The best developed argument on this score came from an unlikely source on the other side of the Atlantic. John Elliot Cairnes was a distinguished professor of jurisprudence and political economy at Queen’s College, Galway, in Ireland. Just two years before the war, Cairnes’s friend the British philosopher John Stuart Mill had forcefully observed that the laws of civilized war did not apply in war with savage peoples. Mill made the observation in the course of defending the use of force in the far reaches of the British Empire. As a description of the limits of the European tradition, he was right. If one thing was clear, it was that the rules of civilized conflicts were inapplicable in fighting against savages and barbarians. This was the basis for Jefferson Davis’s argument that enlisting black soldiers against the Confederacy was an act of barbaric warfare.
Cairnes’s insight was to see that the same idea Mill invoked for the wars of empire and that Davis used to demonize the North could be turned against the South. As the war of words over Emancipation heated up, Cairnes contended that the barbaric people were not the slaves but the slaveholders. Slaveholding was a backward institution, he insisted, at odds with the moral progress of the modern world. It sapped the moral fiber of peoples who practiced it. And if the slaveholders were barbarians, Cairnes asked, then why should the laws of war bind those who fought against them any more than it did those who fought against the savages and barbarians of faraway lands?
Cairnes’s book was instantly reprinted in the United States, and it garnered widespread interest and much favorable attention. Lincoln himself referred to Cairnes’s idea when he wrote a draft resolution to be issued by English supporters of the Union cause. No state founded on “human slavery,” Lincoln proposed in early 1863, should “ever be recognized by . . . the family of Christian and civilized nations.” Lincoln’s main interest here was to hold off the continuing threat of English recognition of the Confederacy as an independent nation. His careful choice of words suggested a further step: refusing recognition not just as a state, but as a civilized state, a member of the “family of . . . civilized nations.” Lincoln may not have started out as an expert in the international laws of war. But he was learning fast, and he knew very well that only “civilized nations” were entitled to the rules that attached in violent squabbles within the family of European states.
By the time Lincoln proposed his 1863 resolution, however, he also knew that implementing Cairnes’s approach was impossible as a practical matter. From the collapse of the privateering prosecutions in late 1861 onward, the president had come to understand that he could not treat the South as categorically outside the laws of war except at terrible cost. Davis would no doubt retaliate in kind against captured Union soldiers for any punishment of Confederate soldiers. In a world in which tens of thousands of Union prisoners were in Confederate hands, Lincoln would have to work inside the laws of war. His administration would need a different response to Jefferson Davis’s position on Emancipation and black soldiers.
BY THE SUMMER of 1862, Francis Lieber had emerged as the Lincoln administration’s closest adviser on matters relating to the laws of war. Lieber shared Cairnes’s view of slavery as a deeply backward institution. He shuddered when he saw slaves punished by their masters and families separated by sale. Slavery, he thought, was antithetical to the moral progress of the age. “It is not the North that is against you,” he wrote in an unsent letter to the aging defender of slavery John Calhoun in 1850; “it is mankind, it is the world, it is civilization, it is history, it is reason, it is God, that is against slavery.” The South’s peculiar institution was akin to barbaric practices the world over such as polygamy and concubinage, all of which Lieber thought were dying out across the civilized world. Slavery would soon follow. “The whole movement of history,” he said, was against it.
Such ideas were commonplace in the North in 1862. Yet Lieber was differently positioned from most who held this view. For Lieber had been a slaveowner himself only a few years before. Shortly after arriving in South Carolina in 1835, he had spent $1,150 on two slaves: a woman named Betsy and her daughter Elsa, whom he bought from a slave dealer at the state courthouse in Columbia. In his diary he noted their “good looks” and “healthy, cheerful, and bright appearance.” Over the next twenty years he bought more slaves, carefully checking their teeth to gauge their health and examining their backs for signs of whipping to judge their behavior. When Elsa and her baby died in childbirth, Lieber observed privately that the deaths cost him “fully one thousand dollars—the hard labor of a year.” Lieber failed to note that a successful birth of the child, who under the slave law of South Carolina would have belonged to him, would have yielded a fabulous return on his initial investment.
Lieber excused his ownership of slaves by reasoning that in a place where slavery existed, it was better to own slaves and treat them well than to leave them to other, less benign owners. During his South Carolina years he had defended southern slaveowners’ treatment of their slaves and condemned radical abolitionism. His erstwhile friend Sumner had accused him of becoming “a proslavery man.”
Perhaps because of his own experience with slavery and with living in the South, or maybe because his late son had fought on the side of the rebels, Lieber was unwilling to conclude that the slaveholding South was ineligible for the laws of civilized warfare. To the contrary, Lieber saw the war as an opportunity to increase the prestige and significance of the laws of war. Early in the conflict, he proposed an international congress of jurists to resolve open questions in the laws of civilized warfare. If not an international congress, then Lieber suggested to Sumner “a little book on the Law and Usages of War.” (“A catechism for belligerents and neutrals,” Lieber called it, though he assured Sumner that his idea arose from “no sickly philanthropy” or “morbid feeling about war.”) Lieber took up the subject of prisoner exchanges and the law in the pages of the New York Times. The lectures Lieber delivered in New York in the fall and winter of 1861–62 put the laws of war at the center of the conflict. He hoped to make the Civil War an epochal war for civilization, the capstone of centuries of moral development.
If civilization abhorred slavery, it followed for Lieber that slavery could not possibly be protected by the law of war among civilized nations. Slavery, he thought, was a creature of the laws of particular nations, and backward-looking ones at that. War, however, took place in what Lieber (following many before him) called the state of nature, where no one nation’s laws could claim authority. Slavery was therefore at great risk in wartime. After the Mexican War, for example, Lieber had written that slavery did “not exist in conquered Territories” unless authorized in new affirmative legislation by the conquering state.
Lieber’s view had powerful implications for the status of slaves arriving in Union lines. Along with Thurlow Weed and Senator Henry Wilson of Massachusetts, Lieber visited Fort Monroe and discussed the problem of fugitive slaves with General Benjamin Butler. Lieber thought the term “contraband” was ill adapted to the problem, though he agreed that it had been taken up into the culture “amazingly.” The true principle, Lieber contended, was that when fugitive slaves came into Union lines, they instantly “must be, and are by that fact, free men,” whether or not they were useful for the Confederate or Union war efforts. The race of the slaves made no difference. Since “war is carried on by the law of nature,” no nation was bound to recognize the racial status laws of any other, let alone of an enemy. The “law of nature,” he insisted, “does not acknowledge difference of skin.”
Lieber’s law lectures concluded with a long treatment of the status of slaves in wartime. Following Montesquieu and Blackstone, he condemned the traditional justification for slavery as arising from the capture of prisoners of war. When a fugitive slave presented himself for protection to a military commander, Lieber explained to his students, the commander had no capacity and indeed no authority to apply the enemy’s “peculiar” laws authorizing slavery. Any such fugitive was therefore necessar
ily free. Soon Lieber was collecting notes for his friend Sumner to show that John Quincy Adams had erred as secretary of state in the 1810s and 1820s when he said that the usages of civilized war prohibited the emancipation of fugitive slaves.
Lieber’s outspoken position on the implications of the laws of war for slavery soon attracted the attention of the Lincoln administration. Lieber had been scandalized in 1861 when McClellan promised to put down servile insurrections with the Army. Did McClellan propose, Lieber wondered, to “step back and fight the masters again” once any such slave insurrection had been suppressed? A year later, when Edward Stanly, Lincoln’s military governor for eastern North Carolina, began returning fugitive slaves to their putative owners, Attorney General Bates asked Lieber for a formal opinion on the status of slaves in wartime. Lieber’s opinion, which ran in newspapers in New York and Chicago, drew on his lectures to argue that fugitives who reached Union lines were free. In the laws of war, Lieber argued, “men stand opposed to one another in war simply as men.” Their legal status as husbands, employees, servants, or slaves, fell away “like scales.” When “a negro presents himself to our troops as coming from the enemy and claiming our protection,” he was therefore a free man. A month and a half later, at the beginning of August 1862, Secretary Stanton asked Lieber to prepare a formal opinion on the “military use of colored persons.” Lieber quickly produced another memorandum arguing that the use of slaves in armies was admitted by the “acknowledged law of war,” and urging that the Union Army make more organized use of them in the war effort. By 1863, he was arguing that the enlistment of blacks was “one of the historic facts” of the war. “If only we can prevent regular servile war,” Lieber wrote, “it would be very desirable.”
AS 1862 CAME to a close, Lieber’s views on the slavery question became more salient than ever. Even as the Union began to arm black soldiers in earnest, and even as Thomas Higginson drilled his South Carolina Volunteers, Jefferson Davis issued proclamations excoriating the impending emancipation and ordering that armed “negro slaves” (and the commissioned officers found serving with them) be treated as criminals and delivered to state authorities for prosecution. Rumors began to circulate in Washington that the Confederacy was selling into slavery black freemen captured alongside Union forces. News reports suggested that Confederate soldiers had even begun to execute black teamsters accompanying surrendering Union troops. (The reports, it turned out, were true.)
All of this put enormous pressure on the Lincoln administration as January 1—the appointed day of Emancipation—drew near. Radicals in the Senate demanded to know what Stanton and the War Department planned to do in response to the South’s provocations. And once the administration turned from the work of preparing its annual message to Congress in early December, Lincoln’s secretary of war and his general-in-chief Henry Halleck wired Francis Lieber in New York with an urgent message to come to Washington.
Responsible to God
THE TELEGRAPH FROM Halleck spelled Lieber’s name wrong. It was addressed to the wrong house as well. But it made its way to Lieber nonetheless, and when he arrived in Washington on December 12, Halleck and Stanton appointed him to a small board of advisers charged with revising the Articles of War. More ambitiously, they asked Lieber to draft “a code of regulations” drawn from “the laws and usages of war.”
Lieber had been lobbying men like Halleck and Sumner for more than a year to commission precisely such a code to address what he called “the most urgent issues” in the law of war. As he told a historian soon after the war, it was confusion over the status of slaves in the war that had first prompted him to call for a restatement of the laws of war. But there was no shortage of questions that needed addressing. There were still grave disagreements over the status of guerrilla fighters in places like Missouri. In the Shenandoah, Major General John Pope issued a set of harsh orders for property destruction and seizure in August 1862, orders that critics decried as beyond the pale of civilized combat. A second Confiscation Act, passed by Congress in July, had produced similarly widespread controversy over questions of enemy property in wartime. Meanwhile, Union commanders had been holding hundreds of military commissions, trying Union soldiers, Confederate soldiers, and civilians alike with virtually no formal guidance from the War Department. Joseph Holt, the judge advocate general beginning in September 1862, reached out to Lieber for guidance on problems arising in the prosecution of spies and violators of the laws of war. Prisoner of war populations were reaching new heights on both sides, raising myriad questions about their treatment. The Union had assembled a set of instructions for the treatment of prisoners early in 1862. In early December, it issued new instructions on who counted as a prisoner of war. But further questions abounded. The Confederacy, meanwhile, had adopted a policy of paroling thousands of U.S. troops on the battlefield—releasing them in return for a promise not to serve until the end of the war or until exchanged for a captured Confederate soldier. At Harper’s Ferry and at Richmond, Confederate officials had paroled 13,000 Union officers and enlisted men in September 1862 alone. The Union protested that such paroles asked soldiers to give up something they had no right to trade away, namely, their obligation to serve their nation. The paroles, Union officials suspected, were transparent attempts to transfer the costs of feeding, clothing, and housing captured soldiers over to the Union.
The men Halleck and Stanton appointed to help Lieber prepare the new code were well chosen to deal with these questions. Major General Ethan Allen Hitchcock, the grandson of Revolutionary War hero Ethan Allen and a sometime confidant of Lincoln on matters of military policy, was the Union’s commissioner for the exchange of prisoners and the drafter of the new regulations for the Union treatment of Confederate soldiers in captivity. He was also a former instructor at West Point with decades of experience in courts-martial. Major General George Cadwalader of Pennsylvania, a veteran of Winfield Scott’s army in Mexico and a lawyer by training, had been among the first Union military men to raise the question of what to do in the event of slave uprisings across the South. Major General George L. Hartstuff was a West Point graduate and combat veteran who had been shot three times, once in the chest, fighting Seminoles in Florida before the war; now he was recuperating from severe injuries he had received while leading a regiment at Antietam. Brigadier General John Henry Martindale—a lawyer from Rochester and another West Point graduate—was the military governor of Washington, D.C., and a veteran of McClellan’s failed Peninsula Campaign whose opposition to McClellan’s cautious tactics had been publicly vindicated at a court of inquiry weeks before his appointment.
Of all the men on the board, however, Lieber had far and away the most expertise on questions of the laws of war. The board gave him wide discretion to draft a set of instructions for the Union Army on the topic, and Lieber set to work almost immediately. Working closely from his lectures and his memoranda for the administration over the previous year and a half, Lieber spent Christmas in the capital working furiously on his draft. For another month he worked on it back at his home in New York among his books. It was, he thought, like nothing that had ever been written before.
I HAD NO GUIDE, no groundwork, no text-book,” Lieber later remembered. “No country,” he wrote, “has anything of the kind.”
In one sense, Lieber’s descriptions of the novelty of his project were misleading. The Prussian military’s decade-long effort to overcome the legacy of its ignominious defeat by Napoleon in 1806 had occasioned a proliferation of military manuals, many of which included shorthand information on the laws of war. Indeed, the Prussian tradition of field manuals, with which Lieber had at least passing familiarity, went back into the eighteenth century to the time of Frederick the Great. One such handbook, Das Krieges oder Soldatenrecht (The Laws of War or of Soldiers), was in Lieber’s private library.
But in a more important sense, Lieber was correct. In the modern era of the laws of war, there was nothing like the code he sat down to write. The
Prussian manuals had been concerned principally with tactics calculated to counter the military genius of Napoleon. Manuals such as the Prussian handbook Lieber owned focused on the rights war conferred on the princes of Europe, where battle served as a substitute for lawsuits in disputes between sovereigns.12 Lieber, by contrast, aimed to write a distillation of the laws of war for the age of democratic nations and mass armies.
When he was done, the code’s 157 articles covered a dazzling array of questions. The code set out procedures for flags of truce and safe-conducts. It prohibited further injury to men “already wholly disabled.” It regulated the exchange of mails and the interaction of ambassadors. It authorized the execution of spies and it detailed the offense of trading with the enemy. It permitted the conscription of local guides and set out rules for prisoner exchanges. It established special yellow markings for war hospitals. And it prescribed the procedures for armistices and surrenders. It banned assassination, which it defined as proclaiming an individual enemy to be “an outlaw, who may be slain without trial by any captor.” Drawing on his guerrilla war paper for Halleck in August, Lieber wrote that guerrillas or others who divested themselves of the appearance of soldiers from time to time, and moved back and forth between armed conflict and “peaceful pursuits,” were “not public enemies.” If captured, they were “not entitled to the privileges of prisoners of war, but shall be treated summarily as highway robbers or pirates.” And responding to the mass paroles by Confederate armies of captured Union troops in the fall at Harper’s Ferry and Richmond, the code provided that paroles were only valid if approved by a captured soldier’s government. Battlefield paroles were invalid because no soldier could trade away his nation’s interest in his own service. Prisoner paroles, the code explained, were not private agreements.
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