Lincoln's Code

by John Fabian Witt

  153. Treating captured rebels as prisoners of war, exchanging them, concluding of cartels, capitulations, or other warlike agreements with them; addressing officers of a rebel army by the rank they may have in the same; accepting flags of truce; or, on the other hand, proclaiming martial law in their territory, or levying war-taxes or forced loans, or doing any other act sanctioned or demanded by the law and usages of public war between sovereign belligerents, neither proves nor establishes an acknowledgment of the rebellious people, or of the government which they may have erected, as a public or sovereign power. Nor does the adoption of the rules of war toward rebels imply an engagement with them extending beyond the limits of these rules. It is victory in the field that ends the strife, and settles the future relations between the contending parties.

  154. Treating, in the field, the rebellious enemy according to the law and usages of war, has never prevented the legitimate government from trying the leaders of the rebellion or chief rebels for high treason, and from treating them accordingly, unless they are included in a general amnesty.

  155. All enemies in regular war are divided into two general classes; that is to say, into combatants and non-combatants, or unarmed citizens of the hostile government.

  The military commander of the legitimate government, in a war of rebellion, distinguishes between the loyal citizen in the revolted portion of the country and the disloyal citizen. The disloyal citizens may further be classified into those citizens known to sympathize with the rebellion, without positively aiding it, and those who, without taking up arms, give positive aid and comfort to the rebellious enemy, without being bodily forced thereto.

  156. Common justice and plain expediency require that the military commander protect the manifestly loyal citizens, in revolted territories, against the hardships of the war, as much as the common misfortune of all war admits.

  The commander will throw the burden of the war, as much as lies within his power, on the disloyal citizens of the revolted portion or province, subjecting them to a stricter police than the non-combatant enemies have to suffer in regular war; and if he deems it appropriate, or if his government demands of him, that every citizen shall, by an oath of allegiance, or by some other manifest act, declare his fidelity to the legitimate government, he may expel, transfer, imprison, or fine the revolted citizens who refuse to pledge themselves anew as citizens obedient to the law, and loyal to the government.

  Whether it is expedient to do so, and whether reliance can be placed upon such oaths, the commander or his government have the right to decide.

  157. Armed or unarmed resistance by citizens of the United States against the lawful movements of their troops, is levying war against the United States, and is therefore treason.

  Acknowledgments

  IT’S A GOOD thing for me that the law now discourages the use of armed force to collect unpaid debts, because in the course of writing this book I’ve amassed intellectual indebtedness on which I cannot imagine I’ll ever be able to make good.

  Two law school deans—Robert Post at Yale and David Schizer at Columbia—provided research support for a project that must sometimes have seemed unlikely ever to come to fruition. A fellowship from the John Simon Guggenheim Memorial Foundation in 2010–2011 gave me much-needed time to bring the book toward completion.

  Collegial groups at law schools around the country read early drafts of parts of the book and provided invaluable feedback on the stories and arguments therein. At Columbia, George Fletcher and Lori Damrosch put together a workshop in 2007 in which I first rehearsed some of the ideas that gave shape to the project; almost five years later, Sarah Cleveland hosted another session at Columbia where I was able to hone some of the fine points as the book came together. Bernadette Meyler and the Cornell Law School Humanities Workshop helped me think more clearly about chapter 3. I’m grateful to the Harvard International Law Workshop, where Bill Alford and Ryan Goodman presided over a session on an early version of chapter 1. The Harvard Legal History Workshop, ably led by Jed Shugerman, read and commented on a version of chapters 7 and 8. Dan Hulsebosch, Bill Nelson, and John Reid hosted me with their usual aplomb at the NYU Golieb Legal History Colloquium and led me to substantially revise much of the material in chapter 2. David Golove and Rick Pildes at the NYU Public Law Colloquium did the same for chunks of Part I. Keith Whittington, Paul Frymer, Dirk Hartog, and the Princeton Public Law Workshop sharpened a number of the arguments of Part II. Bob Gordon and the Stanford Law School Legal History Workshop helped me think through much of the last part of the book. Barbara Fried, Dan Ho, Jenny Martinez, and the Stanford Legal Theory seminar pressed me on some of the hardest questions in chapter 8. Chris Tomlins brought his characteristically sharp eye to a presentation on the book at the University of California at Irvine. Alison LaCroix hosted an afternoon session at the University of Chicago, where she, Adam Cox, Jake Gersen, Eric Posner, and others were terrific interlocutors. Steven Wilf gave me the opportunity to share some of the book’s ideas at the University of Connecticut. Martha Jones and Rebecca Scott presided over an invaluable session at the University of Michigan that helped me impove the arguments in chapter 3. Bill Eskridge and Paul Gewirtz convened a session of the Yale Law School Faculty Workshop that hashed out some of the tricky puzzles of chapter 4.

  The generosity of David Jones and the Yale Law School Class of 1960 made possible an inaugural lecture in which I presented some of the material on Lincoln and Lieber for the first time. Many thanks to the Duffy family—Lucy, Daniel, Sam, and Tim—for being a part of that occasion, which was held in honor of the late Allen Duffy. In Los Angeles, Gregory Rodriguez and the folks at Zócalo Public Square assembled a convivial audience to talk about the Mexican-American War of 1846–48. Many thanks to Bill Deverell and the Huntington-USC Institute on California and the West for arranging the Zócalo event, and to Bill and the Huntington Library’s Jenny Watts for their magnificent hospitality. In Washington, the American Society of International Law and the American Red Cross hosted a stimulating session on the laws of war in the Civil War where Isabelle Daoust of the Red Cross, Dick Jackson of the Department of Defense, and Gary Solis of American University served as collegial fellow panelists for the day. Adam Tooze and Patrick Cohrs of the Yale History Department arranged a stimulating one-day session on war in the Atlantic world and graciously let me present material from chapters 9 and 11. A 2008 conference at Columbia University sponsored by Mark Mazower and the Center for International History allowed me to work out an early version of some of the ideas advanced here; many thanks to Philip Bobbitt, Sir Michael Howard, Jan-Werner Muller, W. Hays Parks, and Anders Stephanson for participating.

  I have been fortunate to have the benefit of comments on parts of the manuscript from many friends and colleagues, including Bruce Ackerman, Mike Agger, Akhil Amar, Richard Bernstein, David Blight, Christina Burnett, Bo Burt, Chris Capozzola, Stephen Carter, David Brion Davis, Ariela Dubler, Noah Feldman, Willy Forbath, Charles Fried, Heather Gerken, David Glazier, Annette Gordon-Reed, Oona Hathaway, Isabel Hull, Paul Kahn, Marty Lederman, Tom Lee, Yair Listokin, Peter Maas, Trevor Morrison, Sam Moyn, Jens Ohlin, Nick Parrillo, Aziz Rana, Peter Reich, Judith Resnik, Jed Rubenfeld, Peter Schuck, Scott Shapiro, Mark Shulman, Ganesh Sitaraman, Skip Stout, Adam Tooze, Matt Waxman, and Jim Whitman. I taught seminars on the history of the laws of war with Oona Hathaway, Sam Moyn, Jim Whitman; I am grateful to all three of them and to our students. Lori Damrosch generously sent along a Lieber letter from the University of South Carolina’s Irvin Department of Rare Books and Special Collections. My one-time neighbor Jim Oakes of the City University of New York graciously shared an early draft of his terrific next book and offered incisive comments that significantly sharpened mine.

  In the final months of completing the book, Burrus Carnahan, Gene Fidell, Jack Goldsmith, Dan Hulsebosch, Andrew Kent, Harold Koh, Craig Symonds, and Detlev Vagts each read and commented at length on the entire manuscript, for which I am eternally grateful.
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  A great number of superb librarians and archivists have helped me with one or another stage of the project. Kent McKeever at the Diamond Law Library at Columbia got me off to a flying start. Olga Tsapina at the Huntington Library helped me work with the library’s Lieber materials. Roberta W. Goldblatt at the Library of Congress’s Federal Research Division took time out from her busy schedule to give me access to the only partially cataloged collection of Lieber materials inherited by G. Norman Lieber and held on loan from the Judge Advocate General’s Legal Center and School in Charlottesville, Virginia. A small army of manuscript specialists helped locate particularly valuable letters and other obscure items, including Nann J. Card at the Rutherford B. Hayes Presidential Center in Fremont, Ohio; Mary Person at the Harvard Law School Library; Michelle Gachette at the Harvard University Archives; Paul Harrison in the Archives Reference Section of the National Archives and Records Administration; and archivists at the Massachusetts Historical Society. Tom Lowry at the Index Project provided data from his massive database of Civil War courts-martial, a subset of which I was able to crosscheck. The reference librarian staff at the National Archives in Washington, D.C., is a constant reminder of what wondrous things a professional civil service is able to accomplish. At late stages in the process, James Tobias at the Historical Resources Branch of the U.S. Army Center of Military History and Dr. Andrew J. Birtle offered considerate responses to an out-of-the-blue inquiry, as did Shannon S. Schwaller of the U.S. Army Heritage and Education Center in Carlisle.

  The Lillian Goldman Library at Yale Law School is one of the wonders of the known world. Blair Kauffman oversees a staff of indefatigable and super-smart librarians who tracked down endless leads (and often generated new leads all by themselves) in the search for materials for the book. I am especially grateful to John Nann for reference help and to Sarah Kraus and Richard Hasbany for their good cheer and astounding speed. Fred Shapiro tracked down obscure quotations with the skill for which he is renowned.

  I was also fortunate to have the benefit of heroic research assistants and students. At Columbia, Sameer Bajaj, John Eichlin, Gideon Hart, Dodi-Lee Hecht, Maeve Herbert, Matthew Podolsky, and Kamal Sidhu made the project their own for a time. (Gideon and Maeve published excellent scholarship of their own on the basis of research that began with what they did for me and then went far beyond.) At Yale, Kathryn Cahoy, Kellen Funk, Jeff Lingwall, and Dana Montalto put in more hours than I thought possible, and the book is better for it; Alyssa Briody, Marissa Doran, Adam Hockensmith, Gina Cabarcas Maciá, William Moon, David Rojas, and David Simons also helped collect and digest numerous sources. I am thankful for all their work, though they (like all those thanked here) are not responsible for any of the conclusions I reached or any errors I may have made.

  With her usual good spirit, Alieta-Marie Lynch did yeoman’s labor preparing the bibliography for the book (available on-line at the Yale Law School Library) and helping acquire images and permissions.

  My agent, Andrew Wylie, has been unstintingly encouraging since the book’s inception. Even better, he shared crucial Wylie family history relating to the assassination of Abraham Lincoln. Emily Loose at Free Press is as sympathetic an editor as I could possibly have hoped for; at every stage of the process, she understood exactly what the book was about. Thanks to her assistant Chloe Perkins, too, for excellent assistance in the final stages of the book’s production, and to Ann Adelman for superb copyediting.

  John C. Crowe, my great-great-grandfather, served in the Civil War as a drummer in the 74th New York Infantry and the 40th New York Infantry. While many of his neighbors and relatives in the Five Points neighborhood of New York City were protesting the draft and voting against Lincoln in the 1864 presidential election, he signed up to serve again when his three-year term expired. A little more than a century later, and under radically different circumstances, my father served as a conscientious objector during the Vietnam War. Each in his own way thought long and hard about justice in wartime.

  Thanks most of all to my boys Gus and Teddy, for enthusiastically joining dinner table conversations about long-ago events, and to the incomparable Annie Murphy Paul, for being the ideal partner in all things big and small.

  John Fabian Witt

  New Haven, Connecticut

  May 2012

  Photographs

  George Washington strove to be the embodiment of civilized conduct in the War of Independence after being accused of atrocities twenty years before. He is depicted here by John Trumbull as the calm before the storm.

  An artist’s rendering of the Capitol building after it was burned by the British in 1814; President James Madison accused the British of violating the “rules of civilized warfare.”

  From 1815 to 1828, as the U.S. minister in London, as secretary of state, and then as president, John Quincy Adams insisted that it was unlawful to carry off enemy slaves in wartime.

  Serving in the Congress in the 1830s and 1840s, Adams reversed his position and predicted that slavery would end in a terrible war laying waste to the South.

  The London press lampooned Andrew Jackson as a bloodthirsty butcher leading a Tennessee militia of desperate savages. President James Monroe is seated at right.

  A young Charles Sumner condemned the laws of war as legitimating lawless violence. By 1861, he defended a war against slavery and helped introduce Lincoln to John Quincy Adams’s late-career arguments about the fate of slavery in wartime.

  The first week of the war presented President Abraham Lincoln with a crisis in the laws of war at sea; controversy dogged his decision to blockade the South and treat Confederate privateers as pirates.

  Secretary of State William Henry Seward (seated with hat on knee) used social occasions with the European diplomatic corps to craft the Lincoln administration’s distinctively pragmatic approach to the laws of war.

  The Union blockade of southern ports was notoriously porous, but its basis in the laws of war helped accomplish the crucial goal of holding off European intervention in the war. Alfred Waud’s Civil War sketch for Harper’s Weekly captured the life of the blockade that Lincoln, Seward, and Secretary of War Gideon Welles constructed.

  Captain Charles Wilkes seized Confederate diplomats Mason and Slidell from a British vessel in November 1861. This early controversy over neutral and belligerent rights at sea nearly brought Britain (depicted as the angry John Bull in the rear) to war against the Union.

  At the outset of the war, Francis Lieber was teaching the laws of war at Columbia College in New York City after living in South Carolina for two decades.

  When Lincoln elevated the bookish Henry Halleck to general-in-chief in 1862, he brought an expert on the laws of war into the Union high command.

  Fugitive slaves streaming into Union lines forced the issue of slavery onto the Union agenda.

  Images of racial violence from the wars in Haiti more than a half century later led to widespread fears that Emancipation would touch off terrible violence.

  By the fall of 1862, when Lincoln traveled to the battlefield at Antietam in Maryland, he had announced Emancipation. He is pictured here with Major General George B. McClellan, who bitterly opposed freeing slaves as a dangerous and uncivilized step in warfare.

  Southern sympathizer Adalbert Johann Volck’s cartoon depicted leading Union men as infidels justifying Emancipation by the terrible motto inscribed on the altar of Negro Worship: “The End Sanctifies the Means.” Photograph © Museum of Fine Arts, Boston.

  With the decision not only to emancipate the slaves behind Confederate lines but to enlist them and other blacks into the Union Army, it seemed that the Civil War had turned the violence of slavery upside down.

  By late 1862, when he began work on a code for the laws of war, Francis Lieber had lost one son killed fighting for the Confederacy and seen a second gravely injured while fighting for the Union. The costs of the war are etched on his face in this grave portrait for the Columbia College 1862 class book.

 
; Two hundred thousand black men served in the Union armed forces, including the 29th Connecticut (Colored) Regiment, shown here in Beaufort, South Carolina.

  Despite fears that the former slaves would fight with lawless ferocity, most black regiments performed impeccably in the face of grave provocations. A Philadelphia lithographic card from 1863 and an Alfred Waud sketch capture the fascination with the black soldier as the Civil War entered its climatic phase.

  William Tecumseh Sherman’s “hard hand of war” put into action the Union’s uncompromising 1863 instructions for the laws of war. He is shown here outside Atlanta in 1864.

  Sherman defended his shelling of Atlanta by arguing that short and sharp wars were more humane than the drawn-out tepid conflicts imagined by the jurists of the eighteenth century. The shell-damaged Ponder House in Atlanta bore the effects of Sherman’s barrage.

  Ethan Allen Hitchcock, the grandson of Revolutionary War hero Ethan Allen, used the Union’s code to insist that captured black Union soldiers be treated as prisoners of war regardless of race.

  Images of emaciated Union prisoners made their way to the public in 1864 after the Union’s insistence on equal treatment of black soldiers helped bring an end to prisoner exchanges.