Page images

ber, 1911-January, 1912, resulting in a convention, and a similar conference will be held in June of this year, in order to reach, if possible, a final agreement.

Within the last few months-to be accurate, on October 12, 1912— the American Institute of International Law was founded, in order to create a bond of scientific union between the international lawyers of the Western Hemisphere. The publicists of each American Republic will be represented by five members. National or local societies of international law will be formed in each republic, whose members will be associates of the Institute. The principles of international law and American problems will be studied in the light of general principles, and principles will be developed to decide the problem, if they do not exist, with due regard for the fundamental conceptions of international law.

We wish the Institute well and hope that it may not only popularize international law in all the republics of America, but contribute in no small measure to its development.

It will be interesting to the members of the Society to learn that beginning with January, 1912, the AMERICAN JOURNAL OF INTERNATIONAL LAW has been issued in a Spanish edition, which is widely circulated in Latin America. The ministries of foreign affairs, Latin American diplomats, and distinguished publicists have subscribed for it, so that it appears probable that the JOURNAL in its Spanish form will circulate widely in Latin America.

I regret to announce, in concluding, the death of an honorary member of the Society. The distinguished publicist, Mr. John Westlake, formerly professor of international law at the University of Cambridge, died at his residence in London, on April 14, 1913. He was, as we all know, the author of a standard treatise on private international law and of two small volumes on international law, which are everywhere considered as both masterly and invaluable. He was one of the founders of the Revue de Droit International et de Législation Comparée. He was an original member of the Institute of International Law and at the time of his death was its Honorary President. Although eighty-four years of age, he was in the full possession of his faculties and had just completed an edition of Ayala's De Jure et Officiis Bellicis et Disciplina Militari, published in the series of the Classics of International Law. A month to the day before his death he wrote a memorandum on one of the phases of the

Panama tolls question, to be read during the proceedings of this Society, in which he took a deep, keen and enlightened interest.



This year, 1913, is the fiftieth anniversary of a very important event in the history of international law-the adoption and enforcement by the American Government of the code of rules governing the conduct of armies in the field, which is known to the American army as General Orders No. 100, of 1863. It happens that, without any intention to create a coincidence, the seventh annual meeting of the American Society of International Law is appointed and we are met here, exactly fifty years after the twenty-fourth day of April, 1863, when President Lincoln promulgated that famous order. It seems appropriate for this Society at this time to celebrate the event by paying honor to Francis Lieber, the author of the instructions embodied in the order.

In the early stages of the American Civil War both parties put into the field immense armies, commanded for the most part by volunteer officers drawn from the ordinary occupations of civil life and quite ignorant of the laws and usages of war. The sources of information were to be found only in scattered text-books and treatises, most of them in foreign languages, few of them readily accessible, and requiring the painstaking and diligent labor of the student to search out rules. which were at the best subject to doubt and dispute. It was manifest that the officers of the Union and Confederate armies had neither time nor opportunity to enter upon an extended study of the international laws of war, and that unless some one indicated to these uninstructed and untrained combatants what was and what was not permissible in warfare, the conflict would be waged without those restraints upon the savage side of human nature, by which modern civilization has somewhat mitigated and confined the barbarous cruelties of war. Fortunately, General Halleck, who was put in chief command of the Union army in July, 1862, was an accomplished student of international law. He had already published an excellent book on that subject. While the duties of commanding general during an active conflict left him no time for research and codification himself, he knew what ought to be

done and how it ought to be done; and he called Francis Lieber, then a professor in Columbia College, and already a publicist distinguished upon both sides of the Atlantic, to the assistance of the government. The first service which Lieber rendered was the preparation in 1862 of a statement or essay upon Guerilla Parties Considered With Reference to the Laws and Usages of War. One cannot read this paper now, with its definite and lucid statements based upon grounds of reason and supported by historical reference, without feeling that it must have been a real satisfaction to the burdened and harassed Union authorities at Washington to have such a guide in dealing with the multitude of cases continually arising in that debatable land which intervenes between disciplined and responsible warfare on the one hand and simple robbery and murder on the other.

On the seventeenth of December, 1862, by order of Secretary Stanton, a board was created "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," and this board was made up of Francis Lieber, LL. D., and four volunteer officers, Generals Hitchcock, Cadwalader, Hartsuff and Martindale. That part of the board's work which consisted of preparing the code of regulations appears to have been committed to Doctor Lieber. The nature of the field upon which he entered and the spirit in which he did his work are indicated by Lieber's letter transmitting the result to General Halleck, on the 20th of February, 1863:


Here is the project of the code I was charged with drawing up. I am going to send fifty copies to General Hitchcock for distribution, and I earnestly ask for suggestions and amendments. I am going to send for that purpose a copy to General Scott, and another to Hon. Horace Binney. * * * 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 the kind exists in any language. I had no guide, no ground-work, no text-book. I can assure you, as a friend, that no counselor 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 imperfect.

* *


Lieber's estimate of the work and of the occasion for it is shown in a letter from him to General Halleck of the 20th of May, 1863:

My dear General,—I have the copy of General Orders 100 which you sent me. The generals of the board have added some valuable parts; but there have also been a few things omitted, which I regret. As the order now stands, I think that No. 100 will do honor to our country. It will be adopted as a basis for similar works by the English, French, and Germans. It is a contribution by the United States to the stock of common civilization. I feel almost sad in closing this business. Let me hope it will not put a stop to our correspondence. I regret that your name is not visibly connected with this Code. You do not regret it, because you are void of ambition, to a faulty degree, as it seems to me * * * I believe it is now time for you to issue a strong order, directing attention to those paragraphs in the Code which prohibit devastation, demolition of private property, etc. I know by letters from the West and the South written by men on our side, that the wanton destruction of property by our men is alarming. It does incalculable injury. It demoralizes our troops; it annihilates wealth irrecoverably, and makes a return to a state of peace more and more difficult. Your order, though impressive and even sharp, might be written with reference to the Code, and pointing out the disastrous consequences of reckless devastation, in such a manner as not to furnish our reckless enemy with new arguments for his savagery. * * *

The instructions comprise one hundred and fifty-seven articles. The scope of the work can be indicated briefly by stating the titles of the ten sections in which the articles are grouped.

Martial Law; Military Jurisdiction; Military Necessity; Retaliation.

Public and Private Property of the Enemy; Protection of Prisoners, and especially Women; of Religion, the Arts, and Sciences -Punishment of Crimes Against the Inhabitants of Hostile Countries.

Deserters; Prisoners of War; Hostages; Booty on the Battle


Partisans; Armed Enemies not Belonging to Hostile Armies; Scouts; Armed Prowlers; War Rebels.

Safe Conduct; Spies; War Traitors; Captured Messengers;
Abuse of the Flag of Truce.

Exchange of Prisoners; Flags of Truce; Flags of Protection.
The Parole.

Armistice Capitulation.


Insurrection; Civil War; Rebellion.

The provisions on these subjects give evidence of great learning and careful consideration. They covered the entire historical field of questions which had arisen and the possibilities of questions likely to arise, calling for instruction and direction. The definitions are clear, the injunctions and prohibitions distinct and unambiguous, and, while the instrument was a practical presentation of what the laws and usages of war were, and not a technical discussion of what the writer thought they ought to be, in all its parts may be discerned an instinctive selection of the best and most humane practice and an assertion of the control of morals to the limit permitted by the dreadful business in which the rules were to be applied.

These instructions directed the action of the Union officers and controlled the conduct of the Union forces during that great war which ended in the triumph of the armies on which their limitations were imposed. No one can say how far it was due to the instructions, but in honoring the memory of Francis Lieber we should not forget that after the surrender and the triumph came reconciliation, friendship, the restoration of a united country, and, beyond all human experience, even within the lifetime of the generation which had waged the conflict, freedom from the bitterness of spirit that time cannot soften.

Although the instructions were prepared for use in a civil war, a great part of them were of general application, and they were adopted by the German Government for the conduct of its armies in the field in the war of 1870 with France. It is interesting that this work of a simple private citizen should become the law controlling the mightiest forces of both the country of his adoption and the country of his birth. The sanction of two powerful governments for these rules and their successful employment in two of the greatest wars of modern times gave to them an authority never before acquired by any codification or statement of any considerable number of rules intended for international application. The prediction of Lieber that General Orders No. 100 would do honor to our country, that it would be adopted as a basis for similar works by the English, French, and Germans, and that it would be a contribution by the United States to the stock of common civilization, was justified. In the Brussels Conference of 1874, convened at the instance of the Emperor of Russia for the

« PreviousContinue »