1863 Laws of War

INTRODUCTION

FROM its inception as a nation, America has venerated the rule of law. The armed forces of the United States have, at least since 1806, had laws governing the activity of the army and navy both in times of peace and when at war. The laws governing the military forces were, for the most part, passed as acts of Congress. Some were in themselves specific laws, such as the Articles of War. Other laws were contained in army regulations, presidential directives, and authorities granted under other laws allowing commanders of the army to promulgate decrees called general orders. Violations of the Articles of War, general orders, and army regulations were punishable by court-martial.

The advent of the American Civil War (1861–1865) resulted in a considerable expansion in the laws governing the conduct of warfare, especially General Order No. 100, or the Lieber Code as it was commonly called. The effect of this originally American code was so profound that the code was adopted into the laws and customs of war of several nations and included later into the Hague and Geneva Conventions.

Four such laws of war are contained in this book. Together, they offer considerable insight into how the army was governed, controlled, and operated. These laws are a valuable historical reference into the times of the Civil War, and they are also instructive and fascinating reading, sort of a commentary of man’s attempts to control the ravages of warfare. That they were strictly adhered to by both the Union and Confederate armies is a testament to relatively homogeneous nature of American society in the mid-nineteenth century.

I. Articles of War: An Act for Establishing Rules and Articles for the Government of the Armies of the United States, April 10, 1806 (as amended through June 25, 1863).

The first set of laws is the Articles of War, properly titled: An Act for Establishing Rules and Articles for the Government of the Armies of the United States. The joint act of Congress establishing the Articles of War was first passed on April 10, 1806. The Articles were modified once by the act of May 29, 1830. In 1861, they were again revised. Further amendments up to June 25, 1863 are included in the articles as noted.

The Articles of War are the predecessor of the modern-day Uniform Code of Military Justice. The Articles governed the discipline and behavior of soldiers toward superiors, toward each other, toward the enemy, and for performance of their sworn duties as soldiers. The Articles were the basis for discipline in the ranks. Violations of the Articles were punishable by the military authorities. Adjudication of violators was by regimental and/or general courts-martial, procedures for which are also contained in the Articles and in the Revised Army Regulations. Punishments ranged from death and imprisonment, to dismissal from the service, forfeitures of pay, and reprimand. For example, the second article of war states that officers behaving indecently or irreverently in any place of worship are to be brought before a court-martial and severely reprimanded. Non-commissioned officers caught uttering a profane oath were fined one dollar for the first offense. Proceeds from such fines were to go to the regimental or company fund for the benefit of sick soldiers. Sending a challenge to a duel risked being cashiered from the service. More serious offenses such as desertion in time of war, divulging a password to the enemy, and like matters were punishable by death or as directed by court-martial.

As of June 25, 1863, there were 102 Articles of War, one of which had not yet been numbered.

II. General Orders 100: Instructions for the Government of the Armies of the United States in the Field, April 24, 1863.

One of the most profound sets of laws to emerge from the American Civil War was General Orders No. 100, Instructions for the Government of Armies of the United States in the Field, written at the direction of President Lincoln by Professor Francis Lieber, and promulgated on April 24, 1863.

By 1862, Lincoln was concerned about the inhumanity of war between two sets of Americans, threats of retaliation against prisoners of war on both sides, and about the effects of war on non-combatant civilians. Lincoln was a healer; he wished to avoid development of civil hatred that might not heal when the war ended. To achieve this, he directed Professor Lieber, through General-in-Chief Henry W. Halleck, to write a code of wartime conduct for Union forces on the battlefield.

Lieber, a doctor of philosophy and law, was born in Germany. He fought with Blücher at Waterloo in 1815 and in Greece’s 1820 war of independence. He taught at the University of Jena in Germany and immigrated to the United States in 1827. He taught international law at South Carolina College and Columbia University in New York.

In 1862, his writings and lectures on aspects of the law and usage of war caught the attention of General Halleck, who was searching for guidance to give the army regarding treatment of guerrilla forces then harassing the Union army. Lieber, however, had a broader concept in mind, namely a definitive work on the laws and usage of war, and with President Lincoln’s support, the project commenced.

Military leaders from antiquity on set down rules and regulations to discipline their troops. The Romans had detailed rules, and so did the United States after the act of 1806, the date of the original Articles of War cited above. But these rules, for the most part, were designed for the internal discipline of the army. Few rules existed for treatment of the enemy or civilian populations, or unconventional forces (partisans and guerrillas) that emerged in the course of the American Civil War.

Theories on the laws of war between nations in the Christian tradition have a long history. Church leaders first attempted to bring notions of morality and humane treatment into war. Among the earliest attempts are the fifth-century writings of St. Augustine, bishop of Hippo. In his City of God, Augustine proceeds to define a just war and some of the permitted and proscribed acts of armies vis-à-vis each other and the innocent civilian population. Through the centuries, law-of-war theorists in Europe developed certain touchstones of what was moral and immoral in war, which they purported to be universally binding in the relations between nations. Later writers, such as Machiavelli and Clause-witz, added their thoughts on the nature of war. Yet, there was no one synthesized, comprehensive law of land warfare that laid down in clear, explicit, formal terms the rights and obligations of one’s own army and those of an enemy’s army and the civilian population until that produced by Francis Lieber in 1863.

The Lieber Code contains ten themes. These were important themes that addressed problems directly associated with the circumstances being experienced by the Union and Confederate armies. As a general order, it had to be obeyed by Union Forces. Upon learning of its enactment, the Confederate commissioner inquired if the order was really going to be enforced within the Union army, or whether it was meant to apply only to Confederate forces. The answer was yes; it would be enforced in the Union army.

General Orders 100 had a profound effect on the international law of land warfare. The governments of Great Britain, France, and Prussia copied it. The Geneva Conventions of 1864/1868 and the Hague Convention of 1907 adopted Lieber’s Code, and these conventions were ratified by nearly all the civilized countries for implementation by their armies in the field.

III. General Orders No. 49: Order for the Making and Granting of Paroles, February 28, 1863

Rather than process thousands of prisoners of war in battle, many Union commanders began to issue paroles, whereby a captured Confederate soldier would be released from custody on his promise not to engage in fighting until he was duly exchanged for a Union prisoner of war. It was a loose system, and many so-called parolees simply joined a new unit and continued to fight.

To bring order to the system, Gen. Henry W. Halleck, General-in-Chief of the Union armies, issued General Orders No. 49 stipulating ground rules for making and giving paroles. Records were to be kept and prisoners handled in accordance with the new procedures. There were to be no more battlefield paroles. The choices were two: become a prisoner of war and await exchange of prisoners (negotiated by Union and Confederate agents for the exchange of prisoners) in a prisoner of war compound, or make a formal, recorded parole promise not to engage in armed conflict until exchanged. Giving a prisoner the latter option now required strict approval of higher authorities, with approval depending largely on the rank of the prisoner.

By the date of this general order, the Union army had a commissary-general for prisoners to oversee Union prisoner of war camps, and both the Union and Confederate armies had agents who negotiated the exchange of prisoners in accordance with this general order.

IV. Extracts of Revised United States Army Regulations of 1861, with an Appendix Containing Changes Affecting Army Regulations to June 25, 1863.

By mid-1863, the mobilization of the army, experience in the field, and technical developments resulted in so many changes to the Revised Regulations of 1861 that publication of a separate book to catalog them was required. The book was the Revised United States Army Regulations of 1861, with an Appendix Containing the Changes and Laws Affecting Army Regulations and Articles of War to June 25, 1863.

Army regulations in the Civil War consisted of 52 articles encompassing 1,676 paragraphs that provided how-to information regarding the administrative and tactical operations of the Army. The appendix contains 136 changes to the regulations that were introduced between the years 1861 and June 25, 1863. These changes revised or added to the general regulations of the army as well as to the regulations and instructions governing the various staff departments (Quartermaster, Recruiting Service, Ordnance Department, Pay Department, Commissary, etc.). In addition, there were six pages of extracts from acts of Congress giving the army guidance on various topics, primarily on the organization and pay of the army.

Army regulations were written by the army and were intended to contain all of the rules and instructions for operating the day-to-day army in the field and in garrison. But, the expansion of the army and the introduction of new equipment and weapons soon generated the need for much highly detailed technical information, such as forms and formats for correspondence, records formats, and similar minutia that later would be put into field manuals. In fact, by 1863, several sections of the Regulations, such as those dealing with engineer operations and technical ordnance specifications, had already been converted to separate manuals.

The extracts from the army regulations contained in this book are based primarily on Brig. Gen. Daniel Butterfield’s extracts of Army Regulations that should be known by every soldier, plus many additional ones selected by the publisher. Our selection portrays the important aspects of military operations addressed in each of the 52 articles.

PART I.

ARTICLES OF WAR:

AN ACT FOR ESTABLISHING RULES AND

ARTICLES FOR THE GOVERNMENT OF

THE ARMIES OF THE UNITED STATES,

APRIL 10, 1806, AS AMENDED

THROUGH JUNE 25, 1863

ARTICLES OF WAR.

AN ACT FOR ESTABLISHING RULES AND ARTICLES FOR THE GOVERNMENT OF THE ARMIES OF THE UNITED STATES.*

SECTION I. Be it enacted, by the Senate and House of Representatives of the United States of America, in Congress assembled, That, from and after the passing of this act, the following shall be the rules and articles by which the armies of the United States shall be governed:

ARTICLE 1. Every officer now in the army of the United States shall, in six months from the passing of this act, and every officer who shall hereafter be appointed shall, before he enters on the duties of his office, subscribe these rules and regulations.

ART. 2. It is earnestly recommended to all officers and soldiers diligently to attend divine service; and all officers who shall behave indecently or irreverently at any place of divine worship shall, if commissioned officers, be brought before a general court-martial, there to be publicly and severely reprimanded by the president; if non-commissioned officers or soldiers, every person so offending shall, for his first offense, forfeit one-sixth of a dollar, to be deducted out of his next pay; for the second offense, he shall not only forfeit a like sum, but be confined twenty-four hours; and for every like offense, shall suffer and pay in like manner; which money, so forfeited, shall be applied, by the captain or senior officer of the troop or company, to the use of the sick soldiers of the company or troop to which the offender belongs.

ART. 3. Any non-commissioned officer or soldier who shall use any profane oath or execration, shall incur the penalties expressed in the foregoing article; and a commissioned officer shall forfeit and pay, for each and every such offense, one dollar, to be applied as in the preceding article.

ART. 4. Every chaplain commissioned in the army or armies of the United States, who shall absent himself from the duties assigned him (excepting in cases of sickness or leave of absence), shall, on conviction thereof before a court-martial, be fined not exceeding one month’s pay, besides the loss of his pay during his absence; or be discharged, as the said court-martial shall judge proper.

ART. 5. Any officer or soldier who shall use contemptuous or disrespectful words against the President of the United States, against the Vice-President thereof, against the Congress of the United States, or against the Chief Magistrate or Legislature of any of the United States in which he may be quartered, if a commissioned officer, shall be cashiered, or otherwise punished, as a court-martial shall direct; if a non-commissioned officer or soldier, he shall suffer such punishment as shall be inflicted upon him by the sentence of a court-martial.

ART. 6. Any officer or soldier who shall behave himself with contempt or disrespect toward his commanding officer, shall be punished, according to the nature of his offense, by the judgment of a court-martial.

ART. 7. Any officer or soldier who shall begin, excite, cause, or join in, any mutiny or sedition, in any troop or company in the service of the United States, or in any party, post, detachment, or guard, shall suffer death, or such other punishment as by a court-martial shall be inflicted.

ART. 8. Any officer, non-commissioned officer, or soldier, who, being present at any mutiny or sedition, does not use his utmost endeavor to suppress the same, or, coming to the knowledge of any intended mutiny, does not, without delay, give information thereof to his commanding officer, shall be punished by the sentence of a court-martial with death, or otherwise, according to the nature of his offense.

ART. 9. Any officer or soldier who shall strike his superior officer, or draw or lift up any weapon, or offer any violence against him, being in the execution of his office, on any pretense whatsoever, or shall disobey any lawful command of his superior officer, shall suffer death, or such other punishment as shall, according to the nature of his offense, be inflicted upon him by the sentence of a court-martial.

ART. 10. Every non-commissioned officer or soldier, who shall enlist himself in the service of the United States, shall, at the time of his so enlisting, or within six days afterward, have the Articles for the government of the armies of the United States read to him, and shall, by the officer who enlisted him, or by the commanding officer of the troop or company into which he was enlisted, be taken before the next justice of the peace, or chief magistrate of any city or town corporate, not being an officer of the army, or, where recourse cannot be had to the civil magistrate, before the judge advocate*, and in his presence shall take the following oath or affirmation:

I, A. B., do solemnly swear, or affirm (as the case may be), that I will bear true allegiance to the United States of America, and that I will serve them honestly and faithfully against all their enemies or opposers whatsoever; and observe and obey the orders of the President of the United States, and the orders of the officers appointed over me, according to the Rules and Articles for the government of the armies of the United States.

Which justice, magistrate, or judge advocate is to give to the officer a certificate, signifying that the man enlisted did take the said oath or affirmation.

ART. 11. After a non-commissioned officer or soldier shall have been duly enlisted and sworn, he shall not be dismissed from the service without a discharge in writing; and no discharge granted to him shall be sufficient which is not signed by a field officer of the regiment to which he belongs, or commanding officer, where no field officer of the regiment is present; and no discharge shall be given to a non-commissioned officer or soldier before his term of service has expired, but by order of the President, the Secretary of War, the commanding officer of a department, or the sentence of a general court-martial; nor shall a commissioned officer be discharged from the service but by the order of the President of the United States, or by sentence of a general court-martial.

ART. 12. Every colonel, or other officer commanding a regiment, troop or company, and actually quartered with it, may give furloughs to non-commissioned officers or soldiers, in such numbers, and for so long a time, as he shall judge to be most consistent with the good of the service; and a captain, or other inferior officer, commanding a troop or company, or in any garrison, fort, or barrack of the United States (his field officer being absent), may give furloughs to non-commissioned officers or soldiers, for a time not exceeding twenty days in six months, but not to more than two persons to be absent at the same time, excepting some extraordinary occasion should, require it.

ART. 13. At every muster, the commanding officer of each regiment, troop, or company, there present, shall give to the commissary of musters, or other officer who musters the said regiment, troop, or company, certificates signed by himself, signifying how long such officers, as shall not appear at the said muster, have been absent, and the reason of their absence. In like manner, the commanding officer of every troop or company shall give certificates, signifying the reasons of the absence of the non-commissioned officers and private soldiers; which reasons and time of absence shall be inserted in the muster-rolls, opposite the names of the respective absent officers and soldiers. The certificate shall, together with the muster-rolls, be remitted by the commissary of musters, or other officer mustering, to the Department of War, as speedily as the distance of the place will admit.

ART. 14. Every officer who shall be convicted before a general court-martial of having signed a false certificate relating to the absence of either officer or private soldier, or relative to his or their pay, shall be cashiered.

ART. 15. Every officer who shall knowingly