The Existing Law of War

The full significance of the Instructions for the Government of Armies of the United States becomes apparent only when the Code is considered in light of the paucity of existing legal materials regarding the law of war. Lieber had in 1859, four years before the publication of the Code, secured the support of General Winfield Scott in an effort to have instruction in the law and usages of war included in the curriculum at the United States Military Academy, but nothing came of the

suggestion.^{[1] [2] [3]}

The existing treatises on international law were few. General Halleck had published a text in 1861 entitled International Law, or, Rules regulating the intercourse of states in peace and war. New editions of Kent’s Commentaries⁵³ and Lawrence’s Wheaton⁵⁴ had appeared shortly before the war, and a translation of Vattel^[4] was on the market. But the ordinary Union officer or enlisted man was unlikely to be acquainted with any of these.

Military precedents for comprehensive instructions to the troops regarding their conduct toward the enemy and the enemy’s obligations toward United States forces were not, however, altogether lacking. Credit must be paid to General Winfield Scott’s General Orders No. 20, issued at “Head Quarters of the Army, Tampico” on 19 February 1847, which established “a supplemental code” to the “rules and articles of war” for the punishment of the following offences:

“2. Assassination; murder; malicious stabbing or maiming; rape; malicious assault and battery; robbery; theft; the wanton desecration of churches, cemeteries or other religious edifices and fixtures, and the destruction, except by order of a superior officer, of public or private property... ”

The code applicable to such offences was thus described:

“7. That unwritten code is Martial Law, as an addition to the written military code, prescribed by Congress in the rules and articles of war, and which unwritten code, all armies, in hostile countries, are forced to adopt—not only for their own safety, but for the protection of the unoffending inhabitants and their property, about the theatres of military operations, against injuries contrary to the law of war.”

General Orders No. 20, it may be mentioned in passing, is also of some historical importance for its provisions for trial by military commissions, which, it is true, had existed previously under other names but were first to be used on a large scale during the war with Mexico.

Similar general orders defining offences against the law of war were promulgated during the Civil War. Dr. Lieber’s friend, General Halleck, caused orders of this nature to be issued while he was serving as Commanding General of the Department of the Missouri. General Orders No. 8 and No. 13 of 1861^[5] provide that Confederate officers and men are to be treated as prisoners of war and prescribe their treatment upon capture, including the type oflabour they may be called upon to perform. Capital punishment is provided for rebel non-combatants who maraud and rob or furnish supplies to the Confederate forces and for those persons “found in disguise... or under other false pretenses within our lines” furnishing information to the enemy, who were to be shot as spies. The orders forbid retaliation in kind against such acts of robbery and murder by rebel non-combatants but provide that non-combatant civilians who have been plundered and robbed by the enemy are to be quartered and fed at the expense of those secessionists best able to pay for their support.

But the great majority of military commanders in the field were neither Scotts nor Hallecks.^[6] Some made honest attempts to conform with the existing law of war. General Banks wrote to Lieber in November 1862, offering him encouragement in the preparation of the code and telling him:

“Many points are greatly abused and in some respects our people entertain erroneous views . . . No distinction is made in the public mind between the plunder of people by individual soldiers for their own gain—which is robbery and works a terrible demoralization in all armies—and the confiscation of property by commanding officers for the support of armies.”^[7]

General McClellan spoke out strongly:

“I will . . . forbid all pillaging and stealing, and take the highest Christian ground for the conduct of war... I will not permit this army to degenerate into a mob of thieves.”^[8]

But far more often:

“ ... Often the commander’s will expressed itself in severe and sweeping orders. Summary arrests were made; papers were suppressed; land was condemned for sanitary purposes; railroads were taken over; private houses were commandeered; banks were forbidden to give out Confederate money; ministers were apprehended; church services were closed; public assemblages were suppressed; citizens refusing the oath were threatened with deportation; property was seized for confiscation, and many other extraordinary things were done, more commonly for the preservation of order, but sometimes out of mere caprice or a sense of irritation.”^[9]

General R. H. Milroy in Virginia demanded payment in reparation for robberies perpetrated by guerrillas and threatened to shoot such persons and burn their homes. Halleck hastily acknowledged that the orders had no basis in the laws and usages of war.^[10] Ben Butler’s “woman order” and his treatment of foreign consuls are sufficiently notorious not to warrant description here.^[11] General Pope’s method of dealing with disloyal citizens was to order them to leave the area occupied by his troops and to threaten to hang them if they returned.^[12] On the other hand, the military commander, who, like General McDowell, took a firm stand against pillaging by his forces was subjected to vilification by Army men, by the Radicals, and by members of Congress.^[13] The time was indeed ripe for a firm statement on the law of war.

• [1] Lieber, draft letter, May 1862.
• [2] Kent, Commentaries on American Law (10th Ed., 1860).
• [3] Wheaton, Elements of International Law (6th Ed., Lawrence, 1857).
• [4] Vattel, The Law of Nations, “from the new edition of Joseph Chitty with additional notes andreferences by Edward D. Ingraham” (1858).
• [5] General Orders No. 8, Headquarters, Department of the Missouri, Saint Louis, Mo., 26November 1861; General Orders No. 13, Headquarters, Department of the Missouri, Saint Louis,Mo., 4 December 1861, Official Records, Series 2, Vol. 1, pp. 137, 233.
• [6] On this subject generally, see Freidel, “General Orders 100 and Military Government”, 32Mississippi Valley Historical Review 541 (1945).
• [7] Banks to Lieber, 23 November 1862.
• [8] McClellan, McClellan’s Own Story 463 (1887).
• [9] Randall, Constitutional Problems Under Lincoln, 225—227 (1926).
• [10] Official Records, Series 3, Vol. 2, pp. 943^; Vol. 3, pp. 3—18.
• [11] Randall, op. cit., p. 227.
• [12] Official Records, Series 2, Vol. 4, pp. 828—9.
• [13] Id., Series 1, Vol. 2, pp. 743-4; Vol. 12, Part 1, pp. 53-4, 292-3, 327.