Francis Lieber’s Code and the Law of War

Source: Lieber’s Code and the Law of War, by Richard Shelly Hartigan

Source: Lieber's Code and the Law of War, by Richard Shelly Hartigan, from a facsimile of the 1983 edition published by Precedent Publishing, Inc., Chicago, as produced in 1995 by The Legal Classics Library, Division of Gryphon Editions, New York. The essay entitled "Guerilla Parties Considered with Reference to the Laws and Usages of War" was written in 1862. "Instructions for the Government of Armies of the United States in the Field," which became famously known as General Orders No. 100, was written in 1863.

Related Link: Leiber's Code from Avalon

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 ax, and an hour or two to cut it down. P. 34, from "Guerrilla Parties Considered with Reference to the Laws and Usages of War" by Francis Lieber.

The Following Numbers are from General Orders, number 100:

13. Military jurisdiction is of two kinds: First, that which is conferred and defined by statute; second, that which is derived from the common law of war ....
14. Military necessity, as understood by modern civilized nations, consists in the necessity of those measures which are indispensable for securing the ends of the war, and which are lawful according to the modern law and usages of war.
16. Military necessity does not admit of cruelty - that is, the infliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor of torture to extort confessions. It does not admit of the use of poison in any way, nor of the wanton devastation of a district. It admits of deception, but disclaims acts of perfidy; and, in general, military necessity does not include any act of hostility which makes the return to peace unnecessarily difficult.
22. Nevertheless, as civilization has advanced during the last centuries, so has likewise steadily advanced, especially in war on land, the distinction between the private individual belonging to a hostile country and the hostile country itself, with its men in arms. The principle has been more and more acknowledged that the unarmed citizen is to be spared in person, property, and honor as much as the exigencies of war will admit.
23. Private citizens are no longer murdered, enslaved, or carried off to distant parts, and the inoffensive individual is as little disturbed in his private relations as the commander of the hostile troops can afford to grant in the overruling demands of a vigorous war.
29. Modern times are distinguished from earlier ages by the existence at one and the same time of many nations and great governments related to one another in close intercourse. -- Peace is their normal condition; war is the exception. The ultimate object of all modern war is a renewed state of peace. -- The more vigorously wars are pursued the better it is for humanity. Sharp wars are brief.
68. Modern wars are not internecine wars, in which the killing of the enemy is the object. The destruction of the enemy in modern war, and, indeed, modern war itself, are means to obtain that object of the belligerent which lies beyond the war. -- Unnecessary or revengeful destruction of life is not lawful.
70. The use of poison in any manner, be it to poison wells, or food, or arms, is wholly excluded from modern warfare. He that uses it puts himself out of the pale of the law and usages of war.

Posted: to Legal History and Philosophy of Law on Tue, Jul 9, 2019
Updated: Fri, Jul 12, 2019