Lincoln's Code

by John Fabian Witt

  Many of the code’s terms drew on the orthodox law of war as it had developed since the eighteenth century. But like Lieber’s lectures in New York the previous winter, the code also reflected Lieber’s own fierce personal views. The treatment of prisoners, for example, elaborately reproduced the most civilized terms with respect to captured enemy soldiers. The previous summer, Lieber had worried that his son Norman might have been captured in the Seven Days’ Battles. It was a source of grave concern for him, because Lieber believed that nothing “so plainly characterizes the barbarity and demoralization of the South . . . as the continued . . . treatment of the American prisoners.” Not surprisingly, his code provided that “all soldiers, of whatever species of arms,” including those “who belong to the rising en masse of the hostile country,” were “prisoners of war” and “subject to no punishment” for their fighting. No revenge was to be wreaked upon the prisoner by the intentional infliction of suffering, nor by “disgrace, by cruel imprisonment, want of food, by mutilation, death, or any other barbarity.” Prisoners were to be fed “plain and wholesome food” and “treated with humanity.” Their private property was protected against appropriation. No violence could be used upon them to extract information, and no torture was permissible to “extort confessions.” The principle behind the code’s treatment of prisoners was the principle that lay at the foundation of the entire modern laws of war. When “a man is armed by a sovereign government,” Lieber wrote, “his killing, wounding, or other warlike acts, are no individual crimes or offences.”

  Yet the rules for prisoners also signaled the hawkish spirit that animated Lieber’s thinking about war more generally. Any prisoner, the code provided, was subject to retaliation for violations of the laws of war by his nation, regardless of his personal responsibility for the violation. Lieber made clear furthermore that although the prohibition on injuring and killing prisoners was a central feature of civilized modern war, it was not absolute. In his initial draft, Lieber wrote that a “chief commander” could “permit a regiment or division to declare, for the duration of the war, that it will not give, and therefore does not expect, quarter.” Halleck edited the passage out, but the final order nonetheless allowed the execution of prisoners in extreme situations. A commander, Lieber wrote, was “permitted to direct his troops to give no quarter” when he found himself “in great straits” such that “his own salvation” made it impossible to encumber himself with prisoners. Nor could those soldiers who violated the rules of war expect to enjoy their benefits. Soldiers “known or discovered to give no quarter” received none themselves. Nor did soldiers who fought in enemy uniforms, or disguised themselves under an enemy standard, or went into combat “without any plain, striking, and uniform mark” to distinguish themselves. All such combatants could be executed summarily upon capture.

  The code’s treatment of civilians showed the same mix of moral limits and unforgiving war. It was a mark of civilization’s advance, Lieber announced, that “the unarmed citizen is to be spared in person, property, and honor as much as the exigencies of war will admit.” And yet even as the code set out humanitarian limits, it tore down the wall between soldiers and noncombatants that Enlightenment jurists had tried to build. Jean-Jacques Rousseau had written that war was “a relationship between one state and another, not between their citizens.” But the code instructed that “each citizen or native of a hostile country” was an enemy and as such “subjected to the hardships of the war.” It authorized the starving of noncombatants “to hasten on the surrender” of the enemy. It permitted commanders to bombard cities without notice (though it discouraged doing so where unnecessary). And in a civil war, it authorized a commander to “throw the burden of the war, as much as lies within his power, on the disloyal citizens.”

  The code dealt out its double-edged treatment to property as well. It announced that the United States would “acknowledge and protect . . . strictly private property.” It gave special protections to cultural property such as museums, universities, and libraries. But nowhere did it rule out confiscating the private property of enemy noncombatants or the cultural monuments of an enemy nation. Cultural property that could be removed without injury or destruction might be “seized and removed for the benefit” of a conqueror, with the “ultimate ownership” to be settled by the peace treaty at the end of the war. (Napoleon had famously appropriated works of art and cultural monuments everywhere his armies went.) Most of all, the limits of modern warfare did nothing to interfere with the right of the victorious invader to tax the population or billet soldiers in their homes, or to appropriate property “for temporary and military uses.” Lieber had little but disdain for the “over-trained idea that soldiers must take nothing.” Seizure of enemy private property, he wrote, “cannot be prevented, nor ought it to be.”

  What Lieber did insist on was that “useless destruction” be prohibited, and that all destruction and appropriation be in the service of the nation and its war effort. “All captures and booty,” the code provided, “belong . . . to the government of the captor.” Neither “officers nor soldiers” were permitted to use their position “for private gain.”

  THE MASTER PRINCIPLE that animated the code was the same one that had appeared in Lieber’s lectures and had provided the justification for Lincoln’s Emancipation Proclamation. Virtually any use of force was permissible if required by military necessity. As Lieber put it in notes for an unfinished book on the laws of war, destruction in wartime was “lawful only as a means to obtain the great end for which a war is undertaken, and not for its own sake.” As he saw it, this was “the chief difference between the wars of barbarous ages and the armed contests of civilized people.” The code said the same thing: “Unnecessary or revengeful destruction of life is not lawful.” Virtually every limit in the code was shadowed by a necessity exception. This was why prisoners could be executed “in great straits.” It was why private property and cultural monuments (though “acknowledged and protected”) were subject to appropriation. It was why even war hospitals were protected only “as much as the contingencies and the necessities of the fight will permit.”

  In Lieber’s hands, military necessity was both a broad limit on war’s violence and a robust license to destroy. He carefully explained that necessity authorized only acts in the service of the nation’s public war effort; his code disclaimed “all cruelty and bad faith . . . all extortions and other transactions for individual gain; all acts of private revenge.” But its warrant for violence was daunting nonetheless. Military necessity, Article 15 provided,

  admits of all direct destruction of life or limb of armed enemies, and of other persons whose destruction is incidentally unavoidable in the armed contests of the war; it allows of the capturing of every armed enemy, and every enemy of importance to the hostile government, or of peculiar danger to the captor; it allows of all destruction of property, and obstruction of the ways and channels of traffic, travel, or communication, and of all withholding of sustenance or means of life from the enemy; of the appropriation of whatever an enemy’s country affords necessary for the subsistence and safety of the army, and of such deception as does not involve the breaking of good faith. . . .

  Lieber summarized the principle in a sentence: “Military necessity, as understood by modern civilized nations, consists in the necessity of those measures which are indispensable for securing the ends of the war, and which are lawful according to the modern law and usages of war.”

  These were the key words: indispensable for securing the ends of the war. Lieber had borrowed the term “indispensable” from Lincoln’s rebuke to Hunter’s emancipation order in 1862. Whether Emancipation was an “indispensable” necessity, Lincoln had said, was a question he would reserve to himself. But what did the word mean? One thing was certain. It did not mean that armies were permitted to take only those actions that were necessary in the sense of leaving no other choice. Read this way, the necessity principle would have prohibited virtually ever
y act of war, for it was rarely the case that any course of conduct (in war or otherwise) offered the only available path forward. McClellan’s Peninsula Campaign was not necessary in this sense, because he could have approached Richmond more directly. Nor was the South Carolina Volunteers’ occupation of Jacksonville, since there were other ways for the Union to bring word of Emancipation to the Deep South. The narrow meaning of necessity would have made war impossible to fight. If there were good reasons to fight wars, then the most rigid interpretation of the necessity standard was not plausible.

  Lieber certainly did not see military necessity in this narrow way. Nor did he mean to invoke a less restrictive but still demanding approach that would have prohibited acts of force for which there were less destructive substitutes. This has been an appealing notion for humanitarian lawyers ever since, some of whom have sought to adopt a least-destructive-means requirement to lessen the human suffering of war. But Lieber thought that the attempt to reduce the human suffering arising out of any one decision in wartime might well increase suffering in warfare more generally. “When war is begun,” Lieber told his students, “the best and most humane thing is to carry it on as intensely as possible so as to be through with it as soon as possible.” He repeated the same idea in the code. “The more vigorously wars are pursued, the better it is for humanity. Sharp wars are brief.” If this was so, then the least destructive means were not necessarily the most humane. The opposite might be true. Indeed, if war was sufficiently terrible, there might be fewer wars. Human suffering from warfare might be reduced most by a rule that not only permitted but required the greatest possible destruction.

  Lieber had written into the code the essentially Clausewitzian perspective that underlay his views of war. “War,” he wrote in Article 30, echoing Clausewitz, “has come to be acknowledged not to be its own end, but the means to obtain great ends of state.” He said the same thing in Article 68, sounding more Clausewitzian still: “The destruction of the enemy in modern war, and, indeed, modern war itself, are means to obtain that object of the belligerent which lies beyond the war.” For Lieber, like Clausewitz, the idea that modern wars were a means to advance the political ends of states meant that the old “conventional restrictions of the modes adopted to injure the enemy” were no “longer admitted.” Indeed, this was pure Clausewitz. Lieber’s “conventional restrictions” were the “self-imposed, imperceptible limitations” Clausewitz had derided as “hardly worth mentioning.” Modern war, in this view, was less savage than its predecessors not because of its humanitarian ideals but because it had been shorn of irrational excesses. Force had been channeled and directed into those forms of destruction and violence that most rationally advanced a nation’s war ends. Private violence for vengeance or sadism was no longer tolerated. But violence in pursuit of a nation’s goals was virtually unmoderated. “To save the country,” Lieber wrote in the code’s most startling passage, “is paramount to all other considerations.”

  To be sure, the necessity principle did not sweep the field, displacing all constraint. For as soon as he had done away with the “conventional restrictions” of the laws of war, Lieber introduced a new set of limits. “The law of war,” he wrote, “imposes many limitations and restrictions on principles of justice, faith, and honor.” And while many of the limits in the code contained overrides for necessity, others did not. Lieber said that necessity did not permit “torture to extort confessions” or “the use of any violence against prisoners” to extract information. To Halleck, Lieber cited an example that he had used in his lectures the year before: “If Indians slowly roast our men, we cannot and must not roast them in turn.” To do so was to “sink to the level of fiends.” The basic standards of humanity imposed further obligations as well. Reversing a position he took with his students at Columbia, he now insisted that the laws of war did “not admit of the use of poison in any way”; to use poisons “in any manner” was to put oneself “out of the pale of the law and usages of war.” Nor did the law of war permit the breaking of faith or the violation of truces. Echoing writers on the laws of war from Augustine in the fifth century to Kant in the eighteenth, Lieber added that “military necessity does not include any act of hostility which makes the return to peace unnecessarily difficult.”

  Yet if it contained limits, the code’s necessity principle also licensed frightful new forms of destruction. As the war progressed, Union authorities approached Lieber with questions about any number of new killing devices. At Yorktown, the Confederates buried explosive shells in abandoned entrenchments—primitive land mines that killed the Union soldiers who tripped them off. Lieber heard of booby-trapped bodies and new submarine torpedoes. He learned about “incendiary balls” or “rifle bombs,” akin to the explosive projectiles multilateral treaties would later prohibit. Time and again, his reaction was the same. As he told Halleck in 1863, “the soldier within me revolts at the thing. It seems so cowardly.” But “the jurist within me cannot find arguments to declare it unlawful.” Wars, he said, “are no Quixotic tournaments.” Lieber may have abandoned the position he took in his lectures as to poisons. But the same logic he had applied to poisons in the lectures animated his approach to novel weapons. The real question was whether the use of such weapons would advance the war effort, and do so not at the least cost in lives and property, but at an acceptable cost, one that did not unduly impede the restoration of the peace. Lieber made clear that there were moral limits on the conduct of men at war. But he was unwilling to say, as jurists like Vattel had said before him, that those limits could be readily translated into hard-and-fast rules of general application. Lieber summed up the moral theory of the code in one of its first articles: “Men who take up arms against one another in public war, do not cease on this account to be moral beings, responsible to one another and to God.”

  A BRAHAM LINCOLN TOOK no role in commissioning the code, at least not one that we know of. Halleck and Stanton handled that themselves. Nor did Lincoln participate in editing or revising the code. Halleck did most of that. Indeed, there is little reason to think that Lincoln ever saw the text until it was near completion and ready to go out as an order under his name. But when it was issued in May 1863, the code was issued as General Orders No. 100 of the United States War Department, “approved by the President of the United States.”

  Lincoln approved the code because (as Halleck and Stanton well knew) it expressed a view of military necessity very close to that which Lincoln had been developing since his July 1862 encounter with McClellan at Harrison’s Landing. In September 1861, Senator Orville Browning told Lincoln that the law of war gave a nation the “liberty to use violence against” its enemy “in infinitum” and permitted the destruction of “all things belonging to the enemy,” so long as their destruction bore “some relation to the design of the war” and would “in some measure weaken the enemy.” In response, Lincoln had adopted something akin to the narrow view that military necessity licensed only those acts of force that lacked less destructive alternatives.

  By the late summer and fall of 1862, Lincoln had come around to the view Browning had urged on him and that Lieber and the board of military officers would soon write into the code on the law and usages of war. To the Union loyalist Cuthbert Bullitt of New Orleans, who had passed along complaints about interference with slavery in Union-occupied New Orleans, Lincoln said he would not leave “any available means unapplied. . . I shall not do more than I can, and I shall do all I can to save the government.” (“What would you do in my position,” Lincoln asked impatiently, “would you prosecute it [the war] . . . with elder-stalk squirts, charged with rose-water?”) In early August, he assured Secretary Chase that “he was pretty well cured of objections to any measure except want of adaptedness to put down the rebellion.” And at the end of the month, when Horace Greeley sent him a public letter urging him to abandon his “mistaken deference to Rebel Slavery,” he replied by invoking the same moral logic. In words that have been quoted countless
times since, Lincoln explained his thinking without disclosing that he had already resolved on emancipation:

  If I could save the Union without freeing any slave I would do it, and if I could save it by freeing all the slaves I would do it; and if I could save it by freeing some and leaving others alone I would also do that. What I do about slavery, and the colored race, I do because I believe it helps to save the Union; and what I forbear, I forbear because I do not believe it would help to save the Union. I shall do less whenever I shall believe what I am doing hurts the cause, and I shall do more whenever I shall believe doing more will help the cause.

  In September, Gideon Welles observed that Lincoln had “come to the conclusion that it was a military necessity absolutely essential for the salvation of the Union, that we must free the slaves.” And the following year, Lincoln defended the Emancipation Proclamation on grounds that almost perfectly reproduced the logic of Browning and Lieber. “Civilized belligerents,” the president insisted in 1863, “do all in their power to help themselves, or hurt the enemy, except a few things regarded as barbarous or cruel.” No longer did military necessity, in his view, require a nation to exhaust less destructive means. Acts of force in war, Lincoln continued, were warranted by military necessity not because they were indispensable in the sense of being the only means available, but because they were helpful in the war effort. “To whatever extent the negroes should cease helping the enemy,” he argued, “to that extent it weakened the enemy in his resistance”; “whatever negroes can be got to do as soldiers, leaves just so much less for white soldiers to do, in saving the Union.” Emancipation was rationally connected to the advancement of the war effort, and that was enough for it to fall within the wide warrant of military necessity.