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. . . .
_______________
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
