Lincoln's Code

by John Fabian Witt

  For a time, Lieber’s passionate views on war cost him his close friendship with Sumner. Beginning in 1834, the two had been fast friends. For more than a decade, they wrote hundreds of letters to one another. But on July 4, 1845, Lieber sat in Tremont Temple in Boston and listened to his friend’s electrifying and controversial speech denouncing war as the moral equivalent of crime. Sumner’s address, Lieber thought, was “the worst advised, and one of the worst reasoned speeches I have ever heard,” and he told Sumner so. After several more years of increasingly acrimonious relations, the two men broke off their correspondence completely.

  Lieber took Sumner’s apostasy on war as seriously as he did because for Lieber war was a high moral calling. Sumner’s view, he thought, displayed “elevated intention, but a lack of philosophical grasp and unraveling penetration.” Lieber was no warmonger; he opposed the Mexican War, for example, even though he felt a powerful urge to enlist. But Lieber saw war as a vital part of the moral progress of vigorous nations. On his mantelpiece he kept a treasured leaf from the field at Waterloo. As a visitor to West Point, he thrilled at the march of the cadets. Indeed, for much of his adult life Lieber experienced a kind of self-loathing for living a life of ease so far removed from war. He always considered his own career of writing and teaching distinctly inferior to a life of action. The “spheres of action” of the statesman and the commanding general, he wrote, were “infinitely superior” to that of a mere professor. Lieber wanted a role “shaping history in the field, instead of teaching it in the lecture-room.” In his grandiose moments (which some thought he experienced too often), he convinced himself that he had missed his true calling. “I was born for action, and for action in troubled times,” he insisted to a friend in 1854. And when the Civil War broke out in 1861, his old instincts came flooding back. “Would to God, I, too, could act!” he cried.

  Lieber would act. So, too, as it happened, would Sumner, who in 1861 abandoned his pacifism to fight against slavery, resuming his friendship with Lieber in the process. But in the Civil War, Lieber’s contribution would be radically different from the one he had made at Waterloo.

  Clausewitz in New York

  IN 1856, Lieber resigned from his post at South Carolina College. He had always experienced life in the small town of Columbia as a kind of exile. (“Oh! my poor life!” he exclaimed more than once.) In 1851, he was passed over for the college presidency. At the same time, South Carolinians rightly began to suspect that Lieber held heterodox views on states’ rights and slavery. Francis and Matty moved to New York City with their youngest son, Norman, who was now nineteen. Twenty-one-year-old Hamilton had gone off three years before to Illinois to try his hand at farming after his failed venture at the Naval Academy. Their oldest boy, the twenty-seven-year-old Oscar, stayed behind in South Carolina.

  Francis had never felt at home in the South (“a Slave State!” he exclaimed), and was eager to try one last time to make a life in the North. To his good fortune, Columbia College in New York was establishing a law school and increasing the size of its faculty at just the time of his arrival in the city. In 1857, Columbia appointed him Professor of History and Political Science.

  The move to New York made the growing split between North and South intensely personal for the Lieber family. Oscar had lived virtually his whole life in South Carolina, and as tensions increased, he took the side of his home state. When Francis wrote to Oscar in 1860 to say that he expected to vote for Abraham Lincoln, the split in the family became irreconcilable. In March 1861, Francis learned that Oscar had enlisted in Hampton’s Legion, an elite unit of the Confederate armed forces led by Francis’s former student, the wealthy young South Carolina planter Wade Hampton. Hamilton and Norman would soon join the armed forces of the Union. “Behold in me,” Francis wrote a friend, “a symbol of civil war.”

  Francis was no less vigorous in his support of the Union war effort for his family’s split. Indeed, the sharpness of his break with Oscar may have had the opposite effect. As the spring of 1861 unfolded, Lieber concluded that the American Civil War would be one of the great conflicts in the history of civilization. To his wide circle of well-placed friends and correspondents, Lieber issued repeated calls to arms. He struck up new correspondence with members of Lincoln’s cabinet such as Attorney General Edward Bates. In 1862, he began corresponding regularly with Secretary of War Edwin Stanton. His message to all was the same. “Strike, strike and strike again,” he urged. He called on the Union “sledgehammer” to deliver “a death blow” to the rebels. “Blow upon Blow ought to be our motto,” he wrote. “Hard, Harder, Hardest.” To Attorney General Bates, Lieber urged that the Union “drive back the enemy.” He took to adorning his letters with an arm-and-hammer sketch representing the appropriate posture of the Union toward its enemy.

  Lieber delivered the same message to Lincoln himself in July when he traveled to the White House to give the president an honorary degree from Columbia College. The two men talked for a half hour, at the end of which Secretary of State Seward scolded the president for having failed to wear his afternoon coat. (“I intended to do so,” Lincoln replied, “but the Dr. will excuse me, I was not aware it was so late.”) Lieber and Lincoln ran into one another again several times that summer. “Mr. President,” Lieber said on one occasion, “won’t you give us at least a little fight?” The president’s reaction was not encouraging. (He was “evidently pained at the idea,” Lieber reported). Each time they met, Lieber worried that the president would not muster the courage to strike the South with sufficient force. Lincoln seemed to Lieber a gentle soul, “a peculiarly truthful simple hearted man.”

  LIEBER’S ENTHUSIASM FOR fierce measures (perhaps combined with Oscar’s enlistment in the Confederate Army) focused his attention more closely than ever before on the moral limits of war. The subject was not entirely new to him. In his earlier writing on war, he had insisted that “war does not absolve us from all obligations to the enemy.” Those obligations, he believed, were contained in the laws of civilized war. And in the summer of 1861, he began to study the subject with greater urgency. In the weeks after Bull Run, for example, Lieber wrote influential public letters in the New York Times urging prisoner exchanges with the Confederacy and arguing that they did not entail any recognition of the South as an independent country. In this, he assured his readers, he was “guided by no false sentimentality,” nor by any sympathy for “the whining peace party,” but only by the fierce conviction that “the enemy must be beaten.”

  But as Lieber focused on the customs and usages of war, his distinctive views about war led him to striking departures from the orthodoxy in the field. Lieber unveiled his thinking on the laws of war in a lecture course he initiated at Columbia College’s new law school in the fall of 1861. Titled “The Laws and Usages of War,” the lectures drew virtually every student in the school, as well as assorted observers and members of the press. Lieber estimated his audiences at around 100 people. He took them on an epic tour of international law. He reviewed customs for the treatment of prisoners, the distinction between soldiers and noncombatants, and the use of tactics such as poison and assassination. The lectures were long and rambling, but they held the attention of his listeners. For an entire term, from October 1861 into March 1862, Lieber’s lectures were carried in the New York Times and reprinted in newspapers across the country.

  According to their author, the lectures promised simply to restate the customs of civilized war as they had developed since the middle of the eighteenth century. But his uncharacteristic modesty masked a deeper ambition. Lieber aimed not so much to restate the law of war as to seize it back from the peace societies and their mawkish fellow travelers. As Lieber saw it, Enlightenment jurists such as the Swiss Vattel—“Father Namby Pamby,” Lieber called him disdainfully—had led thinking about the laws of war badly astray. Their mistake, Lieber thought, was separating the regulation of conduct in war from the justice of war’s aims. Vattel and his followers had developed an array
of hard-and-fast rules to allow for a law of war that could regulate conduct in armed conflict without reference to the legitimacy of the war aims of either side.

  Lieber jettisoned Vattelian orthodoxy in favor of an updated version of the very approach Vattel and his followers rejected. He would measure an act’s permissibility by reference to its intended object. He would, in other words, relate means to ends in a way that took ends seriously.

  Lieber began his lecture series with an arresting idea: the extended European world had suddenly entered a period of war, “a period of peculiar martial character,” after a long era of peace. For decades, since 1815, observers had hoped that war might not visit Europe and its former colonies again. Peace societies had flourished. Men had dreamed of an International High Court that would deliver peaceful resolutions to the kinds of disputes that had once led to war. Following the philosopher Immanuel Kant, men had written of “perpetual peace,” and though Lieber told his audience that Kant’s essay on the topic was one of the philosopher’s “least profound works,” it was representative of what Lieber called “the Happiness Period” of human history, an age that aimed to minimize suffering and maximize human happiness. But Lieber insisted that “utilitarian happiness” was not the greatest good. “Freedom, right, truth, justice, real culture, purity, and humanity”—all these values “stand far higher” than happiness or wealth, he insisted, and sometimes they demanded the use of force in their defense. “Freedom,” Lieber announced, “is a goddess who cannot afford to sheathe her sword forever.”

  The goddess of war seemed to have returned to the field with a vengeance. War had visited North America in the Mexican conflict of 1846. It split Europe into warring factions in the Crimea in 1854. It pitted Austria against France in northern Italy in 1859. Now it had occasioned civil war in the United States, and Lieber heard the rumble of war drums in Europe, too, as his native Prussia surged toward German unification. But by Lieber’s lights, the grave new era of war held within it a new promise of redemption for Europe and America alike. The period of prolonged peace had “thrown us into a trifling pursuit of life.” It had undermined the moral character of the European world and had “loosened many a moral bond.” War would be “a grave school-master.” It would teach Americans to be morally vigorous just as it had fostered the virtue of the founders.

  War could accomplish these rigorous ends, Lieber believed, because properly understood it did not consist of lawless and undisciplined violence. War existed within a system of constraints that had developed over centuries in the European world, much as the common law had developed incrementally in England and the United States. The laws and usages of war thus comprised practices that had recommended themselves over time to the common sense of mankind. To be sure, these laws often functioned quite differently than the ordinary law of a particular nation. The laws of war, Lieber explained, were not “a rule of action, unconditionally prescribed by higher authority.” After all, “there was no higher authority”—that was the very nature of relations between nations. It was what distinguished a dispute between countries from a dispute between individuals. But the absence of higher authority—the absence of a common judge—hardly meant that war was governed by “the law of mere force.” That would be no law at all. To the contrary, what made the laws and usages of war significant was that they could not be violated without incurring “the general hostile opinion of mankind”—and without giving an enemy the right to retaliate in return.

  BUT WHAT WERE the laws and usages of war? In his lectures at Columbia in the fall and winter of 1861–62, Lieber proposed a stark rule. The only question of law, he announced, was a simple one: Was the destruction “greater than necessary”?

  Cruelty—inflicting pain for its own sake—was not permitted, because cruelty was the opposite of necessity. Cruelty consisted of the “unnecessary infliction of pain, pain for its own sake to satisfy the lust of revenge or a fiendish hatred.” But the rule against cruelty left vast room for destruction and violence. The use of poisons, for example, was clearly forbidden, according to Vattel and his followers. Lieber conceded that there was “something fiendish” in their use. But it did not follow from this that the laws and customs of civilized war set poisons outside the pale. It might well be, Lieber observed, that there were very few situations in which poisons were necessary. But who was he to say that there were none? Where a weak nation was put to the task of preserving its very existence against a ruthless enemy, for example, and where that object could only be obtained “by poisoning wells and by no other means,” Lieber could not see “why it would not be lawful to resort” to such a course of conduct, terrible though it would be.

  In his lectures, Lieber allowed one important but narrow exception to the necessity principle: torture. Some kinds of pain counted as cruel even where the pain was inflicted for the sake of the war effort. “No doubt,” Lieber said, “the whole world would condemn it as cruel, if pain were inflicted upon an enemy to extract an important secret—e.g., by application of torture.” Torture was not allowed in civilized war, not even against savages. “Can we roast Indians,” Lieber asked rhetorically, “though they may have roasted one of our own?”

  Here then was a compelling but potentially ferocious framework for the laws of war. Outside of torture, virtually all destruction seemed permissible so long as it was necessary to advance a legitimate war effort. The law thus permitted the use of any weapon, including “those arms that do the quickest mischief in the widest range and in the surest manner.” And it did so for a simple reason. As Lieber said more than once in the course of his lectures, short wars were more humane wars, and the way to ensure short wars was to fight them as fiercely as possible. The prospect of fierce wars might even prevent war from breaking out in the first place. It was thus critical that statesmen “not allow sentimentality to sway us in war,” he warned. “The more earnestly and keenly wars are carried on, the better for humanity, for peace and civilization.”

  The idea seemed innocuous enough. But the notion that short and sharp wars were more humane represented a deeply subversive critique of the system of humanitarian limits in wartime. It meant that humanitarian limits might be not merely ineffective but pernicious, increasing war’s horrors, not diminishing them. For centuries, unsentimental statesmen had articulated this very critique of the laws of war. Machiavelli had called for wars that were “short and strong” (“corte e grosse,” he said). Frederick the Great advocated wars that were “short and lively” (“kurz und vives”). In the nineteenth century, international jurists sometimes despaired that nothing could be done to lessen war’s calamities “but to make the calamity shorter at the cost of making it fiercer and more terrible.” But if the sharp war thesis was correct, it called into question the very idea of humanitarian constraints in war.

  THE LAW OF WAR’S fiercest nineteenth-century critic was the Prussian military genius Carl von Clausewitz. Clausewitz served in the Prussian army in the wars of 1793 and 1794 and then again in the wars of Napoleon. After Prussia’s defeat in 1806, he briefly joined the Russian army to continue the fight against the French. In the years after 1815 he served as director of the military school at Berlin.

  Clausewitz argued that rules existed to govern the details of a campaign: for the “minutiae of service,” things like “telling us how to set up a camp or leave it, how to construct entrenchments, etc.” But rules could not tell men how to act in moments of extremity. Criticizing Baron de Jomini’s system of arithmetic propositions for military strategy, Clausewitz insisted that there were “no rules for conducting a campaign or fighting a battle.” The lawless condition of battle vitiated legal rules, too. In his book Vom Kriege (On War), published posthumously in 1832, Clausewitz insisted that the “international law and custom” of warfare was barely perceptible; indeed, he dismissed it as “hardly worth mentioning.” In the harsh world of war, Clausewitz warned his countrymen, it was simply foolish to dull one’s sword “in the name of humanity.” If we d
id such a thing, he stated bluntly, “sooner or later” an enemy would “come along with a sharp sword and hack off our arms.”9

  Historians have usually thought that Clausewitz’s fierce views became influential in the United States 100 years after the Civil War, following publication of a new American translation of On War in 1943. Clausewitz’s writings were not available in English at all until ten years after the Civil War, when an English edition was published in London. But Lieber knew the work of his fellow Prussian even before the publication of the German-language first edition of Vom Kriege, and Clausewitz’s views had a powerful influence on his thinking as early as the late 1820s. Clausewitz famously said time and again in his writings that war was “the continuation of politics by different means.” Lieber thus thought of war as continuous with peacetime politics, not (as Vattel and his followers had argued) a separate domain of social life (the “state of war”) with a moral and legal logic of its own. Lieber understood war as a way of achieving political ends. The force brought by warring armies, he argued, was a species of the same coercion exercised all the time within countries by courts and the police. Clausewitz wrote that war was “an act of force to compel our enemy to do our will.” Lieber recited Clausewitz’s definition and agreed, writing that war was fought against an enemy “to compel him to peace at my will,” and argued that so long as this was the goal, armies had “a right to use all means” suited to that end.