Lincoln's Code

by John Fabian Witt

  Halleck could be enthusiastic about Guerrilla Parties because Lieber’s treatment neatly solved the problem of the commissioned irregular by reorganizing the law of combatants. In Mexico, Winfield Scott’s councils of war had treated the soldier in a guerrilla unit as a special kind of criminal. Halleck and Lieber were now asking who was a soldier in the first place. And Lieber’s answer went beyond the formal question of whether a band of fighters was commissioned by a legitimate belligerent. Instead, Lieber asked himself what were the working characteristics that made men soldiers. The regular soldier, Lieber decided, was defined by a number of different features. The soldier typically served in a regular army. He was usually paid and provisioned by that army, which eliminated the imperative to engage in pillage. His band was permanent (or at least durable) in its formation. His movements were dictated by a central command structure that enforced discipline over him and his comrades. He wore the garb of a soldier, or at least some badge of his status, in a way that distinguished him from the peaceful citizen. He followed the laws of war and took prisoners when his enemy surrendered.

  For Lieber, the formal existence or absence of a commission from a state (or as he put it, whether a band of fighting men was “self-constituted”) was relevant to, but not determinative of, soldier status. Echoing Halleck’s letters to Price, Lieber wrote that it could not be “maintained in good faith” that an armed prowler or bushwacker would “be entitled to the protection of the law of war” simply because “his government or his chief has issued a proclamation” authorizing such violence. Instead, determining whether a fighter qualified as a soldier required careful consideration of the relevant criteria in light of the underlying goals of the laws of war: uniforms or badges that separated fighters from civilians; an organized command structure that could enforce discipline and the rules of combat; and the institutional capacity to take and keep prisoners.

  Commentators would later criticize Lieber’s guerrillas paper as verbose and rambling. There is something to the criticism, to be sure. Lieber was prone to long-windedness, and the paper (whose readership was made up of hard-pressed officers in the field) ran to 6,000 words. It provided lavish historical examples that ranged from the Greek Civil War to Napoleon’s Peninsular Campaign, from the ancient world to the sixteenth-century Dutch revolt against the Spanish. It lingered on Lieber’s beloved Prussian resistance to Napoleon and it reviewed at great length obscure European treatments of the laws of war. The paper, in short, engaged its topic as a philosophical problem as much as a military imperative.

  But if Lieber’s Guerrilla Parties paper was wordy, that was so in substantial part because it forged new ground. Lieber’s new criteria were linked together by a common thread. Each of them substituted functional considerations for the formal question of whether a fighter had been commissioned by one of the warring sides. Clausewitz had described the formal customs of eighteenth-century war as an artifact of relations among the states of Europe. Now, in a new political context in which war was being fought outside the confines of nation-states, the simple structure of those customs no longer seemed adequate to commanders like Halleck. Lieber grasped that war had overflowed its eighteenth-century political constraints, and that in the sprawling and disorganized wars of the modern age, the laws of war would need reorganization.

  The innovation Clausewitz inspired and Lieber made in August 1862 is still in our law today. We can see it in the Third Geneva Convention of 1949, which defines the soldier by reference to the considerations Lieber’s essay first raised.10 And it influenced the practice of Civil War commanders as well. Within weeks of its drafting, the approach Lieber adopted for Halleck made its way back to the western theater. In September 1862, when William Tecumseh Sherman denied that Confederate guerrillas were entitled to prisoner of war treatment, he cited the arguments that Lieber and Halleck had articulated a month earlier. “Whether the guerrillas or partisan rangers, without uniform, without organization except on paper, wandering about the country plundering friend and foe, firing on unarmed boats filled with women and children” were “entitled to the protection and amenities of civilized warfare,” Sherman wrote drily to his Confederate counterpart Thomas Hindman, “is a question which I think you would settle very quickly in the abstract.”

  Even if Lieber’s analysis of the irregular warfare problem was influential, it was hardly definitive. It left wide discretion in the hands of officers in the field. One of the most striking features of Union treatment of guerrilla fighters for the rest of the war was its variability from region to region and command to command. Some Union soldiers and statesmen, from line infantrymen to officials in the War Department and right up to the attorney general of the United States, favored summary field executions for guerrillas—executions that left precious little time for close inquiry into who qualified as a soldier and who did not. Lieber did not reject such executions out of hand. (“The most disciplined soldiers,” he wrote, “will execute on the spot an armed and murderous prowler found where he could have no business as a peaceful citizen.”) But he was cautious in endorsing a harsh policy of field executions for fear that doing so risked a vicious spiral of retaliation. Other Union officers adopted military commissions on the model of General Winfield Scott’s in Mexico. And some officers even worked to find ways to treat guerrillas as prisoners of war when the situation so warranted.

  Lieber’s great success was to establish a new functional basis for Union treatment of Confederate irregulars, one that the Confederacy came to accept, if only grudgingly. Lieber’s approach treated many of the partisan rangers commissioned under the April 1862 Confederate legislation as legitimate soldiers, but distinguished those who fought without outward badges of identification, without organized command structures, or without adherence to the basic laws of war.

  Abraham Lincoln shared Lieber’s tough humanitarianism. He tacitly approved the policy of death sentences for guerrillas, a policy that was discussed in the cabinet. Yet time and again he commuted such sentences to imprisonment at hard labor for the duration of the war. Aggressive soldiers sometimes arranged for summary executions precisely to avoid the lengthy delays that inevitably accompanied Lincoln’s formal military commissions process.

  IN FRANCIS LIEBER’S study on 34th Street in New York (just steps from where the Empire State Building now stands), a tablet on the mantelpiece displayed the names of every soldier who had fought at Fort Donelson in his son Hamilton’s 9th Illinois. With the 9th Illinois looking down on him, Lieber’s message to Halleck and Sumner and Lincoln—indeed, to virtually anyone who would listen—never varied. Lieber encouraged Lincoln and his administration to wage what Clausewitz had described as “war in earnest.” Such a war eschewed many of the constraints of limited eighteenth-century warfare, for too often those constraints seemed to Lieber to have little application to the great struggle of North and South for the future of civilization in North America. War, as Lieber saw it, was no trifling matter to be constrained by mawkish social conventions. It was the forward motion of civilization. “Blood,” he wrote Halleck, “is occasionally the rich dew of history.”

  What made the Civil War an epochal event in Western history, according to Lieber, was what he saw as its underlying cause. The war pitted a free people against slavery. As summer turned into fall in 1862, slavery took center stage in the war. Lincoln and Stanton and Halleck would soon require answers to the new set of problems that Emancipation raised.

  Chapter 7

  Act of Justice

  The extraordinary spectacle is presented to the contemplation of civilized man in this boasted nineteenth century of the Christian world, of a nation claiming to be civilized . . . inaugurating deliberately servile war by stimulating the half-civilized African to raise his hand against his master and benefactor. . . .

  —Brigadier General Daniel Ruggles, Confederate States Army, 1862

  ABRAHAM LINCOLN TRIED his best to avoid the question of whether he could free the South’s slaves. But whe
n the war forced his hand, the first answer Lincoln gave was that he could not.

  It was Major General John C. Frémont, the handsome but politically clumsy commander of the Western Department, who pushed the slave question onto Lincoln’s agenda. Born in 1813 as the illegitimate son of a planter’s wife and her French émigré dance teacher and lover, Frémont had risen by some combination of good luck, good looks, and personal charm to become an officer in the U.S. Army Corps of Topographic Engineers, surveying the trans-Mississippi West. In 1841, he had eloped with Jessie Benton, the seventeen-year-old daughter of powerful Missouri senator Thomas Hart Benton. When he won over her father as well, he made himself part of one of the country’s most influential political families. For the next decade, Frémont led widely publicized exploring expeditions into the Oregon country and California. When gold was discovered on lands he had acquired near what is now Yosemite National Park, Frémont became a wealthy man. Several years later, his burgeoning fame won him the fledgling Republican Party’s 1856 nomination for president. And in July 1861, his political clout—and especially his influence in the critical border states—led Lincoln to appoint him commander of the Western Department, headquartered in Missouri.

  The problem was that Frémont’s fame and political connections far outstripped his competence. He arrived in St. Louis at the beginning of Missouri’s bitter guerrilla war. Frustrated by anonymous attacks on trains and Union soldiers, and badly out of his depth, Frémont issued a hastily drafted, ill-considered, and unauthorized declaration of martial law. The declaration, dated August 30, 1861, ordered the execution of armed Confederates found behind Union lines. It also confiscated the property of all persons in the state of Missouri who were in arms against the United States. To this Frémont added the most controversial provision of all: “Their slaves, if any they have, are hereby declared free.”

  Frémont’s emancipation declaration thrilled abolitionists, but it left moderate Lincoln supporters aghast and southerners spluttering. Lincoln had chosen Frémont in order to shore up Union loyalties in the border states. The general’s rash declaration risked alienating the very constituency he had been appointed to reassure. Joseph Holt, the former secretary of war during President James Buchanan’s crisis-filled final weeks in office, warned Lincoln that Frémont’s order was inspiring outright terror in the loyal slaveholding states. As protests from Kentucky and Missouri poured in, Lincoln concluded that he had no choice but to countermand the order. Writing to Frémont, the president warned that “liberating [the] slaves of traitorous owners” threatened to “alarm our Southern Union friends, and turn them against us.” Such a policy might cause Kentucky to leave the Union. To lose Kentucky, Lincoln believed, would be “nearly the same as to lose the whole game.”

  Even if Lincoln had thought it prudent to emancipate slaves in Missouri, he concluded that the customs and usages of warfare prevented him from doing so. It would be one thing, he reasoned, for a military commander to seize property and hold it “as long as the necessity lasts.” Such a seizure would be “within military law, because within military necessity.” But to appropriate property permanently was another thing altogether. To say, for example, that a farm “shall no longer belong to the owner, or his heirs forever,” even after the farm was “no longer needed for military purposes,” was to make a political pronouncement, not a military one. The same held true for slaves. “If the General needs them,” Lincoln explained to his Illinois friend Orville Browning (now serving as a U.S. senator), “he can seize them, and use them; but when the need is past, it is not for him to fix their permanent future condition.”

  In overruling Frémont, Lincoln carried on a tradition that ran back to the founders, back all the way to Lord Dunmore’s slave emancipation decree in 1775. American statesmen had proclaimed time and again that the laws of war protected slavery from war’s ravages. Civilized warfare, the United States had insisted, prohibited acts that might incite slaves into a war of servile insurrection and indiscriminate violence.

  That Lincoln walked in the footsteps of his predecessors in September 1861 was unsurprising. What was remarkable was that in less than a year he would change his mind.

  Worse Than Savages

  EVER SINCE Thomas Jefferson’s Virginia Constitution of 1776 indicted the king for causing “negroes to rise in arms” against the colonists, emancipations had been closely linked in the minds of white Americans to violence that defied the civilized constraints of modern war.

  For one thing, slaves were private property, and as General-in-Chief Henry Halleck’s 1861 book on international law explained, “private property on land is now, as a general rule of war, exempt from seizure or confiscation.” Chief Justice Roger Taney had endorsed the same idea when he was attorney general of the United States in 1833, as did the late Henry Wheaton, whose Elements of International Law was still a leading authority on the laws of war. According to the editors of the widely respected Massachusetts-based Monthly Law Reporter, the rule had been asserted so often by the State Department that it could not be abandoned now without great embarrassment. “The just fame which the United States have acquired in their efforts to soften and ameliorate the code of war,” the editors wrote, “forbids that they should seek to exercise those rights, the legality of which they have steadily denied.”

  Slaves, moreover, were a peculiar kind of private property. As the Georgia lawyer Thomas Cobb had put it before the war, slaves had “a double character,” at once property and person, and in wartime their personhood seemed to many to create a grave humanitarian danger. Wartime emancipations might let loose unimaginable waves of violence. Slave uprisings in the midst of civil war threatened to produce atrocities and destruction enough to set the South back decades, perhaps centuries. The region might be left a dismaying ruin, with rapes and murders from the Atlantic to the Mississippi.

  History provided terrifying examples. The editors of the North American Review offered their readers lurid descriptions of the servile wars of antiquity (“the constant terrors” of ancient Rome). More recent episodes lay close at hand, too. In 1791 in the French colony of Saint-Domingue in the Caribbean, slaves had massacred their masters and burned plantations at the beginning of what became the Haitian Revolution. A decade later, as Napoleon tried to wrest control of the island away from the revolutionary leaders Toussaint L’Ouverture and Jean-Jacques Dessalines, both sides fought wars of racial extermination, executing prisoners and moving across the countryside in waves of terrifying destruction that left much of the once wealthy island a smoking hulk. Even nearer to home, domestic slave revolts such as Nat Turner’s rebellion in Virginia in 1831 provided fresh reminders that under the right conditions, slavery’s suppressed war could quickly erupt into a violence that no laws of warfare could hope to contain.

  The South’s military vulnerability to slave rebellion had become conventional wisdom in the years leading up to the war. In 1856, while trying to block the Treaty of Paris’s prohibition on privateering, the American diplomat Alexander Dallas had warned that without privateers, European navies would be able to land at any “point of our immense coast” and from there touch off a “servile insurrection.” British military men had long boasted that, with or without privateers, attacking the American South would be like striking a spark into a tinderbox. Indeed, as tensions mounted between North and South, many in the North argued that a slave society such as the South could never fight a war in earnest. As one northerner put it in casual conversation with a southern tourist on a Hudson River steamboat, “You cannot fight! Your worst enemy is in your midst. Let us but sound the tocsin of war and your slaves will rise! Why, you will have murder and cutting of throats in every house.”

  The most radical abolitionists in the North advocated precisely such an uprising. Before war broke out, an abolitionist pamphleteer from Massachusetts named Lysander Spooner called for citizen associations to raise money and arms for a “private war” of abolitionists and slaves against the master class o
f the South. Spooner stopped circulating his pamphlet at the request of John Brown, a veteran of antislavery violence in Kansas who worried that Spooner’s efforts would hinder the raid he himself was planning. In 1859, Brown led precisely the kind of raid Spooner had proposed when Brown tried unsuccessfully to start a slave uprising at Harper’s Ferry, Virginia. Even moderates in the North thought they might have to choose between disunion and a slave uprising as the war approached. Harvard law professor Joel Parker said that he, for one, would rather risk the “consequences attendant on a servile insurrection” than allow the United States to fall apart.

  On the eve of the war, talk of slave uprisings reached a fever pitch. Outgoing president James Buchanan blamed abolitionists for encouraging “servile insurrections.” South Carolina listed northern incitement of slave rebellion as a ground for secession. Thomas J. Jackson of Virginia (known to history as “Stonewall” Jackson for his courage at the First Battle of Bull Run) accused the North of conspiring to excite slaves to a “servile insurrection in which our families will be murdered without quarter or mercy.” In Charleston, women of the planter elite such as Mary Boykin Chesnut whispered to one another about the slave uprising that would surely come once war began.

  As state after state seceded, rumors of abolitionist and slave conspiracies raced across the South. Stories of secret caches of gunpowder circulated in Virginia. Suspicious arson in Texas produced near hysteria and led to the execution of fifty men, most of them black slaves, at the hand of vigilante mobs and the state’s home guard. Louisiana planters got wind of a slave conspiracy planned for March 4, the day of Lincoln’s inauguration. Slaveowners in Tippah County, Mississippi, talked of “an insurrection of the black population” and cited attempts to poison masters and burn their homes in the night. In May, fear of uprisings washed across the countryside near Huntsville, Alabama. By July, rumors flew around upcountry North Carolina that slaves were rising against their masters and that “whole families” had been “brutally butchered at midnight.” Indeed, for the first half of the year letters poured into the offices of state governors around the South warning of supposed insurrections.