Rules of War

CMWinkler

Colonel
Retired Moderator
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Some here have brought this topic up so I thought I would start a thread. What were the "Rules of War" generally accepted by both sides as binding upon them?
 
Some here have brought this topic up so I thought I would start a thread. What were the "Rules of War" generally accepted by both sides as binding upon them?
John Fabian Will published a new book on the American understanding of the laws of war at the time of the Civil War. The "Lieber Code" written by a German immigrant, Francis Lieber, is the first comprehensive American statement of the laws of war. It became a basis for the Geneva Convention two generations later. As you will imagine, Lieber's code was not accepted in its entirety by Confederates since it placed black soldiers on a level of equality with whites.


lincolns code.JPG
 
Gen. Winkler,
I frankly do not know the rules of war, as subscribed by both sides during the war. However, I know that problems arose because local officers were often left to interpret those rules within their areas of operation. Out here in Missouri, the Federal officers in charge, one by one, interpreted those rules according to their own whim. This lead to great hardships among the civilian population and to summary execution of many captured guerrilla soldiers. That, in turn, lead to summary executions perpetrated by some guerrillas upon some captured Federal soldiers. (Not always, but when it happened, it was too often). A good case can be made (and it has OFTEN been made in the past) that bungling Federal Generals, by their interpretation of the rules of war, did more for the southern recruiting effort in Missouri than anyone else.

But I did not mean to hijack your thread, Sir. I will be as interested to read the answers as will you. Thank you for posting this inquiry.

Patrick
 
First Sergeant Young,
Thank you for posting. I do note that these rules leave lots of interpretation to the local officers--especially when it comes to defining a "guerrilla". Pretty scary. Thank you for posting this.
Patrick
 
First Sergeant Young,
Thank you for posting. I do note that these rules leave lots of interpretation to the local officers--especially when it comes to defining a "guerrilla". Pretty scary. Thank you for posting this.
Patrick
Modern commentators most frequently criticize the Lieber code for its section on guerrillas.
 
I haven't looked at the Lieber code in detail for quite some time (but will do so soon) but I still feel that it was wrong for the North to purposefully attack civilian populations and that such was commonly considered not a right of war at the time. That's one of the things often cited by the "first total war" school folk as differentiating the Civil War from previous wars.

So I do wonder what, aside from simple "we'll win sooner if we do this" rationalization, led Lincoln et al. to believe that what they were doing was allowed by the generally accepted practices of the day.
 
"The most prominent authority on this subject for the Americans of the 1860s was the notable Swiss international-law writer of the eighteenth century, Emmerich de Vattel. In his famous book The Law of Nations (1758), he set out what became the basis of modern international legal doctrine on civil wars. He held that, under certain rather special conditions, a condition of internal conflict would become, from the standpoint of international law, fully equivalent to an interstate war. This was a situation in which rebellious subjects wholly rejected their ruler's right to govern them—that is, where the insurgents' goal was either to overthrow their government and take it over themselves or to secede and form a separate state. Vattel labeled this a "civil war" in the true legal sense of the term. A civil war, in this strict sense, was fully equivalent to an interstate war, on the ground that the insurgents and the government constituted, in fact if not strictly in law, two distinct nations.44"
Justice in Blue and Gray - A Legal History of the Civil War, Stephen C. Neff, pg. 18


"Lieber became a close associate of Union general Henry W. Halleck, who was himself a legal writer of some renown. Halleck had served as secretary of state of California in the 1850s, a task which involved him in a number of legal issues relating to the integration of the English- and Spanish-based legal systems in the newly acquired territory. From this work grew a general treatise on international law, published at the outset of the war in May 1861, which was largely an updated version of Vattel's classic treatise, written in 1758.7 Halleck and his treatise, as events proved, both had great futures ahead of them. Halleck himself soon became the highest ranking Union general, as a result of his command of Union forces in the West in the first year of the conflict—the only instance in American history of a leading writer on international law holding such a position. His treatise, in the meantime, endured into the twentieth century as a leading American work in the field of international law.8

"Halleck, of all people, was therefore disposed to be sensitive to the many legal issues that were bound to come his way in the course of his work as the commanding Union general. More specifically, Halleck recognized the need for a convenient and usable summary of the laws of war—succinct but comprehensive, readable but detailed—for use by serving soldiers. For the compilation of such a summary, Halleck turned to Lieber for assistance. In April 1863, the Lieber Code, as the work has been appropriately known ever since, was completed and duly promulgated by President Lincoln as a set of general orders for the whole of the Union armies.9 Since the code was a restatement, or summary of the existing laws of war, rather than actual new legislation, it did not require congressional approval.

"The Lieber Code may be said, without undue exaggeration, to be something of a legal masterpiece—a sort of pocket version of Blackstone's famous Commentaries on the Laws of England, though confined to the particular subject of the laws of land warfare. It was not simply a list of rules, as might be implied by the label "code." It was, in addition, a miniature commentary on those rules, explaining, if only in the briefest terms, the basic principles underlying the specific commands and prohibitions."
ibid., pg. 57
 
I haven't looked at the Lieber code in detail for quite some time (but will do so soon) but I still feel that it was wrong for the North to purposefully attack civilian populations and that such was commonly considered not a right of war at the time. That's one of the things often cited by the "first total war" school folk as differentiating the Civil War from previous wars.

So I do wonder what, aside from simple "we'll win sooner if we do this" rationalization, led Lincoln et al. to believe that what they were doing was allowed by the generally accepted practices of the day.


Sherman's plan with Lincoln and Grant's blessing to bring war directly to the Confederacy's interior and civilian population was neither novel nor was it criminal:

"On certain occasions, however, matters are carried still farther: a country is totally ravaged, towns and villages are sacked, and delivered up a prey to fire and sword. Dreadful extremities, even when we are forced into them! Savage and monstrous excesses, when committed without necessity! There are two reasons, however, which may authorize them, - 1. the necessity of chastising an unjust and barbarous nation, of checking her brutality, and preserving ourselves from her depredations. Who can doubt that the king of Spain and the powers of Italy have a very good right utterly to destroy those maritime towns of Africa, those nests of pirates, that are continually molesting their commerce and ruining their subjects?

But what nation will proceed to such extremities merely for the sake of punishing the hostile sovereign? It is but indirectly that he will feel the punishment: and how great the cruelty, to ruin an innocent people in order to reach him! The same prince whose firmness and just resentment was commended in the bombardment of Algiers, was, after that of Genoa, accused of pride and inhumanity.

2. We ravage a country and render it uninhabitable, in order to make it serve us as a barrier, and to cover our frontier against an enemy whose incursions we are unable to check by any other means. A cruel expedient, it is true: but why should we not be allowed to adopt it at the expense of the enemy, since, with the same view, we readily submit to lay waste our own provinces?"
The Law of Nations, Emmerich de Vattel, Book III, Chapter IX, Section 167
_______________________________________

"VI. This right of making lawful what is done in war is of great extent. For in the first place it comprises, in the number of enemies, not only those who actually bear arms, or who are immediately subjects of the belligerent power, but even all who are within the hostile territories, as appears from the form given by Livy, who says, that 'war is declared against the sovereign, and all within his jurisdiction.' For which a very good reason may be assigned; because danger is to be apprehended even from THEM, which, in a continued and regular war, establishes the right now under discussion.

Reprisals do not come exactly under the same rule. For like taxes, they were introduced for the discharge of public debts, for no part of which temporary residents, or foreigners are answerable. Therefore Baldus is right in his observation, that, after war is actually begun, much greater latitude is allowed, than in the bare right of making reprisals. So that what is said of foreigners, who enter into an enemy's country, and reside there, after war is avowedly declared and begun, is undoubtedly true.

VII. But persons, who had gone to reside there before the war was begun, seem by the law of nations to be included in the number of enemies, unless within a reasonable time they chuse to withdraw. So that the Corcyraeans, when going to besiege Epidammus, gave leave to all strangers to withdraw, denouncing that they would otherwise be treated as enemies.

VIII. But the persons of natural-born subjects, who owe permanent allegiance to a hostile power may, according to the law of nations, be attacked, or seized, wherever they are found. For whenever, as it was said before, war is declared against any power, it is at the same time declared against all the subjects of that power. And the law of nations authorises us to attack an enemy in every place: An opinion supported by most legal authorities:"
On the Law of War and Peace , Hugo Grotius, Book III, Chapter IV
_________________________________________

"CHAPTER 5: On the Right to Lay Waste an Enemy's Country, and Carry off his Effects.
An enemy's property may be wasted and plundered — Things deemed sacred, how far exempted — Stratagem, how far permitted.

I. CICERO, in the third book of his offices, has said that there is nothing repugnant to the LAW OF NATURE in spoiling the effects of an enemy, whom by the same law we are authorized to kill. Wherefore it is not surprising that the same things should be allowed by the LAW OF NATIONS. Polybius, for this reason, in the fifth book of his history, maintains, that the laws of war authorise the destruction of an enemy's forts, harbours, and fleets, the seizure of his men, or carrying off the produce of his country, and every thing of that description And we find from Livy that there are certain rights of war, by which an enemy must expect to suffer the calamities, which he is allowed to inflict, such as the burning of corn, the destruction of houses, and the plunder of men and cattle.

Almost every page of history abounds in examples of entire cities being destroyed, walls levelled to the ground, and even whole countries wasted by fire and sword. Even in cases of surrender, towns have sometimes been destroyed, while the inhabitants were spared — an example of which is given by Tacitus, in the taking of Artaxata by the Romans; the inhabitants opened their gates and were spared, but the town was devoted to the flames.

II. Nor does the law of nations, in itself, considered apart from other duties, which will be mentioned hereafter, make any exemption in favour of things deemed sacred. For when places are taken by an enemy, all things without exception, whether sacred or not, must fall a sacrifice. For which it is assigned as a reason, that things which are called sacred, are not actually excepted from all human uses, but are a kind of public property, called sacred indeed from the general purposes, to which they are more immediately devoted. And as a proof of this, it is usual, when one nation surrenders to another state or sovereign, to surrender, along with other rights, every thing of a sacred kind, as appears by the form cited from Livy in a former part of this treatise."
ibid., Chapter V
________________________________________


"Article 21. The citizen or native of a hostile country is thus an enemy, as one of the constituents of the hostile state or nation, and as such is subjected to the hardships of the war."
Lieber Code


The people of the South supported their leaders actions against the United States and their active involvment was demanded by Southern leaders:

RICHMOND, November 18, 1864.
TO THE PEOPLE OF Georgia:
You have now the best opportunity ever yet presented to destroy the enemy. Put everything at the disposal of our generals; remove all provisions from the path of the invader, and put all obstructions in his path. Every citizen with his gun, and every negro with his spade and axe, can do the work of a soldier. You can destroy the enemy by retarding his march. Georgians, be firm! Act promptly, and fear not!
B. H. HILL,
Senator.
I most cordially approved the above.
JAMES A. SEDDON,
Secretary of War.
O.R. Series I, Vol. XLIV, p 867
----------------------------------

CORINTH, November 18, 1864.
TO THE PEOPLE OF Georgia:
Arise for the defense of your native soil! Rally round your patriotic Governor and gallant soldiers! Obstruct and destroy all roads in Sherman's front, flank, and rear, and his army will soon starve in your midst! Be confident and resolute! Trust in an overruling Providence, and success will crown your efforts. I hasten to join you in defense of your homes and firesides.
G. T. BEAUREGARD.
CORINTH, November 18, 1864.
ibid.
----------------------------------------
 
One of the interesting items I have read, not sure if it's among the rules, is the issue of a flag of truce to collect the dead and wounded of a battle.

At Cold Harbor, Grant should have asked for one but he didn't want to admit he had lost the battle and so men laid there suffering and dying. He and Lee corresponded for 2 days over this!

And someone probably remembers better then I do but there was an issue over this between them at Spotsylvania too.
 
Perhaps you are right Sergeant Major Copperhead that the Confederacy would have done the same thing given the chance but they didn't really get one so we'll never really know. As to legality there don't seem to have been any international binding rules so I suppose the Union policy was also legal in the strict sense.

However, I still feel it was immoral especially in the case of Sherman in Georgia. After Atlanta he really faced no real military resistance (until he got to NC anyway) so he could have achieved his objective without the scorch and burn policy. Also, his bombardment of Atlanta proper seems unwarranted and directed at a civilian population that was not engaged in the fight. I just feel Sherman, with Lincoln's blessing, was taking revenge and it was immoral, unnecessary, and unbecoming of gentlemen to do so.

I'm going to guess that we're not going to agree but that's how I feel.
 
I haven't looked at the Lieber code in detail for quite some time (but will do so soon) but I still feel that it was wrong for the North to purposefully attack civilian populations and that such was commonly considered not a right of war at the time. That's one of the things often cited by the "first total war" school folk as differentiating the Civil War from previous wars.

So I do wonder what, aside from simple "we'll win sooner if we do this" rationalization, led Lincoln et al. to believe that what they were doing was allowed by the generally accepted practices of the day.


"The other two forms of taking enemy private property—capture and destruction—are permissible, like requisition, under the heading of military necessity, that is, when they are done as part of a military operation designed to bring about the defeat of the enemy. Several important points should be noted about the traditional belligerent right of capture in land warfare, as it existed in the Middle Ages and subsequent centuries.220 The first is that it was a right to appropriate any and all property belonging to enemy nationals, without limit and without any need to demonstrate that the capture, in particular cases, actually made a contribution to the war effort or was required for the army's own use. It should also be noted that ownership by any enemy national (or resident of enemy territory) sufficed to justify the capture. Whether the actual owner, in a given case, actually supported the enemy's war effort or not was entirely irrelevant.221 Moreover, the act of capture itself-—i.e., the taking of the property into the physical custody—automatically effected a transfer of legal title to the property from the original owner to the captor state.222

"This traditional belligerent right to capture enemy private property was a sign of what might fairly be called a total-war mentality that prevailed in the law of war in the Middle Ages. The thesis was that all nationals of an enemy state, even civilians plying their ordinary trades, are automatically regarded as enemies and liable to be treated as such. The underlying thesis was that any citizen's property might, at any time, be put to use by his or her ruler in furtherance of the war effort. Even in the Middle Ages, however, this generous policy (to captors) began to be mitigated; and, at least in European land warfare, the view gradually took hold that private property should not be subject to capture. International lawyers were hesitant, though, to institute an outright prohibition against the capturing of private property. Vattel, in the middle of the eighteenth century, held it to be still lawful.223 The Lieber Code did not contain an explicit general prohibition against the capture of enemy private property on land.224 The traditional belligerent right of capture therefore maintained a sort of vestigial existence."
Justice in Blue and Gray - A Legal History of the Civil War, Stephen C. Neff, pg. 96
 
I realize I might be hijacking the intent of the original poster. For that, I apologize. But, still....out here in Missouri, we had a situation of native boys wishing to defend their home counties. Yes, many enlisted in Confederate outfits (knowing they would probably be transferred far to the East), but many others chose to stay home and fight as guerrillas. Other equally brave boys enlisted in Federal outfits (my Great Uncle among them). The Confederate government recognized the desire of local boys to defend their home counties by passing the Partisan Ranger Act. The problem was: The Federal government did not seem too inclined to recognize partisan rangers as soldiers under the rules of war. In fact, a series of Federal generals determined that Missouri guerrillas should NOT be accepted as soldiers under the rules of war. Surrenders were NOT to be accepted. Instead, those boys were to be treated as common criminals and summarily executed. And most of them did not have the benefit of civil law when they were judged as criminals. As I have said in other threads, times were especially tough out here under martial law, with all normal rules of civil law suspended. The interpretation of martial law was usually left to the local Provost Martial out here, and those men were not of equal mentality or common sense. Some were simply in over their heads and some others were nothing more than power-obsessed bullies. Before long, normal rules of war were often a mute point out here. That applies to the way both sides fought their war here. There are some exceptions to my last statement, of course, and they are quite interesting cases. It was a particularly sad time for civilian and soldier alike--regardless of which side you favored.
 
Modern commentators most frequently criticize the Lieber code for its section on guerrillas.


The Lieber Code did not use the term "guerrilla" but Article 82 described them as "[m]en, or squads of men, who commit hostilities, whether by fighting, or inroads for destruction or plunder, or by raids of any kind,without commission, without being part and portion of the organized hostile army, and without sharing continuously in the war, but who do so with intermitting returns to their homes and avocations, or with the occasional assumption of the semblance of peaceful pursuits, divesting themselves of the character or appearance of soldiers - such men, or squads of men, are not public enemies, and, therefore, if captured, are not entitled to the privileges of prisoners of war, but shall be treated summarily as highway robbers or pirates."

The Confederacy disagreed and insisted that they had every right to use unconventional warfare pointing to the American Revolution as a precedent as witnessed in the following excerpt from a letter from General Daniel Ruggles C.S.A. to General Benjamin Butler U.S.:

"GENERAL: I have received petitions from officers of the First Regiment Louisiana Partisan Rangers touching the case of Henry Castle, jr., a private of Company H, of that regiment, and also an application respecting Thomas C. Pennington, a private of Captain Wilson Tate's company, of the same regiment, and I deem it expedient to request your early consideration of the subject.

"It appears that Private Castle was captured by a detachment of Federal troops in the vicinity of Baton Rouge on or about the 7th of the present month and Private Pennington on or about the 28th day of June; that they were taken to New Orleans, and are held either there or at one of the forts in the vicinity in close confinement, with the threat that they are to be tried and executed as members of a military organization not sanctioned by the laws of civilized warfare. It is to be observed that the first great law of nature, the right of self-defense, is inherent in communities as well as individuals. No law condemns the individual who slays the robber or the assassin, and no just law can condemn a community for using all its power to resist the invader and drive him from their soil. The exercise of this right, so universally recognized, becomes an imperative duty when the invader, as has been the case with the Federal troops in this district, disregards those rules of warfare recognized and respected by all civilized nations and adopts that code which has heretofore been confined to the rudest savages.

"The proof of this i unfortunately too abundant in the vicinity of Baton Rouge. It is attested by helpless women and children flying from their burning homes; by the desolation of plantations; by the plunder of private property, and the wanton destruction of growing crops. Such acts are crimes against humanity, and justify all men in taking up arms against their perpetrators.

"The independence of nations has rarely been achieved by regular armies. Our own Revolution-that Revolution which successfully established the great principle for which the Confederate States are now contending, that "all governments derive their just powers from the consent of the governed"--was mainly fought out by men who left the plow at the news of the enemy's approach and returned to it when he had been driven back. It may be conceded that in Europe, where the governments mainly rely upon large standing armies, which are as much as possible disconnected with the people, and where the policy is to prevent the people from bearing arms under almost any circumstances some very absurd refinements on this subject have been asserted and to some extent tolerated. But such doctrines have never been recognized on this continent. The United States especially has always repudiated them.

"The various revolutions which have agitated the Central and South American States have been conducted by the people, frequently without leaders other than those chosen upon the spur of the occasion to direct a single enterprise. And, to recur to the Revolution of our forefathers, the history of that immortal struggle abounds with instances where the hardy yeomen, as at Lexington and Bunker Hill, were, like the clansmen of Roderick Dhu, called by a concerted signal to some "Lanrick Mead," and there selected their officers upon the very field of battle.

"But whatever difference of opinion may exist on this point, it has never been claimed, even by the most stringent advocates of legitimacy, that one belligerent has any right to complain of the name or form which the other may choose to give to its military organizations. The right to adapt these tot he peculiar service required has been universally conceded. So far indeed has this practice been carried in naval warfare that privateers men, "the militia of the seas," with charters as broad as the ocean's bounds, are recognized as legitimate among belligerent. And now indeed the extraordinary spectacle is presented to the contemplation of civilized man, in this boasted nineteenth century of the Christian world, of a nation claiming to be civilized in violation of its constitutions, inaugurating deliberately servile war, by stimulating the half civilized African to raise his hand against his master and benefactor, and thus make war upon the Anglo-Saxon race-war on human nature.

"This with the Federal Government is legitimate warfare; but the defense of their firesides by Southern citizens is treason and murder. "
O.R. Series I, Volume XV, pp. 519-520
 
I realize I might be hijacking the intent of the original poster. For that, I apologize. But, still....out here in Missouri, we had a situation of native boys wishing to defend their home counties. Yes, many enlisted in Confederate outfits (knowing they would probably be transferred far to the East), but many others chose to stay home and fight as guerrillas. Other equally brave boys enlisted in Federal outfits (my Great Uncle among them). The Confederate government recognized the desire of local boys to defend their home counties by passing the Partisan Ranger Act. The problem was: The Federal government did not seem too inclined to recognize partisan rangers as soldiers under the rules of war. In fact, a series of Federal generals determined that Missouri guerrillas should NOT be accepted as soldiers under the rules of war. Surrenders were NOT to be accepted. Instead, those boys were to be treated as common criminals and summarily executed. And most of them did not have the benefit of civil law when they were judged as criminals. As I have said in other threads, times were especially tough out here under martial law, with all normal rules of civil law suspended. The interpretation of martial law was usually left to the local Provost Martial out here, and those men were not of equal mentality or common sense. Some were simply in over their heads and some others were nothing more than power-obsessed bullies. Before long, normal rules of war were often a mute point out here. That applies to the way both sides fought their war here. There are some exceptions to my last statement, of course, and they are quite interesting cases. It was a particularly sad time for civilian and soldier alike--regardless of which side you favored.
I don't see how else the Union was supposed to fight guerrilla's . If CSA partisans wore Union uniforms where they supposed to be put in a POW camp like the regular (not that a CW pow camp was a 5 star resort) CSA troops. History has shown time and time again that win loose or draw they are not fought by any kind of"rules' or if they are has the old saying goes "rules where made to be broken".
Leftyhunter
 
I don't see how else the Union was supposed to fight guerrilla's . If CSA partisans wore Union uniforms where they supposed to be put in a POW camp like the regular (not that a CW pow camp was a 5 star resort) CSA troops. History has shown time and time again that win loose or draw they are not fought by any kind of"rules' or if they are has the old saying goes "rules where made to be broken".
Leftyhunter


The Lieber Code made a clear distinction between "partisans," "guerrillas" and any hostile wearing the uniform of a U.S. soldier:

Art. 81. Partisans are soldiers armed and wearing the uniform of their
army, but belonging to a corps which acts detached from the main body for
the purpose of making inroads into the territory occupied by the enemy. If
captured, they are entitled to all the privileges of the prisoner of war.

Art. 82. Men, or squads of men, who commit hostilities, whether by
fighting, or inroads for destruction or plunder, or by raids of any kind,
without commission, without being part and portion of the organized hostile
army, and without sharing continuously in the war, but who do so with
intermitting returns to their homes and avocations, or with the occasional
assumption of the semblance of peaceful pursuits, divesting themselves of
the character or appearance of soldiers - such men, or squads of men, are
not public enemies, and, therefore, if captured, are not entitled to the
privileges of prisoners of war, but shall be treated summarily as highway
robbers or pirates.

Art. 83. Scouts, or single soldiers, if disguised in the dress of the
country or in the uniform of the army hostile to their own, employed in
obtaining information, if found within or lurking about the lines of the
captor, are treated as spies, and suffer death.
 
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