LAWS OF WAR, The. A comparison of the laws of war as they exist to-day with those which governed the conduct of belligerents 100 years ago will reveal one striking difference, namely, whereas, the law to-day is in large part written, a century ago it was for the most part unwritten. Aside from occasional stipula tions in treaties dealing with such matters as the treatment of enemy subjects at the out break of war, the exercise of the right of search and capture, what goods should be treated as contraband and the like, the law of war consisted mainly of custom and usage, the evidence of which was found in the treatises of text writers and in the decisions of prize courts. Naturally, the text writers and jurists were not always in agreement as to what cus tom and usage permitted and what it forbade and even where there was agreement the recog nized rules were not always known to military or naval commanders.
During the past 50 years out of this mass of custom and tradition a large body of written law has developed, the greater part of which is now embodied in the texts of international conventions and declarations which have re ceived the formal assent of the great body of states, and in official manuals or ordinances issued by states for the information and guid ance of their military and naval commanders. What may be regarded as .the starting point in the process by which the law of war has thus far been reduced to written form was the promulgation by Presiden Lincoln in 1863 of General Orders No. 100 entitled, qnstruc tions for the Government of the Armies of the United States in the Field." In the main, these •instructions" were prepared by Dr. Francis Lieber, a distinguished publicist of German origin, who in early life emigrated to the United States and was for many years a professor in South Carolina College. The code prepared by him consisted of 157 articles which defined the limits of military authority and presented in more or less detail the rights and duties of military commanders in time of war. The effect was to limit the arbitrary powers of commanders and to remove the ex cuse for violations of The law of nations on account of their ignorance as to what custom and usage required or uncertainty as to its meaning. The promulgation of these '
received high praise from the great jurists of the time, they formed the basis of the regula tions adopted by the Brussels Conference in 1874 and they unquestionably exerted great in fluence upon the subsequent development of the laws of war. They remained in force until 1914 when they were superseded by a new manual entitled the 'Rules of Land War fare,) which are largely a revision of Lieber's code. What was vital and important in Lie bees code was retained, what was obsolete was omitted and the provisions of the new manual were brought into harmony with the great' in ternational conventions adopted at Geneva and The Hague.
A few other governments followed the ex ample of the United' States, and in 1899 the first Hague Conference impressed by the de sirability of each state having a code of this kind inserted in its convention respecting the laws and customs of war on land an article making it the duty of the contracting parties to issue instructions to their armed forces, which instructions should be in conformity with the regulations annexed to the Convention. The British government had already as early as 1884 issued a manual of military law and this manual was now reissued and brought into harmony with the rules'of the Hague Carmen don. The governments of most other coun tries have done likewise. In 1902 the German government issued a manual of the laws of war entitled, im Landktiege) prepared by the Great General Staff. This manual has been much criticized not only be cause of the extreme views set forth by its authors in regard to the rights of belligerents, military necessity, the means that may be em ployed in the conduct of war, etc., but because it ignores many important provisions of the Hague Convention, to which such manuals are required to conform, repudiates outright some of them and dismisses others still with the statement that they are good enough in theory but that they will never be observed in practice by belligerents. In this respect it forms a' striking contrast to those of the United States, Great Britain and France, the provisions of which conform in every essential particular to the regulations annexed to the Hague Con vention.