Lincoln's Code

by John Fabian Witt

  Indeed, by the time Stanton and Halleck had called on Lieber and his board to craft a new law of war code, Lincoln had determined to abandon the “rose-water” tactics of the war’s first year and to take full advantage of his newly expanded conception of military necessity.

  But for Lincoln, as for Lieber, stepping up the war effort did not mean abandoning limits. The president’s notion of warfare made the vital moral distinction between violence in pursuit of the war effort, on the one hand, and private violence in the name of vengeance or individual profit, on the other. In November and December 1862, when Lincoln reviewed the sentences of more than 300 Sioux Indians from Minnesota who had been sentenced to death for their roles in a massacre of white settlers in the territory, he carefully separated those who engaged in battles from the much smaller group that seemed most likely to have engaged in indiscriminate killings and crime. (When Minnesota’s governor quipped that Lincoln would have received more votes in Minnesota if he had hanged them all, Lincoln replied drily that he “could not afford to hang men for votes.”) In orders he drafted in his own hand, Lincoln authorized the confiscation of property “where necessary for military purposes,” and enjoined that “none shall be destroyed in wantonness or malice.” Later, when he defended a Union officer in Missouri against charges of unwarranted actions against the civilian population, Lincoln warned against the wanton private violence that too often followed on war’s coattails. “Murders for old grudges, and murders for self,” he observed, smuggled themselves in under the cloak of war’s violence. Men’s ideas, he said, were “forced from old channels into confusion. Deception breeds and thrives. Confidence dies, and universal suspicion reigns.” Soon “each man feels an impulse to kill his neighbor, lest he be first killed by him.” The result was “revenge and retaliation.”

  CONTAINING THE VIOLENCE of the war took on new importance for the president in the winter of 1862–63 because of his new commitment to arming black soldiers. “The colored population,” Lincoln told Andrew Johnson, his future vice president and the war governor of Tennessee, was “the great available and yet unavailed of force for restoring the Union.” Just imagine, he urged Johnson, “the bare sight of 50,000 armed and drilled black soldiers upon the banks of the Mississippi.” Such a force “would end the rebellion at once.” To Major General David Hunter in the Department of the South, whose premature proclamation on slavery he had recalled just a year before, Lincoln now wrote telling him that it was just as “important to the enemy” that a black Union Army not “grow, and thrive, in the South” as it was “important to us that it shall.”

  If blacks were to be enlisted in the Union armies by the tens of thousands, however, the Confederacy’s uncompromising stance on the impermissibility of black soldiers in civilized war would have to be addressed head-on. And that is precisely what the code Halleck and Stanton commissioned Lieber to draft aimed to do. It took up the moral theory of the war Lincoln had embraced and remade the American law of war tradition for the age of Emancipation and the era of black soldiers.

  No Distinction of Color

  NO FEWER THAN a dozen articles of the code, and arguably more, dealt with some aspect of the question of Emancipation or with the arming of blacks: more than the number dealing with torture, civilian targets, wounded soldiers, war hospitals, and spies combined. Moreover, in a code that mostly borrowed its substantive provisions from the existing literature on the laws of war, the slavery sections were the most original parts of the document.

  The slavery passages received much of the attention in the drafting stages. With the exception of a section on the laws of war in civil wars that Halleck asked Lieber to add, most of the code was approved almost exactly as Lieber drafted it, though some of its sections were reordered. Not so with the articles dealing with slavery. In February, Lieber sent out a printed first draft of the code to the members of the board and to a select group of well-placed friends. The passages he asked about were the slavery sections. Lieber readily confessed that these were the passages of which he was most proud. Even so, Halleck edited the slavery sections carefully, making important additions and omitting clauses he thought too embarrassing in view of the long history of American support for views diametrically opposed to those set out in the code. Lieber’s other correspondents wrote him about the slavery sections as well. Hamilton Fish, a trustee of Columbia College and future secretary of state under President Ulysses S. Grant, told Lieber that although most of the code merely restated “admitted principles recognized by modern nations,” the draft’s slavery provisions were “better than the Emancipation Proclamation.” Unlike Lincoln’s Proclamation, Fish thought that Lieber’s draft articles did not afford the “Southerners of the North” an opportunity to attack Lincoln for stirring up internal rebellions. Brigadier General Napoleon Bonaparte Buford’s response to the slavery sections was so enthusiastic that when he received a copy of the committee print at the headquarters of the Division of Cairo in the western theater, he declared the draft slavery articles to be of “vast importance” and impulsively sent them to be published in the Chicago Tribune, where (he assured a startled Lieber) they would be “much read by the army of the west.”

  In the final version, the slavery passages themselves ranged from Article 32, which provided that a victorious army had the authority to abolish “the relations which arise from the services due, according to the existing laws of the invaded country, from one citizen, subject, or native of the same to another,” to Articles 40 and 41, which announced that the law of any one nation at war with another had no effect “between armies in the field” and that only “that branch of the law of nature and nations which is called the law and usages of war on land” applied. Article 42 explained why that mattered. Drawing on his memorandum for Attorney General Bates the previous summer, Lieber wrote that the “law of nature and nations has never acknowledged” slavery, which “exists according to municipal law only.” But if municipal law—by which Lieber meant the domestic law of any given nation—did not apply as between contending armies, and if only the law of nations applied, then slavery could not exist in wartime. “Fugitives escaping from a country in which they were slaves” were thus free. Article 43 restated the principle:

  Therefore, in a war between the United States and a belligerent which admits of slavery, if a person held in bondage by that belligerent be captured by or come as a fugitive under the protection of the military forces of the United States, such person is immediately entitled to the rights and privileges of a freeman. To return such person into slavery would amount to enslaving a free person, and neither the United States nor any officer under their authority can enslave any human being.

  In a passage that Halleck added in the editing process, Article 43 provided further that after a war’s conclusion, “a person so made free by the law of war” could not be reclaimed by a former owner; such a freedperson was “under the shield of the law of nations,” and a former owner could make no claim for services owed.

  As statements of existing law, articles 42 and 43 were misleading. It was simply wrong to say, as Lieber did, that the law of nations had never acknowledged slavery. For centuries, capture in war had been a principal justification of slavery, which seemed preferable to execution. Only in the eighteenth century had writers like Montesquieu and Blackstone observed that the end of prisoner executions fatally undermined the capture justification for slavery. What Lieber was drawing on in Article 42 was not so much the laws of war as the more general idea in the law of nations that slavery could exist only where there was some affirmative act of legal authority recognizing its validity. This was the idea articulated most prominently by the leading British judge Lord Mansfield in 1772 when he determined in his famous decision in Somerset’s Case that a slaveowner could not forcibly seize a man who had been his slave in Virginia and return him to the Americas when the alleged slave lived in England as a freeman. Now ninety years later, the same idea reappeared in Lincoln’s General Orders No
. 100 as the justification for freeing slaves upon their arrival in Union lines.

  Article 82 referred to slavery more obliquely, but it was as important a passage as any in the code. If “men, or squads of men” committed hostilities “without being part and portion” of an organized army, “without sharing continuously in the war,” and without retaining “the character or appearance of soldiers,” the Article instructed, such men were “not public enemies” and therefore “not entitled to the privileges of prisoners of war.” Lieber drew on the experience of Napoleon in Spain and northern Italy to formulate the provision. Its terms bore the hallmarks of his work on guerrillas in Missouri for Halleck in the summer of 1862. But in the context of the Civil War, one of its most natural applications was to uprisings of freedpeople behind Confederate lines. Article 82 announced that the Lincoln administration would not insist that the South treat freedpeople rising up against the Confederate government as soldiers and prisoners of war.

  Whether slaves in an uprising would be considered as legitimate soldiers was a live question, for the French Revolution’s levée en masse had licensed the people of a nation under attack to rise up against an invader. Since the relationship between slave and master had long been associated with a kind of suppressed warfare, it was only natural to think that the levée en masse idea might be extended to slave insurrections. That, after all, was the great fear southern whites had experienced in reading Lincoln’s preliminary Emancipation Proclamation in September 1862, with its promise of Union Army support for “any efforts” by blacks themselves to achieve “their actual freedom.” The final Emancipation Proclamation had pulled back on that promise subtly but significantly, replacing it with an injunction to the freedpeople “to abstain from all violence” except in “necessary self-defense.” Now, five months later, Lieber’s instructions repeated the message of the January 1863 Proclamation and disavowed one possible form of Union support for a black uprising. Together, the January Proclamation and the May instructions left the freedpeople with self-defense rights under the criminal law while limiting the claims they could make on the laws of war if they rose up collectively against their former masters.

  Article 57 firmly took the opposite position for black soldiers enlisted in the Union armed forces. “No belligerent,” announced Article 57, “has a right to declare that enemies of a certain class, color, or condition, when properly organized as soldiers, will not be treated by him as public enemies.” Article 58 further elaborated the same idea: “The law of nations knows no distinction of color,” it proclaimed, providing that “if an enemy of the United States should enslave and sell any captured persons of their army, it would be a case for the severest retaliation.” And because the United States could not and would not retaliate by enslaving captured Confederate soldiers, the code authorized the execution of an equivalent number of Confederates in retaliation for black soldiers enslaved.

  The Confederate policy toward black soldiers was at the heart of Article 62 as well. Rumors suggested that many Confederate officers planned to give such men no opportunity to surrender. They would, in the language of warfare, give black soldiers “no quarter.” Article 62, in turn, provided that “All troops of the enemy known or discovered to give no quarter in general,” or (crucially) to give no quarter “to any portion of the army,” would themselves “receive none” in return. The Confederate position, of course, was that black soldiers were impermissible combatants in civilized warfare because they were savages. Article 67 squarely took on that claim: “The law of nations . . . admits of no rules or laws different from those of regular warfare, regarding the treatment of prisoners of war, although they may belong to the army of a government which the captor may consider as a wanton and unjust assailant.”

  Even passages that seemed to have little to do with the slavery question were powerfully influenced by it. Toward the end of the code, Lieber included an enigmatic passage prohibiting assassination as beyond the pale of civilized combat. “The law of war,” provided Article 148, “does not allow proclaiming either an individual belonging to the hostile army, or a citizen, or a subject of the hostile government, an outlaw.” Readers have puzzled over the meaning of Lieber’s assassination provision ever since, in no small part because it would be invoked after Lincoln’s assassination in 1865. But slavery and the black soldier controversy provided the context. When Union forces in the Department of the South and the Department of the Gulf began to raise black regiments from the swelling ranks of contraband slaves, the Confederate government in Richmond had issued outlawry orders against the principal Union organizers, Major General David Hunter and Brigadier General John W. Phelps. Two days before Christmas 1862, while Lieber was hard at work on the code, Jefferson Davis issued another outlawry proclamation, this time aimed at Major General Benjamin Butler, now commanding Union forces in New Orleans. Davis excoriated Butler not only for exciting “African slaves . . . to insurrection by every license and encouragement,” but for arming “numbers of them . . . for a servile war,” a war that would far exceed “in horrors the most merciless atrocities of the savages.” Davis ordered that Butler no longer be treated as a “public enemy” but “as an outlaw and common enemy of mankind,” liable to immediate execution by any officer capturing him. When Lieber wrote into the code that “civilized nations” looked “with horror” upon outlawry and assassination “as relapses into barbarism,” he had the outlawry orders against Hunter, Phelps, and Butler close at hand.

  PARTS OF THE code dealing with less politically sensitive questions such as prisoner paroles were issued early in the spring of 1863 without awaiting the approval of Stanton and Lincoln. But the rest of the code, including its principal slavery sections, required the authorization of the secretary of war and the president. In May, Lincoln issued it as General Orders No. 100 of the Union Army.13

  On May 23, William Ludlow, the Union officer for prisoner exchanges at Fort Monroe in Virginia, met his Confederate counterpart for their regular appointment along the James River near Richmond and handed him a copy of the code. Its terms, Ludlow announced, would govern the two armies and would be the basis for prisoner paroles and exchanges for the rest of the war. The Confederate reaction was instantaneous and unsparing. Secretary of War James Seddon, who as a congressman during the Mexican War had praised the laws of war as “the boast of modern times” and “the blessing . . . of Christianity and civilization,” lambasted the code as a “confused” and “undiscriminating compilation” of obsolete and repudiated notions. The code’s military necessity principle, Seddon argued, meant that an army could either fight with “faith” and “honor,” or behave like the “barbarous hordes” of the Middle Ages, committing “acts of atrocity and violence” that would “shock the moral sense of civilized nations.” The Confederate agent of exchange in Virginia told his Union counterpart that the code was “a license for a man to be either a fiend or a gentleman.” In his annual message to the Confederate Congress at the end of the year, Jefferson Davis quoted at length from the code’s military necessity passages to contrast its “inhuman” terms with the “moral character” of the South’s “Christian warriors.”

  The parts of the code that most provoked Confederate authorities (“the most prominent of the matters treated in Order No. 100,” Seddon said) were those that took up the slavery question. Within a few weeks of delivering the code to the Confederacy, the Union’s agent for the exchange of prisoners was embroiled in a hot dispute with the Confederate agent of exchange over black prisoners. “Discrimination among our captured officers and men,” protested Lieutenant Colonel William Ludlow for the Union, was a violation of “the laws and usages of war.” Drawing on the code, Ludlow told the Confederate agent of exchange that the Union would “throw its protection around all its officers and men without regard to color.”

  The Confederacy’s official response went straight to the core of the matter. “The employment of a servile insurrection as an instrument of war,” Secretary Seddon ar
gued, “is contrary to the usages of civilized nations.” In “the better days of the Republic,” he maintained, the United States “would have regarded an attempt of the kind as dishonoring to the State or people who might be guilty of adopting it.” The nation’s diplomatic history and its treaties showed that it had once insisted on “reclamations for the value of escaping slaves and of slaves abducted by a military force in time of war.” And so, Seddon concluded:

  The enlistment of negro slaves as a part of the Army of the United States cannot be regarded as having any object but one. It is a part of the system of the United States Government to subvert by violence the social system and domestic relations of the negro slaves in the Confederacy and to add to the calamities of the war a servile insurrection. The savage passions and brutal appetites of a barbarous race are to be stimulated into fierce activity.

  In Seddon’s view, the code was thus not a restatement of the law of war at all, but a reversal of that law’s most cherished principles. A war carried on under its terms would entail “the abandonment of all rules, conventions, mitigating influences, and humanizing usages” developed over two centuries of moral progress. An enemy that adopted “such auxiliaries” as black soldiers was one that proclaimed its “desire as well as design that the war shall be one for mutual extermination.”

  Newspapers quickly picked up the new order, and they too concentrated on the slavery sections. In the North, long excerpts appeared in the Boston Herald, in Washington’s Daily National Intelligencer, and in the New York Times and the New York Herald. In the South, the Charleston Mercury and New Orleans Daily Picayune published detailed reports. The black newspaper L’Union in New Orleans translated large sections of the code into French. The Louisville Daily Journal published the entire text over several issues. Extensive treatments soon came out in the Baltimore Sun, the New Haven Daily Palladium, the Boston Daily Advertiser, the Daily Cleveland Herald, the Milwaukee Daily Sentinel, and the Daily Evening Bulletin of San Francisco.