Hostname: page-component-7c8c6479df-xxrs7 Total loading time: 0 Render date: 2024-03-29T02:29:25.079Z Has data issue: false hasContentIssue false

The first modern codification of the Law of War: Francis Lieber and General Orders No. 100

Published online by Cambridge University Press:  13 January 2010

R. R. Baxter*
Affiliation:
Professor of Law, Harvard Law School

Extract

Mr. Henri Coursier, of the Legal Department of the ICRC, published some time ago a study on “Francis Lieber and the Laws of War” in the International Review, together with a French translation of Orders No. 100 relative to the behaviour of the United States Armies in the field (the famous “Lieber Laws”), the object of which was to have the principles of international law applied during the American civil war (1861–1865). These orders which were immediately recognized and appreciated by the principal lawyers of the time, had a great influence on the future of the law of nations, since it can be said that the Hague Regulations, which sprang from the 1899 and 1907 Peace Conferences, were very largely inspired by them, and several provisions of the Geneva Conventions of August 12, 1949, stem from the same source. It was to Lieber that the President of the United States, Abraham Lincoln, appealed to establish this Code which was promulgated in 1863, thus preceding by one year the First Geneva Convention.

Type
Research Article
Copyright
Copyright © International Committee of the Red Cross 1963

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

* See English Supplement, September 1953.

1 Francis Lieber has been the subject of three biographies: The earliest is Perry, , The Life and Letters of Francis Lieber (1882)Google Scholar, chiefly of value for the copious extracts from Lieber's letters and other writings. Harley, , Francis Lieber; His Life and Political Philosophy (1899)CrossRefGoogle Scholar is short and outdated. The definitive life is Freidel, , Francis Lieber, Nineteenth Century Liberal (1947)Google Scholar. Two articles by Nys, Ernest entitled “Francis Lieber—His Life and His Work” appear in 5 American Journal of International Law 84, 355 (1911). This short account of Lieber's life prior to the Civil War is indebted to these sources.CrossRefGoogle Scholar

2 Lieber, , Political Ethics (18381839).Google Scholar

3 Lieber, , Lectures on the Laws and Usages of War delivered at the Law School of Columbia College, 21 10 1861 to 6 February 1862 (unpublished). The Library of the Johns Hopkins University, Baltimore, Md. [hereafter cited as “Lectures”]. The author is indebted to the Librarian of The Johns Hopkins University for permission to quote from these lectures.Google Scholar

4 2 Political Ethics, p. 630.Google Scholar

5 Ibid., pp. 632–635.

6 Ibid., pp. 635–640.

7 Ibid., pp. 640–643.

8 Ibid., pp. 645–650.

9 Ibid., p. 653.

10 Ibid., p. 654.

11 Ibid., p. 657.

12 Ibid., pp. 658–668.

13 Lieber, , Instructions for the Government of Armies of the United States in the Field (1863), originally published as General Orders No. 100, War Department, Adjutant General's Office, 24 04 1863.Google Scholar

14 Freidel, , Francis Lieber, p. 320.Google Scholar

15 Letter, The Disposal of Prisoners: Would the Exchange of Prisoners Amount to a Partial Acknowledgement of the Insurgents as Belligerents, According to International Law?”, The New York Times, 19 08 1861, p. 3.Google Scholar

16 Editorial Prisoners of War”, The New York Times, 19 08 1861, p. 2 Google Scholar; Editorial “Exchange of Prisoners”, id., 21 October 1861, p. 4.Google Scholar

17 Lieber, to Sumner, , 19 August 1861 Google Scholar; Lieber, to Allibone, , 19 August 1861 Google Scholar, quoted in Freidel, , op. cit., p. 323.Google Scholar

18 Pp. 630–657.

19 These statements were printed, with the permission of the author, by the hearers of his lectures. A copy is to be found in the library of The Johns Hopkins University.

20 Political Ethics, p. 660.Google Scholar

21 Halleck, , International Law; or, Rules Regulating the Intercourse of States in Peace and War (1861).Google Scholar

22 Lieber, to Halleck, , 30 January 1862 Google Scholar; Halleck, to Lieber, , 3 and 11 February 1862.Google Scholar

23 Lieber, , “The Genesis of this Code” in Manuscript notebook in the Office of the Judge Advocate General of the Army, Washington, D.C. The author desires to express his appreciation to Major General Decker, Charles L., The Judge Advocate General of the Army, for permission to quote from this notebook.Google Scholar

24 Freidel, , Francis Lieber, pp. 323, 327328.Google Scholar

25 “The Duty of Provisional Governors: Letter from Professor Lieber to Secretary Bates”, letter to The Evening Post, New York City, 17 06 1862.Google Scholar

26 Lieber, Manuscript notebook.

27 Freidel, , Francis Lieber, p. 321.Google Scholar

28 War of the Rebellion: A Compilation of the Official Records of the Union and Confederate Armies [hereafter cited as Official Records], Series 1, Vol. 15, 16 and 17, passim.

29 Lieber, to Halleck, , 1 August 1862.Google Scholar

30 Halleck, to Lieber, , 6 August 1862.Google Scholar

31 Lieber, , Guerrilla Parties Considered with Reference to the Laws and Usages of War (1862)Google Scholar; see Dyer, , “Francis Lieber and the American Civil War”, 2 Huntington Library Quarterly 449 (1939).CrossRefGoogle Scholar

32 Lieber, , Guerrilla Parties, p. 9.Google Scholar

33 Lieber, to Halleck, , 13 November 1862 Google Scholar, quoted in Freidel, , op. cit., p. 331.Google Scholar

34 Halleck, to Lieber, , 15, 23, 25 November 1862.Google Scholar

35 Lieber, Manuscript notebook.

36 Special Orders No. 399, War Department, Adjutant General's Office, 17 December 1862.

37 Lieber, Manuscript notebook.

38 Freidel, , Francis Lieber, p. 333.Google Scholar

39 Hitchcock, , printed circular letter, 22 December 1862.Google Scholar

40 Freidel, , Francis Lieber, p. 333.Google Scholar

41 In the Henry E. Huntington Library, San Marino, California ( Dyer, , op. cit., p. 455).Google Scholar

42 “A Code for the Government of Armies in the Field as Authorized by the Laws and Usages of War on Land, Printed as manuscript for the Board appointed by the Secretary of War [Special Orders, No. 399]. ‘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’” (February 1863).

43 Lieber, to Halleck, , 20 February 1863.Google Scholar

44 Ibid.

45 Dyer, , op. cit., p. 455.Google Scholar

46 Lieber, Manuscript notebook.

47 Ibid.

48 Ibid.

49 Digest of Opinions of The Judge Advocates General of the Army, 1912, p. 276 (1917).Google Scholar

50 Lieber, Manuscript notebook.

51 Ibid.

52 Lieber, , draft letter, May 1862.Google Scholar

53 Kent, , Commentaries on American Law (10th Ed., 1860).Google Scholar

54 Wheaton, , Elements of International Law (6th Ed., Lawrence, 1857).Google Scholar

55 Vattel, , The Law of Nations, “from the new edition of Joseph Chitty with additional notes and references by Edward D. Ingraham” (1858).Google Scholar

56 General Orders No. 8, Headquarters, Department of the Missouri, Saint Louis, Mo., 26 November 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.Google Scholar

57 On this subject generally, see Freidel, , “General Orders 100 and Military Government”, 32 Mississippi Valley Historical Review 541 (1945).CrossRefGoogle Scholar

58 Banks, to Lieber, , 23 November 1862.Google Scholar

59 McClellan, , McClellan's Own Story 463 (1887).Google Scholar

60 Randall, , Constitutional Problems Under Lincoln, 225227 (1926).Google Scholar

61 Official Records, Series 3, Vol. 2, pp. 943–4; Vol. 3, pp. 318.Google Scholar

62 Randall, , op. cit., p. 227.Google Scholar

63 Official Records, Series 2, Vol. 4, pp. 828–9.Google Scholar

64 Id., Series 1, Vol. 2, pp. 743–4; Vol. 12, Part 1, pp. 53–4, 292–3, 327.Google Scholar