The Genesis of the Code
The time had now come for Lieber to propose the project which was nearest to his heart—a series of rules of warfare for dissemination to the armies of the United States. He suggested the idea to General Halleck only a few months after the publication of the Guerrilla Parties, writing to him that:
“Ever since the beginning of our present War, it has appeared clearer and clearer to me, that the President ought to issue a set of rules and definitions providing for the most urgent cases, occurring under the Laws and Usages of War, and on which our Articles of War are silent.”
The President should appoint a committee, with Halleck as chairman, to define offences and fix penalties. If the President did not have the power to prescribe such rules, Congress might enact them. Halleck at first replied, quite truthfully, that “there was really no time for it,” but Lieber began a sample chapter on paroling. Early in December Lieber was unexpectedly summoned to Washington. Special orders were issued by the War Department on 17 December appointing 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 other members of the board beside “Francis Lieber, LL.D.” were General Hitchcock, the president; General Hartsuff, a field commander; General Martindale, a lawyer and military governor of the District of Columbia; and General Cadwalader, a lawyer. Martindale soon retired.
Lieber approached his task with enthusiasm. He deluged the other members of the board with proposals for the reorganization of the Army and suggestions concerning punishments, military distinctions, improved uniforms, the creation of new ranks, promotion on the basis of seniority, a new militia law, and the revision of the curriculum at the Military Academy. Nothing ever came of the paper he prepared on these subjects. The Board did, however, honour his natural request that he be permitted to draw up the “Code of Regulations.” In the meanwhile the Board had sent out a form letter to officers asking for their suggestions, but there is no indication that comments in any appreciable number were furnished, and if so, whether they proved to be of assistance. For its part, the Board devoted itself to the revision of the Articles of War and was content to leave the problems of the law of war to the civilian member of the Board.
Lieber returned to New York and prepared the first draft of the “Code,” as he referred to it, during the early weeks of 1863. A first draft in the form of a very rough manuscript on odds and ends of paper is still in existence. By February Lieber had prepared a draft of the code which was printed “as manuscript” for the Board. The draft is considerably shorter than the Instructions as finally approved—97 sections as compared with the final 157—but, making allowances for occasional transpositions, generally follows the same pattern as the completed work. However, the section on “Insurrection-Civil War-Rebellion” had not yet been added to the draft. Lieber noted that he had said nothing on rebellion, because he felt that it did not “... fall within the limits, as indicated in the special order appointing our board.”
Fifty copies ofthe printed draft were given to General Hitchcock and copies were furnished General Winfield Scott, Horace Binney, Attorney General Bates, and, of course, General Halleck, to whom the author wrote: “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 this kind exists in any language. I had no guide, no groundwork, no text-book. I can assure you, as a friend, that no counsellor 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
Of the recipients of the draft, only General Halleck found time to comment at any length.
Dr. Lieber was apparently dissatisfied with this draft and immediately began to prepare another, incorporating changes which had come to his own mind and about half of the suggestions made by General Halleck on his copy of the printed draft.45 At the latter’s suggestion, he added a lengthy section on rebellion and insurrection although he “disrelished it”,46 probably because he did not wish the “Code” to be capable of the construction that it was applicable only to civil war and not to wars between states. The enlarged manuscript was sent to Washington accompanied by a request that it be read by the members of the Board. The part played by the military members is best described in Lieber’s own words:
“At the last meeting in Washington the whole was discussed. General Hitchcock did most of the work done by the generals. Genl Hartsuff did a good deal. Transpositions were made, as well as curtailments, improvements, and a very few additions; but some things were left out which I regret, and two weak passages slipt in. They are not mine.”47
The board ruthlessly cut down the final section on rebellion and insurrection to one quarter of its former length. It was also decided that what Lieber hoped would constitute a “Code” should be designated as “Instructions.”
The author of the Instructions later wrote: “The heading as it now stands is wrong. It does not indicate in the least that this set of rules apply to the intercourse of hostile enemies exclusively. I struggled hard to keep as heading the words of the original order, by which the Board was appointed, namely a Code of Regulations for the Government of Armies in the Field, as authorized by the laws and usages of war. [Special Orders No. 399. Series of 1862]. I did not succeed. It was probably believed that the word Code indicated something which the Pres. of U.S. has no right to issue—something which requires the assistance of Congress—an enactment. This, indeed, was first looked for by Genl Halleck and by myself. But Congress adjourned, and we could not wait; nor did the generals of the Board want the word Code.”
In the meantime, a portion of the “Code” had already been published. This was the section dealing with the parole, and its early promulgation to the field was necessitated by the overly frequent use of parole, both by officers and enlisted men, as a socially acceptable device for desertion on the battlefield or release from Confederate prisoner-of-war camps. Although General Orders No. 49 of the War Department, issued on 28 February 1863, clearly shows the influence and, for the most part, the language of Lieber, the hand of an individual more interested in the disciplinary measures which might be taken against offenders under the law ofthe United States is also evident. Provisions common to both the printed manuscript draft and the completed “Code,” such as Articles 119, 120, and 122, dealing with the general nature and effect of the giving of a parole, and Article 129, which specifies the form of parole which may be used in the capitulation of strong places, are omitted in General Orders No. 49. On the other hand, the provision of paragraph 9 of General Orders No. 49 that: “No one can pledge his parole that he will never bear arms against the government of his captors, nor that he will not bear arms against any other enemy of his government, not at the time the ally of his captors. Such agreements have reference only to the existing enemy and his existing allies, and to the existing war, and not to future belligerents.”, is not found in either the draft or the final form of the “Code.” Nor is it possible to say with any degree of definitiveness whether these orders were based on an early draft or on the “Code” as it approached its final form. Article 127 of General Orders 100, relating to the giving of paroles by a noncommissioned officer or private, is reproduced in General Orders 49 as paragraph 6, but paragraph 4 thereof, relating to punishments for officers giving their parole on the battlefield, has a counterpart only in the manuscript draft.
It was not, however, until the middle of May that the “Instructions for the Government of Armies of the United States in the Field,” as the Code was ultimately called, had been approved by President Lincoln and promulgated in General Orders No. 100 of 1863. The orders themselves bore the date of24 April 1863, but general orders of the Army are not effective until the actual date of their promulgation. Although a few changes had been made in the Code by Lieber and by a hand unknown to him during the process of being approved, the Instructions were published in substantially the form in which they had been approved by the board.
Lieber later wrote: “While writing down this code I felt the high responsibility weighing on me, and the gravity as well as the nobleness ofthis task; I was conscious of doing a piece of work for mankind of historic effect and permanency.”