Saturday, June 27, 2015

Francis Lieber to Major-General Henry W. Halleck, February 20, 1863


New York, February 20, 1863.

My Dear General, — Here is the projet of the code I was charged with drawing up.1 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. For two or three paragraphs you will observe we should want the assistance of Congress. That is now too late; but I suggest to you to decide with the Secretary of War whether it would be advisable and feasible to send the Code even now, and as it is, to our generals, to be a guide on some difficult and important points. I observe from some orders of General Rosecrans that he has used my pamphlet on “Guerilla Warfare,” unless there be a remarkable spontaneous coincidence.  . . . I do not believe that it will be possible to change for the present war, or at least immediately, the usage which has grown up regarding parolling privates, but you will agree with me that the law, as I have laid it down, is the law and usage. As parolling is now handled by us, it amounts to a premium on cowardice, e. g. in the affair of Harper's Ferry.  . . . You are one of those from whom I most desire suggestions, because you will read the Code as lawyer and as commander. Even your general opinion of the whole is important to me. I have earnestly endeavored to treat of these grave topics conscientiously end comprehensively; and you, well read in the literature on this branch of international law, know that nothing of the 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 imperfect.  . . . Ought I to add anything on a belligerent's using, in battle, the colors and uniform of his opponent? I believe when this has been done no quarter has been given. I have said nothing on rebellion and invasion of our country with reference to the treatment of our own citizens by the commanding general. I have three paragraphs on this subject, but it does not fall within the limits, as indicated in the special order appointing our board. . . .
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1 This refers to the pamphlet entitled “Instructions for the Government of Armies of the United States in the Field,” published by the War Department, in April, 1863, as General Orders, No. 100.

SOURCE: Thomas Sergeant Perry, Editor, The Life and Letters of Francis Lieber, p. 330-1

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