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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 guerrilla party means an irregular band of armed men, carrying on an irregular war, not being able, according to their character as a guerrilla party, 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. Qther 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, x 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. y Others, again, connect the ideas of general and heinous criminality, of
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
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 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 of war.
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 their rear.
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 do so. 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: