Francis Lieber to Major-General Henry W. Halleck, October 15, 1864

New YorK, October 15, 1864.

. . . I dare say you have already attended to the subject I am going to write about; still I feel prompted to say what follows. From the “New York Times” of this day I observe that much noise is made about the Rebels using our men, captured by them, for working in the fortifications, and that General Butler seems to fall into the error of considering it a grievous offence on the part of the enemy. We ought always to take care not to make ourselves ridiculous. Not to speak of 76 of General Orders No. 100, the employment of prisoners of war is universal: employment for domestic ends (such as when Russia distributed Frenchmen to the farmers, or Napoleon set Prussians to dig one of the chief canals of France) ; or for military purposes, such as working in army factories; or, lastly, for actual army purposes, such as working at fortifications, building roads, bridges near armies, &e. General Meigs asked my opinion on this very subject some months ago, and I wrote him a somewhat elaborate letter, which, were it necessary, might be referred to. That we have abstained from doing so until now, and have fed all along some fifty thousand idle prisoners, is another question. I believe it was done because we have a barbarous and reckless enemy, who threatened to use our men in pestiferous swamps if we should utilize the prisoners in our hands. That we tell them, “If you use our men, we shall use yours,” is all right; but let us not talk of unheard cruelty if they simply set the prisoners to work. We expose ourselves, especially when we do this in the face of our own general order and our own acknowledgment of the law of war. I, for one, am in favor of setting Rebel prisoners to work, — especially now, when the Rebels have used United States prisoners for fortifying Richmond, &c, although I think we must be prepared for insolent resistance and proportionate coercion on our part. . . .

SOURCE: Thomas Sergeant Perry, Editor, The Life and Letters of Francis Lieber, p. 351-2

Francis Lieber to Judge Thayer, February 3, 1864

New York, February 3, 1864.

. . . You will be pleased to consider what I am going to write as strictly confidential; not that I ever hide my thoughts, but I speak out only when called upon, or where necessary. As to the war-power of the President to abolish slavery, I have not yet been able to understand it. As I have stated in the little Code (General Order No. 100, of 1863), a commander may declare servitude abolished in a conquered territory; and thus the President, I think, could abolish it in a territory occupied by our troops (following in the Rebellion the general laws of war); but to declare slavery abolished in territories where we are not, would require legislative power (within the Constitution), and the President has not this power. When Napoleon was urged to declare all Russian serfs free, at the beginning of the Russian campaign, those who urged him could of course only mean that he should hold out to the serfs their freedom in case he should conquer, and thus befriend the serfs. Nevertheless, slavery must be abolished. What then? The whole Rebellion is beyond the Constitution. The Constitution was not made for such a state of things; it was not dreamt of by the framers. We must cut and hew through the thicket as best we can, and see how, later, we can adjust matters, either by amending the Constitution — which I think we must do at all events — or by silently adopting what was done at the period when not the President but the people had assumed dictatorial power. I know very well how dangerous such a power is; but the life of the nation is the first substantive thing, and far above the formulas which very properly have been adopted. . . . In all struggles of long continuance, some points must be considered at certain periods as settled and past discussion. Without it, no progress is possible. No astronomer could pursue his science if he had to prove over again, at every single step, the correctness of the multiplication table. What are the things settled at this period of our struggle? I think these: The people are conscious that they constitute and ought to constitute a nation, with a God-appointed country, the integrity of which they will not and must not give up, cost what it may, — blood in torrents and wealth uncounted; that at this period nothing can decide but victory in the field. The more efficient, therefore, the army is made, and the more unequivocally the conquest of the South, the better for all, North and South.

That slavery must be extinguished, either absolutely, or so crippled that it must perish within a lustre or two; that the State-rights doctrine, understood as it is by the men who follow the mischievous theory of Mr. Calhoun, must perish. No one whatever, and no body of men, is sovereign within the United States. The word does not exist in our law. We in America know of sovereignty only in its international sense. The United States are sovereign with reference to other independent or sovereign States, and that is all. I speak of this advisedly, having repeatedly lectured on it in the law school, and consequently dug deep into the subject. . . .

SOURCE: Thomas Sergeant Perry, Editor, The Life and Letters of Francis Lieber, p. 339-41

Francis Lieber to Major-General Henry W. Halleck, June 2, 1863

New York, June 2,1863.

. . . Is the threat of General Burnside true, that he would hang ten Confederate officers for every Union officer hung by the Confederates? Whether true or not, you are aware that this is the spirit which generally shows itself when a barbarous outrage is committed, but which it is very necessary promptly to stop. The wanton insolence of our enemy has been growing so fast, and is so provoking, that I am plainly and simply for quick and stern retaliation; but in retaliation it is necessary strictly to adhere to sections twenty-seven and twenty-eight of General Order 100, to the elementary principle which prevails all the world over, —tit for tat, or eye for eye, — and not to adopt ten eyes for one eye. If one belligerent hangs ten men for one, the other will hang ten times ten for the ten; and what a dreadful geometrical progression of skulls and crossbones we should have!  . . . You will decide what the general-in-chief has to do in this matter. Some distinct expression of the essential character of retaliation, whether by general order or by a proclamation of the President (intended for our side as well as for the other), or by a general letter of yours addressed to all generals, — I do not presume to decide.  . . . President King read yesterday to me a letter from Mr. Lawrence, in whieh he informs him that Broekhaua in Leipzig has made him a very liberal offer to publish in Germany a French translation of Lawrence's new edition of Wheaton. So we shall have a European edition of this secessionized American “Law of Nations.” It worries me. These two large volumes in French will be the universal authority in Europe concerning us.  . . . A first-rate work should be written as an antidote; but it would require a long time of absolute leisure for a great jurist, — as Halleck, if he had not the sword in his hand, taking Heffter as his basis, as Lawrence takes Wheaton. . . .

SOURCE: Thomas Sergeant Perry, Editor, The Life and Letters of Francis Lieber, p. 334-5

Francis Lieber to Major-General Henry W. Halleck, February 20, 1863

New York, February 20, 1863.

My Dear General, — Here is the projet of the code I was charged with drawing up.¹ I am going to send fifty copies to General Hitchcock for distribution, and I earnestly ask for suggestions and amendments. I am going to send for that purpose a copy to General Scott, and another to Hon. Horace Binney. For two or three paragraphs you will observe we should want the assistance of Congress. That is now too late; but I suggest to you to decide with the Secretary of War whether it would be advisable and feasible to send the Code even now, and as it is, to our generals, to be a guide on some difficult and important points. I observe from some orders of General Rosecrans that he has used my pamphlet on “Guerilla Warfare,” unless there be a remarkable spontaneous coincidence.  . . . I do not believe that it will be possible to change for the present war, or at least immediately, the usage which has grown up regarding parolling privates, but you will agree with me that the law, as I have laid it down, is the law and usage. As parolling is now handled by us, it amounts to a premium on cowardice, e. g. in the affair of Harper's Ferry.  . . . You are one of those from whom I most desire suggestions, because you will read the Code as lawyer and as commander. Even your general opinion of the whole is important to me. I have earnestly endeavored to treat of these grave topics conscientiously end comprehensively; and you, well read in the literature on this branch of international law, know that nothing of the kind exists in any language. I had no guide, no groundwork, no text-book. I can assure you, as a friend, that no counsellor of Justinian sat down to his task of the Digest with a deeper feeling of the gravity of his labor, than filled my breast in the laying down for the first time such a code, where nearly everything was floating. Usage, history, reason, and conscientiousness, a sincere love of truth, justice, and civilization, have been my guides; but of course the whole must be still very imperfect.  . . . Ought I to add anything on a belligerent's using, in battle, the colors and uniform of his opponent? I believe when this has been done no quarter has been given. I have said nothing on rebellion and invasion of our country with reference to the treatment of our own citizens by the commanding general. I have three paragraphs on this subject, but it does not fall within the limits, as indicated in the special order appointing our board. . . .

_______________

¹ This refers to the pamphlet entitled “Instructions for the Government of Armies of the United States in the Field,” published by the War Department, in April, 1863, as General Orders, No. 100.

SOURCE: Thomas Sergeant Perry, Editor, The Life and Letters of Francis Lieber, p. 330-1

Review: Lincoln's Code, The Laws of War in American History

Lincoln's Code: The Laws of War in American History

By John Fabian Witt

The laws of war govern the conduct of nations at war.  They are generally agreed terms that are internationally recognized as to how warfare is to be conducted, and what actions are not sanctioned by it.  Today we familiar with them as the Geneva Conventions.  They are result of hundreds of years of negotiations between nations and adapted to meet the evolving mores of their time.  But how were they developed and who was their author?  John Fabian Witt’s book “Lincoln’s Code: The Laws of War in American History” has the answer.

What we recognize today as the rules and laws of war were largely authored by a German-American jurist and political philosopher Frances Lieber.  His laws of war were encoded as Abraham Lincoln’s General Orders, No. 100 issued April 24, 1863 at the height of the American Civil War.  Before that however Professor Witt traces the rules of war from the Revolutionary War and the War of 1812 to the Mexican War, The Civil War until the issuance of General Orders No. 100. 

A good deal of time is spent in the discussion of what to do with slaves during a time of war.  Once captured are they to be set free?  Are they to be enlisted by the conquering foe and used as combatants against their former owners?  Or are they to be returned to their owners once the hostilities have ceased?  These questions were debated and argued over from the outbreak of the American  Revolution until slavery was at last abolished at the close of the Civil War.

Professor Witt deftly handles Major-General William T. Sherman’s idea of a harsh and total war against civilians and soldiers alike, employed during his March to the Sea and the Carolina Campaign, and argues it benefitted the Union by lessening the length of the war.  It therefore the “hard hand of war” was the most humane way of bringing hostilities to a close with the least amount of human suffering.  A view later endorsed by German Field Marshal Helmuth von Moltke.

Prize Courts and trials of civilians by Military Commissions are also thoroughly discussed, by the author.  Through it all Professor Witt shows how the guiding hand of Francis Lieber shaped the laws of war which are still largely in effect today.

“Lincoln’s Code,” is expertly researched and wonderfully written.  Its title may lead you to think it is exclusively Abraham Lincoln’s military policy during the Civil War, but it is so much more than that.  It is a book that not only belongs on the shelves of every student of the Civil War, but should also be equally shelved in law libraries across the country.

ISBN 978-1416569831, Free Press, © 2012, Hardcover, 512 pages, Photographs & Illustrations,  End Notes, Appendix & Index. $32.00.  To purchase this book click HERE.