Lincoln's Code

by John Fabian Witt

  Yet as Lieber read him, Clausewitz did not endorse an abandonment of moral standards in wartime altogether. In war, Lieber told his students, “morality floats above the whole.” Where Vattel and his followers had crafted a specialized body of moral norms peculiar to the condition of war, Lieber took Clausewitz to mean that the moral obligations of ordinary life extended to armed conflict. Killing was permitted in wartime, for example, but only when killing in war was justified according to ordinary morality, not because war permitted things that would otherwise have been unlawful. The key idea Lieber drew from Clausewitz was that to know whether a killing was justified, one had to know why it had occurred. Clausewitz thus offered an approach to thinking about the moral obligations of men in war that eschewed the quintessential strategy of the Enlightenment jurists. In Vattel’s separate legal domain of war, legal constraints were indifferent to the moral significance of a soldier’s cause. Clausewitz’s theory, by contrast, asked the statesman, the general, and the soldier to take the objectives of their conduct into account at all times. Ends, in Lieber’s view, could not be separated from means; to the contrary, they helped determine the scope and character of the conduct appropriate to the situation. For something so destructive as conduct in war, only weighty objectives would suffice as a justification. Even the weightiest ends, Lieber declared emphatically, did not justify means such as torture.

  OF COURSE, means and ends were not mere abstractions for Lieber and his family. As Francis’s law lectures wound down in February 1862, he and Matty followed every movement of their son Hamilton’s 9th Illinois. With a mixture of pride and worry, they read the newspaper coverage of Ulysses S. Grant’s move down the Tennessee and Cumberland rivers into the heartland of the South. They rejoiced at the Union victory at Fort Henry on February 6. They celebrated word of Fort Donelson’s capture. But the news from the West soon brought bad tidings. Hamilton was among the wounded.

  Guerrillas in Missouri

  COUNTLESS FATHERS SEARCHED for wounded sons in the aftermath of Civil War battles. The Boston poet and physician Oliver Wendell Holmes sought out his wounded son, the future Supreme Court justice of the same name, not once but twice. In the elder Holmes’s account, published in the Atlantic Monthly in late 1862 after the battle at Antietam, the train to Maryland was packed with fathers seeking sons. In a war in which medical care was not far advanced beyond what it had been 100 or 200 years before, parents wanted desperately to rescue their young men from Civil War hospitals full of the wounded and the dying.

  Most parents would barely have known where to begin their search, and Francis Lieber was no exception. Administrative chaos reigned in the new mass armies of the Union. On the eve of the war, some 16,367 officers and enlisted men served in the U.S. Army. Such numbers could not even begin to match the scale of the Civil War. In July 1861, the Congress authorized an army of half a million volunteers. By the end of the war, more than 2 million men would serve in a Union uniform and 1 million more would fight in the Confederate States Army. The infrastructure for these modern armies had barely been imagined, let alone put into place. Union wounded at Fort Donelson, for example, went to at least half a dozen different places, with no centralized information source or tracking mechanism for keeping records on who went where. And so when Francis Lieber went on his frantic search for Hamilton, he could not find him. (Later that year, Holmes the father would travel in circles for days before finding his son.) Hamilton was not at Cincinnati, where Francis went first. He went next to St. Louis, where he was directed on to Mound City. After ten days of walking through Union hospitals and peering into ambulances, Francis at last found Hamilton recuperating in a makeshift Union hospital. “I knew war as [a] soldier, as a wounded man in the hospital, as an observing citizen,” he told Sumner; but he had only now learned it as “a father searching for his wounded son.”

  FRANCIS LIEBER’S ANXIOUS search produced a fortuitous reunion. Francis had almost forgotten, but on one of his usual summer trips to the North in July and August of 1845, he had dined regularly at the U.S. Army installation on Governors Island in New York Harbor. The main topic of conversation had been Charles Sumner’s controversial antiwar speech, which had been delivered only a few weeks before. Lieber’s dinner-table denunciations of Sumner and the peace societies had powerfully impressed a lieutenant of engineers named Henry Halleck. Now, seventeen years later, Halleck was stationed in St. Louis commanding the Union Army’s Department of the Missouri. It was Halleck who directed Lieber to Mound City and to his son Hamilton.

  The old acquaintances quickly struck up a renewed correspondence, for Halleck found himself in need of Lieber’s expertise. Halleck was an engineer trained in the orthodox West Point style. His views of war rested on the rational geometry and engineering axioms that dominated the Academy’s antebellum curriculum, not on the rule-defying art of the Prussian Clausewitz. Clausewitz had emphasized the irreducibly contingent and probabilistic character of war. But Halleck had entered the war believing with Jomini and against Clausewitz that “war is not, as some seem to suppose, a mere game of chance.” War, he had written, constituted “one of the most intricate of modern sciences.” The general who understood how to apply its rules and principles, Halleck thought confidently, could “be morally certain of success.”

  On the very eve of the war, Halleck wrote a long book that adopted a similarly tidy view of the legal rules governing warfare. The book, titled International Law; Or, Rules Regulating the Intercourse of States in Peace and War, described a law of war that had proved capable of channeling war into fixed and durable configurations. In the laws of war at sea, he insisted, the law had “been rendered clear, definite, and stable.” The laws of war on land, he thought, had also witnessed crisp moral triumphs. Statesmen and generals alike, Halleck affirmed confidently, were “bound by rules” that governed “the conduct of hostile forces.”

  Yet by early 1862, when Halleck was reunited with Lieber in St. Louis, the aging engineer’s confidence in the laws of war had begun to waver. In Halleck’s Missouri, the Civil War was veering rapidly away from the orderly warfare described in Jomini’s theories and in Halleck’s treatises. Indeed, after October 1861, when Major General Sterling Price and the pro-Confederate Missouri State Guard withdrew from the state, there hardly seemed to be an army to fight. Instead, bands of irregular soldiers and armed Confederate sympathizers vied with Union-allied Kansas jayhawkers and antislavery Missouri men in a bitter partisan conflict inside Union-controlled Missouri. Confederate fighters ambushed Union detachments. They struck in Sedalia and Warrensburg in the west of the state, where terrorist violence between proslavery bushwackers and free state jayhawkers had been going on ever since the savage violence of 1854 and 1855, when proslavery forces had battled abolitionists such as John Brown to decide whether neighboring Kansas would be a slave state or free. They struck in Springfield in the south of the state. They struck in Palmyra in the northeast. Union supply lines were often vulnerable to attack. But guerrilla violence aimed at defenseless civilian targets as well. Guerrillas engaged in indiscriminate violence against Union soldiers, prisoners, and civilians alike. In attacks by increasingly notorious guerrillas like Bloody Bill Anderson and William Quantrill, Union soldiers reported encountering grim evidence of mass executions and the mutilation of bodies.

  Guerrillas such as the infamous William Quantrill harassed Union sympathizers in and around Missouri from 1861 onward. Here Harper’s Weekly depicts Quantrill’s raid on Lawrence, Kansas, in 1863.

  As Union forces began to occupy substantial parts of the South, irregular warfare became more widespread. The influential southern magazine De Bow’s Review had supported partisan-style warfare from the outset of the conflict, and now its editors urged that the South abandon “all fastidious notions of military etiquette” and expel the Union “by every means.” Irregular bands sprang up in western Virginia and eastern Tennessee in the fall of 1861 and in the rest of Tennessee by February 1862. By April, they were appea
ring in and around Union-occupied New Orleans and in northern Louisiana and Arkansas. By the early summer, Union incursions into northern Alabama and Mississippi occasioned the formation of irregular self-defense companies there too. Later in the summer, guerrilla units rose in eastern North Carolina in and around New Bern. Everywhere Union soldiers went, citizens who seemed loyal Unionists by day turned into Confederate irregulars by night.

  In the spring of 1862, the leadership of the Confederacy decided to authorize and expand the irregular effort. In April, the Confederate Congress enacted the Partisan Ranger Act, which authorized Jefferson Davis to commission officers to form “bands of partisan rangers” who were to be in the service of the Confederacy, paid by the Confederacy, and subject to “the same regulations as other soldiers” in the Confederate armies. Similar calls for guerrilla units followed quickly in places like Arkansas and Missouri. Statesmen like Davis and General Robert E. Lee had been reluctant to adopt partisan warfare. Such men had been critical of guerrilla warfare in Mexico a little more than a decade before. But Union occupation of substantial parts of the South left them with little choice. Davis in particular hoped that putting the irregular bands of local defenders on an official footing would make such groups more effectively controllable from Richmond. But very soon such hopes proved unwarranted.

  Southern expansion of the irregular war efforts produced new cycles of violence. Prominent southerners talked wildly of mounting irregular invasions of the North that would devastate civilian resources; Edmund Ruffin of Virginia urged that guerrillas “might lay waste to Philadelphia with fire and sword, or lay Cincinnati & even Chicago in ashes.” And for a while, it looked as if Ruffin’s terrible dream might come true. For virtually the entire month of July 1862, John Morgan’s brigade raided north past Union lines into Kentucky, nearly reaching Cincinnati, and disrupting Union operations the whole way. The expansion of irregular forces also occasioned a sharp rise in indiscriminate violence. More cautious observers than Ruffin worried that Confederate guerrillas were turning out to be “robbers and jayhawkers” who competed with Union troops in “plundering, devouring and wasting the subsistence of loyal Southerners.” Confederate brigadier general J. O. Shelby in Arkansas condemned the irregulars who served in his district as having “no organization, no concentration, no discipline, no law, no anything.”

  On the other side, Union soldiers in southern territory began to act as U.S. troops had in Mexico in 1847. Already in 1861, the proslavery Missouri Republican decried the “hurricane violence” of Union reprisals that had shed “the blood of friends and kindred” throughout the state. Halleck complained to Secretary of War Edwin Stanton about Kansas jayhawkers (“robbers,” Halleck called them) who wore Union uniforms and received Union pay, but whose “principal occupation for the last six months seems to have been the stealing of negroes, the robbing of houses, and the burning of barns, grain, and forage.” In northern Alabama, Union forces under Major General Ormsby M. Mitchel burned the town of Paint Rock in retaliation for guerrilla attacks on Union transport trains. That same month, May 1862, Colonel John Basil Turchin—a former Russian army officer who had served the czar in the Crimean War—allowed his troops to sack the town of Athens, Alabama, in retaliation for civilian participation in a Confederate cavalry attack. In September, William Tecumseh Sherman ordered the burning of Randolph, Tennessee, after guerrillas fired on an unarmed Union mail steamer there. When his regiment returned from torching the town, Sherman simply reported to his commander that Randolph was gone.

  CAUGHT IN THE maelstrom of irregular warfare, Union commanders cast about desperately for solutions. As early as August 1861, Major General John C. Frémont (Halleck’s predecessor in Missouri) declared martial law and announced that he would execute “all persons who shall be taken with arms in their hands” within Union lines. In December, Halleck ordered the same treatment for persons “not commissioned or enlisted” in the Confederate service; they would be tried as criminals, for it was a “well-established principle” that only those men “duly enrolled in the service of an acknowledged enemy” were entitled to prisoner of war status. “Insurgents and marauding, predatory, and guerrilla bands” were “not entitled to this exemption” from the criminal laws. Such men, by the laws of war, were “regarded as no more or less than murderers, robbers, and thieves,” and nothing in their “military garb” or their assumed company name could “change the character of their offenses” or “exempt them from punishment.”

  Halleck’s position in late 1861 and January 1862 drew on the orthodox view of who counted as a soldier. For more than a century, the law of who was entitled to fight in war had been simple: the duly authorized soldiers of sovereign states were entitled to go to war. The English jurist William Oke Manning stated the basic rule in 1839 when he wrote that legal violence in war was “only allowed” by those who were “expressly authorized” to act “by the sovereign power.” The German Georg Friedrich von Martens had said the same thing a few decades earlier. The Swiss Vattel wrote that only “a commission from their sovereign” afforded men “such treatment as is given to prisoners taken in regular warfare.” And on the eve of the Civil War, Theodore Dwight Woolsey, the president of Yale College, said that the laws of war offered no protection to those who fought “without a sanction from their governments.” Halleck’s own book, International Law, adopted the same rule: “partizan and guerrilla troops” who fought without “commissions or enlistments,” he wrote, were not entitled to the privileges of the laws of war; when they were “authorized and employed by the state,” however, “they become a portion of its troops.”

  It was no wonder, then, that in the winter 1861–62, Halleck distinguished between those men who were “commissioned or enlisted” in the Confederate Army, on one hand, and self-organized guerrilla bands, on the other. But the official Confederate embrace of partisan rangers in the spring of 1862 revealed a potential flaw in the orthodox Enlightenment approach. For what the Confederacy had shown in the Partisan Ranger Act was that a belligerent could very easily extend commissions to irregulars and thus give them the status of soldiers deserving prisoner of war treatment. Moreover, a belligerent could do so without changing the behavior of the irregulars at all. Halleck’s own book had suggested—indeed, it had stated clearly—that commission or enlistment was the key criterion. But now this view seemed impossibly naive. Merely issuing “commissions or licenses” to the bandits who terrorized the state, he now reasoned, ought not change their legal status. “You must be aware, general,” he wrote reprovingly to his Confederate counterpart Sterling Price, “that no orders of yours can save from punishment spies, marauders, robbers, incendiaries, guerrilla bands, etc., who violate the laws of war.” Halleck’s conclusion was firm: “You cannot give immunity to crime.”

  Price replied that his men were “specially appointed” and instructed to act in accordance with “the laws of warfare.” In Arkansas, Confederate general Thomas C. Hindman likewise insisted that official recognition transformed criminal guerrillas into legal soldiers. His irregulars, he told Union colonel Graham N. Fitch, were “recognized by me . . . as Confederate troops,” and Hindman asserted “as indisputable” his right “to dispose and use those troops” as he saw fit. “We cannot be expected to allow our enemies to decide for us,” complained another Confederate general later in the year, “whether we shall fight them in masses or individually, in uniform, without uniform, openly or from ambush.”

  The problem of the partisan rangers sprang up in western Virginia, too, where Governor John Letcher argued that all those “acting under the authority” of Virginia, “with commissions issued in pursuance of law and under the seal of the State,” were entitled to protection as soldiers and prisoners of war. Confederate secretary of war George Randolph agreed and fiercely defended the partisan rangers against the accusation that they were not soldiers entitled to the protections afforded to soldiers. The stakes were very real. For if the Union were to execute men carrying Con
federate commissions, the Confederacy would retaliate in kind against Union soldiers in Confederate custody.

  EVEN AS THE controversy over guerrilla warfare was heating up, Matty and Francis Lieber received heartrending news from Virginia. In late June they learned that their oldest son, Oscar, had been killed while fighting for the South in the Battle of Williamsburg. “Civil war,” Lieber wrote to his rediscovered friend Halleck, “has thus knocked very loudly at our door.”

  Personal tragedy notwithstanding, Lieber’s importance in the Lincoln administration was growing. Behind the scenes in 1861 he had helped to organize the administration’s defense of its suspensions of the writ of habeas corpus. Now, in the summer of 1862, President Lincoln and Secretary of War Stanton promoted Lieber’s friend Halleck to general-in-chief of the Union armies. Halleck and Stanton began to call on Lieber to solicit his advice on some of the most difficult questions of the war effort.

  As one of his very first acts as general-in-chief, Halleck asked Lieber to prepare a formal memorandum of the international laws of war governing the guerrilla controversy. Lieber threw himself into the task, and in a week’s time, he sent Halleck a long essay entitled Guerrilla Parties Considered with Reference to the Laws and Usages of War. Halleck liked it. (“I highly approve,” he told Lieber.) Before the month was over, the general-in-chief had ordered 5,000 copies for distribution in the Union armies. The document would help guide Union policy toward irregular fighters until the end of the war.