orders, No. 399.
5. Francis Lieber, LL.D.,
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.
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
I that purpose a copy to General Scott, and another to Hon. Horace Binney. For two or three paragraphs you will observe that we should
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 a 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: 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
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 over-tit 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