Lincoln's Code

by John Fabian Witt

  On the ground in Oregon, Davis could barely believe that dealing with Indians warranted such legal care. “I thought to avoid an unnecessary expense and the farce of a trial,” he told a reporter, “by doing the work myself.” But to his disgust, Grant approved Williams’s proposal for military commissions in the Modoc case. The United States charged Captain Jack and five other Modocs with murder in violation of the laws of war. After five days of trial at Fort Klamath in Oregon, the commission convicted them and sentenced each of them to death. Three months later, after the president commuted two sentences and approved the remaining four, the U.S. Army executed Captain Jack and three of his fellow Modocs on a gallows built especially for them. A newspaper correspondent at the scene reported that “Everything connected with the execution was in most perfect order and was performed in strict military precision.” The “majesty of the laws,” he added, had “been vindicated.”

  IN MOST INDIAN CONFLICTS, the majesty of the law more often gave way to a mix of tragedy and farce.

  When General Nelson A. Miles captured the Apache leader Geronimo in 1886, chaos broke out at the highest reaches of the U.S. government because no one could understand the Apache renegade’s legal status. President Grover Cleveland expressed the hope that Miles would simply hang him. The acting secretary of war contended that Geronimo should be tried and punished for murder by the civil authorities of the Territories of Arizona and New Mexico. General O. O. Howard objected that the terms of Geronimo’s surrender ruled out both of these possibilities. But no one was sure exactly what those terms were, and no one had thought to write them down at the time. Weeks later, an embarrassed President Cleveland was forced to ask Geronimo what he had understood to be the terms of his own surrender.

  Ultimately, the War Department shipped Geronimo and his small band of warriors off to Fort Pickens in Florida as prisoners of war. For the next twenty-five years, the band would live in captivity, first in Florida, then in Alabama and later Oklahoma, held as prisoners of war from a conflict that had long since ended. But this was a prisoner of war status like few others. Their ranks included not only men captured in arms with Geronimo, but also women and children (400 people in all). Dozens of children born into captivity became prisoners of war at birth. The adults moved freely around the towns in which they were confined from sunup until sundown. They raised cattle and grew crops. Until he drank himself to death in 1909, Geronimo traveled around the country to take part in Wild West exhibitions hawking cheap souvenir bows and authentic Geronimo autographs, all while formally a prisoner from the Indian wars of the 1880s.

  The Apache case was especially prolonged, but it was not unique in its halfhearted incorporation of the laws of war. Indians were held in circumstances that would never have justified prisoner of war treatment of southern soldiers in the Civil War. The sixty-nine Dakota Sioux acquitted in the Minnesota trials of 1862 were not released. They were simply imprisoned in Fort Snelling along with all the other fighting-age male Dakotas, without regard to whether the war in which they had fought was over. In the 1870s, the startling inclusion of children among the Indian prisoners of war led to the establishment of a school in Carlisle, Pennsylvania, to educate child prisoners from conflicts with the Cheyenne and Comanche. In the early 1890s, Judge Advocate General Lieber sustained the indefinite detention of an Apache chief named Eskiminzin, who had been arrested for aiding his son-in-law, a renegade scout in the U.S. Cavalry named Apache Kid. Lieber approved Eskiminzin’s captivity even though he could not say that there was a war and even though he could not identify a federal crime that the Apache might have committed.

  Nor could the United States bring itself to enforce the laws of war strictly against its own soldiers in Indian conflicts. At Sand Creek in Colorado in 1864, the 3rd Colorado Volunteers slaughtered and mutilated some 200 Cheyenne and Arapaho Indians. Colonel John Chivington had ordered the deaths of men, women, and children alike. “Kill and scalp all, little and big,” he told his men. “Nits,” he scowled, echoing the now familiar refrain, “made lice.” A court of inquiry recommended a formal denunciation of the massacre, but levied no punishments against anyone involved.20

  None of this could be squared easily with the ordinary laws of war. One problem, as Attorney General Amos Akerman put it in 1871, was the peculiarity of the legal status of Indians more generally. Indians were at once independent nations capable of going to war and making peace, and domestic dependencies under the authority of the U.S. Congress and the president. Some critics chafed at such contradictions and puzzles and urged a more thoroughgoing adoption of the rules of war as the blueprint for American policy. Men like O. O. Howard thought the best way to spread “the blessing of a knowledge” of the European laws of war among the “savage races” would be to set a good example. Others like Chivington and Davis could not understand the new application of law of war principles to the Indian conflicts at all. Summary execution and simple massacre, in their view, had been the standard tools of Indian fighting.

  In the end, however, the postwar Army’s partial embrace of the laws of war in Indian conflicts fell somewhere between the two poles. This new ad hoc middle ground, between the virtually unbounded violence of the age of Jackson and the civilized limits of the Enlightenment laws of war, resembled Lincoln’s pragmatic and partial adoption of the laws of war in the first year of the Civil War. Just as Lincoln had embraced the laws of war in the very months in which the Union was ratcheting up the destructiveness of its war effort, now officers learned to put the language of humanity and law to work as a justification for violence against Indians on the western frontier.

  Some historians have argued that Sherman and the U.S. Army learned a form of total war in the conflict with the South and then applied it in the Indian campaigns of the West. Others object that the Army had employed brutally destructive tactics against the Indians long before the Civil War and that the Army’s conduct at places like Sand Creek in 1864 and Wounded Knee in 1891 was far more indiscriminate and violent than anything directed against the South. Both positions misunderstand what the Civil War contributed to the postwar Indian campaigns. There was of course plenty of terrible violence used against Indians in the decades and centuries before the Civil War. What was new after the war—and what came out of it—was a confidence that the rules of civilized war no longer put undue restraints on the soldiers who sought to wage it. General Philip Sheridan (to whom the infamous phrase “the only good Indians I ever saw were dead” is usually attributed) justified violence in the Indian West in 1873 by asking whether it consisted of anything more than what the laws of war had been understood to permit in the South. “During the war, did any one hesitate to attack a village or town occupied by the enemy because women or children were within its limits? Did we cease to throw shells into Vicksburg or Atlanta because women or children were there?” Robert K. Evans, a recent graduate of the Military Academy at West Point and later a commander of the Army’s Philippine Department, argued a few years later that anyone who actually sat down and read General Orders No. 100 would understand that the laws of war endorsed retaliation against savages. Only the mawkish humanitarians of the East, Evans complained, prevented the Army from vindicating the stern vision of the 1863 code Lincoln had approved.

  Francis Lieber and Abraham Lincoln had helped make the laws of war safe for Indian fighting. Hostilities with Indians could now be brought under the umbrella of the laws of war because the United States’ authoritative statement of those laws—a statement that carried with it the imprimaturs of Emancipation and Union victory—no longer interfered with the tactics employed in Indian conflicts. For some of the same reasons, many were beginning to ask whether the Civil War instructions might transform the international law of war in Europe as well.

  The House in the Wood

  IN JUNE 1859, a struggling Swiss banker named Henri Dunant caught up to the French army at the small town of Solferino in northern Italy. Dunant was seeking the French emperor, Napoleon III, in ho
pes of gaining the emperor’s consent to water rights critical to Dunant’s failing agricultural venture in French-controlled Algeria. Napoleon had marched from Paris with an army 120,000 strong to fight the Austrians on behalf of Italian unification, and Dunant had set off after him.

  By chance, Dunant arrived at Solferino in the evening following a massive battle. Some 250,000 soldiers, French and Italian on one side, Austrian on the other, had fought in the heat of a blistering day. Now 30,000 wounded and 6,000 dead lay on the field. A late afternoon squall quickly turned the town’s roads into impassable mud, hindering efforts to reach the injured, let alone move them off the field. Those among the wounded who were able to evacuate themselves seemed to fill every available space in the already crowded town. Overwhelmed doctors performed battlefield amputations by the hundreds. The groans of thirsty and desperate men filled the air. Wounded men on all sides begged passersby to put them out of their misery.

  Like a good Swiss businessman, Dunant tried to organize the situation. He mobilized teams of local women to bring food to the injured and to wash their wounds. He dispatched others to collect linen for bandages. He drafted boys as water carriers. He conscripted tourists, journalists, and businessmen into his efforts. He extended aid to the wounded regardless of nationality. Injured soldiers, he said, had no country. They were all brothers. Dunant’s efforts could hardly match the magnitude of the suffering on the field that evening, or the next day, or even the next day after that. But in a modest way, he had a made a difference.

  Around Europe, men and women were having experiences startlingly like Dunant’s. In Great Britain, Florence Nightingale organized British hospital services in the Crimea and captured the attention of English newspaper readers with her indictment of the treatment of the sick and wounded. In Naples in 1861, a doctor named Ferdinando Palasciano delivered lectures proposing that wounded soldiers be treated as neutrals outside of combat. In Paris, a French pharmacist named Henri Arrault proposed a system of military ambulances that all armies would agree to exempt from attack. In the United States, New Yorkers including the designer of Central Park, Frederick Law Olmsted, and the prominent lawyer and diarist George Templeton Strong founded a Sanitary Commission to deliver aid to the wounded in the Civil War.

  Back in his hometown of Geneva, his Algerian enterprise now in ruins, Dunant marshaled these disparate efforts into an organized project. He started by writing a book about what he had seen. He called it A Memory of Solferino. The book was a stunning exposé of war’s suffering. Behind the grand narrative of battle with its charges and countercharges, its heroic defenses and its sweeping assaults, Dunant revealed thousands of stories of extraordinary suffering: acts of brutality, smashed skulls, amputated limbs, and unendurable wounds. Suffering, Dunant forcefully insisted, was the real story of war. He distributed the book privately among friends in Geneva. His friends seemed to like it, so he printed more copies. Soon the book was being published in Leipzig, Paris, St. Petersburg, and Turin. Reform-minded men and women took up his work all across Europe. Dunant had touched a nerve. His powerful story did for the treatment of the wounded in Europe what Harriet Beecher Stowe’s Uncle Tom’s Cabin had done for slavery in the United States. But Dunant was more programmatic in his efforts than Stowe. His heartrending stories drew the reader ineluctably to a proposal at the book’s end: a plan that would offer humanitarian care to the wounded on the field. Dunant proposed the creation of a new international organization that would formalize on a massive and far more effective scale the ad hoc volunteer efforts he had patched together in the aftermath of battle in 1859.

  With the help of wealthy Swiss colleagues, Dunant convened conferences of European states at Geneva in 1863 and 1864 to craft terms for a treaty that would formalize the ad hoc system of volunteers he had put in place at Solferino. The first Geneva Convention followed. Twelve European states—including Belgium, Denmark, France, the Netherlands, Prussia, and Switzerland—took up one of the Enlightenment’s great devices for limiting the destructive effects of war at sea and applied it to make new humanitarian progress in war on land. They agreed to treat ambulances and military hospitals not as enemies but as neutrals. The men and women employed in them, as well as inhabitants of the vicinity helping the wounded after a battle had finished, would be treated as neutrals, too. A distinctive arm badge—a red cross on a white ground—marked off its wearers as neutral humanitarian workers and thus exempt from the vicissitudes of combat.

  DURING THE CIVIL WAR, Francis Lieber had lobbied his friends Henry Halleck and Charles Sumner to appoint him as the American delegate to the 1864 diplomatic conference in Geneva. “Am I not the man that ought to be sent?” he pleaded. But the pressing business of the Civil War, as well as the United States’ long tradition of avoiding entanglements in European diplomacy, prevented Lincoln and Secretary of State Seward from officially participating in the Geneva conference. A skeletal delegation of the U.S. Sanitary Commission attended, but only for the limited purpose of sharing information about humanitarian work in the American conflict.

  What Lieber had grasped was that new proposals for the laws of war were emerging all around the Atlantic world. “Our No. 100,” Lieber told Halleck in 1864, had contributed its share to “the progress of our race,” and now the advancement of civilization was continuing onward. Countless factors seemed to press in the same direction. War correspondents like William Howard Russell, who covered both the Crimean War and the Civil War for The Times of London, brought the face of battle into the homes of a burgeoning (and increasingly literate) middle class. The founder of the New York Times, Henry Raymond, reported from the field at Solferino, where he encountered Dunant wearing his trademark white suit in the midst of the carnage. War photographers like Roger Fenton in the Crimea and Mathew Brady and Alexander Gardner in America did in a few iconic pictures of death what the newspapers did in thousands of words. Armies themselves were changing. Eighteenth-century mercenary armies led by aristocratic officer corps had given way to vast mobilizations of citizen soldiers, imbued with the nationalistic spirit of the age. Even the weapons those soldiers used were different in ways that summoned a new legal architecture for combat. Improved rifling technology—the grooved barrels in infantry muskets—rendered obsolete the compact fighting formations of Napoleonic warfare and undid the tight boundaries of the eighteenth-century battlefield. The same technology that mowed down George Pickett’s men at Gettysburg in 1863 also empowered irregulars ranging from Confederate guerrillas to the so-called Franc-tireurs of the war between France and Prussia in 1870–71. All these things—and more—prompted new initiatives in the laws of war.

  Indeed, an entire generation of humanitarian reformers soon came to hope that the American code of 1863 and the Swiss convention of 1864 might be signs of a new epoch of moral progress, one that would not only ameliorate the horrors of war but one day even abolish it altogether. War had been a scourge of mankind since the beginnings of time, to be sure. But so had slavery. If the nineteenth century had managed to abolish the master’s lash, why not the soldier’s sword as well? In the United States, men such as the prominent Massachusetts pastor Richard Salter Storrs and Charles Loring Brace, the influential secretary of the New York Children’s Aid Society, wrote best-selling books and delivered public lectures citing Lincoln’s instructions for the Union armies as evidence of just such moral progress. The British jurist Sheldon Amos thought there was reason to believe that humanitarian reform would nurture “the very moral sentiment which, in time, will become the direct agency for the abolition of War itself.” Many of the men behind the Geneva Convention in 1864 aimed one day to end the wars that for the time being they sought to humanize. Dunant signaled as much in his Memory of Solferino, where he echoed Sumner’s early pacifism. War, Dunant said, turned men into murderers. Others, like the Swiss Gustave Moynier, who took over leadership of the International Committee of the Red Cross when Dunant proved too abidingly eccentric, told his fellow members of the organization
that in the long run the brotherly sentiment nurtured by the Geneva Convention would make war itself seem as atavistic and barbaric as the acts of cruelty that the laws of war already prohibited. “La civilisation de la guerre—the humanizing of war—could end only in its abolition,” Moynier declared.

  Reformers’ ambitions, however, ran ahead of the facts on the ground. Getting the states of late nineteenth-century Europe to agree to the Geneva Convention had proved relatively simple. Its terms dealt only with wounded men whose usefulness to any of the armies of Europe had, for all intents and purposes, come to an end. Indeed, it was not peacemakers who turned Dunant’s Geneva principles of 1864 into a new body of international law, but rather some of the most uncompromising statesmen of the day. The militarists of Prussia (an army with a state, rather than a state with an army, the French revolutionary figure Mirabeau had quipped) took up the Geneva project of humanitarian aid to the wounded with more energy and enthusiasm than virtually any country in Europe, save perhaps Switzerland itself. When Prussia fought and decisively defeated Austria in 1866, it already had in place 120 different networks of volunteers to do the work of caring for the wounded under the Geneva rules. In the United States, which had not been formally represented in Geneva in 1864, the Senate finally ratified the convention only in 1882, when it acted at the behest of Secretary of State James “Jingo Jim” Blaine, whose central diplomatic legacy was to set the United States on a path toward more military interventions in Latin America.