Newspapers acknowledged Lieber’s draftsmanship, but laid the code at Lincoln’s feet, and not just because it was issued under his authority or because the buck stopped with the president. They talked about the code as Lincoln’s because they understood it to be bound up in Emancipation, the most important policy of his presidency. The Daily Intelligencer praised the code as Lincoln’s response to the Confederacy’s policy of criminal prosecutions against black soldiers and their white officers. “The President, by approving these declarations,” wrote the editors, had squarely answered the threats of “the insurgent authorities.” Critics of Emancipation agreed that the code’s central passages were the slavery sections. The anti-Lincoln editors of the New York Herald, for example, said that parts of the code were “very good,” but condemned the sections relating “to the escape of fugitive slaves from the South into the lines of our armies” as “a complete fallacy.” The Herald editors could hardly believe that the president meant to abandon so decisively the position the United States had taken at the close of the last major war fought on American soil. At the end of the War of 1812, they pointed out, more than a decade of diplomatic controversy had been dedicated to showing that “the slaves taken by the belligerents” needed either to be “returned or their price paid.”
For the Lincoln administration, however, transforming the United States’ position on the question of slavery in wartime was precisely what the code aimed to do. Major General Hunter in the Department of the South put the code to work immediately upon its publication by sending a copy to the regiment whose work had helped inspire it: the South Carolina Volunteers. Hunter told Colonel James Montgomery that the code was especially important for the “employment of colored troops” so as to avoid grounds for recriminations by the South or by European observers. Hunter continued:
If, as is threatened by the rebel Congress, this war has eventually to degenerate into a barbarous and savage conflict, softened by none of the amenities and rights established by the wisdom and civilization of the world through successive centuries of struggle, it is of the first moment that the infamy of this deterioration should rest exclusively and without excuse upon the rebel Government.
Hunter called on Montgomery to enroll and arm as soldiers any fugitives reaching his lines, but always to follow with “utmost strictness” the code’s instructions on the limits of civilized warfare.
LINCOLN HIMSELF SOON put the code to use in the project of arming black soldiers. That same spring, a joint resolution of the Confederate Congress recommitted the Confederacy to its policy on black Union soldiers. Some in the North thought the code was response enough. But others insisted that a more specific statement was needed. The code announced only what the laws of war allowed a nation to do, not what it would do. The editors of the Boston Daily Advertiser worried moreover that “not one person in a hundred” knew of the code. Even if it were widely known, some thought that the code was “not of a character to strike the mind very forcibly.” What was needed was a “formal announcement from the highest authority,” something that would “impress the rebels” of the Union’s seriousness of purpose.
And so on July 31, after what Halleck later described to Lieber as a “full conversation” with his advisers, Lincoln issued a retaliation order that tracked almost word for word the language of the code he had approved two months earlier. Drafted for Lincoln in Stanton’s War Department by someone who almost certainly had the text of the code before him, the order denied enemies the right to declare unlawful any soldier on the basis of “class, color, or condition” and insisted that the “law of nations” permitted no “distinction” of “color.” To “sell” or “enslave” a “captured person” was what the code and Lincoln’s retaliation order each called a “relapse into barbarism.” Lincoln did not exercise all the authority Lieber’s account of the laws of war afforded him. He stopped short of ordering executions in retaliation for enslavement, providing simply that for every soldier enslaved, one rebel soldier would be put to hard labor.
The code’s retaliation provisions and Lincoln’s retaliation order had at least some of their intended effect. After July 1863, the Confederate government retreated from its strong initial position and discouraged public proceedings against black soldiers as criminals in order to minimize the risk of northern retaliation. Secretary of War Seddon decided to make a distinction between black Union soldiers who had been free blacks in the North before the war, who would be “held like other captives,” and black Union soldiers who had been slaves in the South before enlistment. Only the latter would be treated as criminals. Ethan Allen Hitchcock, the commissioner for prisoner exchanges and the lead member of Lieber’s board of advisers, cited the code as a vital step toward addressing the Confederacy’s harsh stance on black soldiers and their officers. Lieber’s work “in suggesting and building up the Code,” he wrote in October, had “already done great good.”
Of course, the code could not have been expected to change the Confederate position single-handedly. But it became an instrument for denouncing the South’s stance as a grievous violation of the norms of modern warfare. When Confederates under Nathan Bedford Forrest engaged in a horrific massacre of black soldiers at Fort Pillow in April 1864, Union officers directed attention to the code once again. Protesting Forrest’s conduct, Major General Cadwallader Washburn of the Union’s western district of Tennessee sent the Confederate general a copy of General Orders No. 100. As Washburn wrote sternly, he sent the order “that you may know what the laws of war are.” A “candid world,” Washburn concluded, would judge Forrest’s conduct.
IN ONE SENSE, men like Jefferson Davis and James Seddon were deeply wrong about the absence of limits in the document that Lieber eventually came to call “Old Hundred.” The code contained hard limits on the use of poisons, on the use of certain kinds of torture and violence against prisoners, and on perfidy or bad faith. It also featured the more elastic limit of military necessity.
The code also adopted a constraint for which the statesmen of the South had a special blind spot. For it not only licensed Emancipation, it shared in the Lincoln administration’s effort to lessen the risk of slave uprisings in its wake. When Lincoln ordered that men fighting outside organized armies and without retaining the character and appearance of soldiers were “not entitled” to the protection of the laws of war, and that the Union would not insist that the South treat such people as prisoners of war, he was trying to shape the way Emancipation would unfold, and he was announcing limits on what the Union would be willing to do to see its new policy through.
Yet even as the code contained limits on the freedom it authorized, it also continued Emancipation’s startling departure from the spirit of the eighteenth-century laws of war. By relying so heavily on the doctrine of military necessity, by insisting on the lawfulness of Emancipation, and by demanding the equal treatment of black soldiers, the code (like Emancipation itself) integrated the concept of justice into a body of law that had been designed to set justice aside for the sake of humanity.
Asserting the priority of justice over humanitarianism had almost immediate practical consequences. International lawyers have long touted Lincoln’s code for lessening the suffering of the Civil War. But this gets the president’s order exactly backward. Embracing Emancipation and demanding equal treatment for black soldiers were the right things to do. But they did not reduce the suffering in the conflict. To the contrary, Lincoln’s code helped produce some of the war’s most enduring humanitarian crises.
Chapter 9
Smashing Things to the Sea
The law of war imposes many limitations and restrictions on principles of justice, faith and honor.
—Instructions for the Government of Armies of the United States in the Field, 1863
War is simply power unrestrained. . . .
—William Tecumseh Sherman, 1864
IN A WAR FILLED with controversies, none is remembered more bitterly than William Tecumseh Sherman’s
assault on Atlanta in the summer of 1864.
Since early May, Sherman and his army of 100,000 men had been engaged in an elaborate series of feints and parries with Confederate general Joseph E. Johnston’s 65,000 soldiers. Moving south from Chattanooga across the Georgia border and into the heartland of the South, Sherman aimed to take Atlanta and its railroads and thereby destroy the economic foundations of the Confederacy. Johnston tried to block the Union force at every turn. But time and again, the southerners dug in only to fall back once more. Desperate to stop the Union advance, Jefferson Davis replaced Johnston with the more aggressive John Bell Hood. Yet Hood’s attacks did little to stop Sherman’s progress. Now, on July 20, as Hood fell back to positions on the outskirts of the city, Sherman ordered his commanders to cut off Atlanta’s railroads and shell the city into submission.
For the next five weeks, Union guns pounded the city blocks that lay just beyond Hood’s entrenchments. On August 9 alone, 5,000 rounds fell in Atlanta. Sherman called in heavier siege guns the very next day. Sherman marveled at the capacity of his fantastic modern guns to single out particular homes from a mile away, but the Union fire was often indiscriminate anyway. He urged his commanders to concentrate their fire at night (one Union shell killed a father and his daughter while they slept). His aim, he told Major General Oliver Otis Howard, was to “destroy Atlanta and make it a desolation.” Writing to Henry Halleck in Washington, Sherman said he would “make the inside of Atlanta too hot to be endured.” Whether he took Atlanta or not, Sherman aimed to leave the city all “used-up” by the time he was done.
The Union onslaught damaged virtually every structure in the city’s most densely built district. Casualties were relatively low thanks to the evacuation of three quarters of the city’s population; by the best count, the Union barrage killed around 20 noncombatants and wounded between 100 and 200 more. But Sherman could claim no credit for the low number of injuries. He announced that he would go forward with his assault “even if it result in sinking a million of lives and desolating the whole land,” and ordered his artillery officers to give “no consideration” to whether their targets were “occupied by families.” His guns, he told an Alabama man at the time, were “seeking the lives” of Atlanta’s people.
Sherman later accused Hood of digging in so close to the city that Union guns aimed at the Confederate lines occasionally overshot their mark. But the sheer volume of rounds that fell on Atlanta belied his claim. And when Atlanta finally fell into Union hands in the first days of September, Sherman moved to complete his assault by ordering the remaining 4,000 residents removed from the town by force. The Union sympathizers he sent north. Rebel families he expelled south to the protection of Hood’s forces. He would not saddle himself with a city full of rebels. “If the people raise a howl against my barbarity & cruelty,” he wrote to Halleck, “I will answer that War is War & not popularity seeking. If they want Peace, they & their relations must stop War.”
Sherman’s opponents did indeed howl. General Hood protested “in the name of God and humanity” that forced removal of the city’s population was an “unprecedented measure,” transcending “all acts ever before brought to my attention in the dark history of the war.” The mayor of Atlanta, James M. Calhoun, begged Sherman to think of “the woe, the horrors, and the suffering” his evacuation order would cause to the pregnant women, the mothers, and the small children of the city.
But Sherman would have none of it. It was an act of “kindness” to remove the families of Atlanta, he insisted. “You cannot qualify war in harsher terms than I will,” he warned Mayor Calhoun. But once begun, war’s logic was inexorable. “War is cruelty and you cannot refine it, and those who brought war into our country deserve all the curses and maledictions a people can pour out.” “If we must be enemies,” he told Hood, “let us be men, and fight it out as we propose to do, and not deal in such hypocritical appeals to God and humanity.” God, Sherman concluded, would “judge us in due time,” and God would decide “whether it be more humane to fight with a town full of women and the families of a brave people at our back, or to remove them” to safety. To Hood’s condemnation of his bombardment of Atlanta, Sherman replied furiously: “I was not bound by the laws of war to give notice of the shelling of Atlanta, a ‘fortified town with magazines, arsenals, foundries, and public stores.’ You were bound to take notice. See the books.”
IN THE TWENTIETH and twenty-first centuries, Sherman’s conduct at Atlanta and in the March to the Sea that followed have come to represent the beginnings of modern total warfare and proof that the laws of war cannot constrain the machinery of industrialized warfare. Surely, the critics say, Sherman’s conduct shows that the code Lincoln issued in 1863 made no difference to how the Union waged the war. General Orders No. 100 contained terms bearing directly on Sherman’s conduct, but there is no evidence that he consulted them. To leading historians, the law of war has seemed little more than a “moral cloak” for the Union’s conduct in the last two years of the conflict.
But the skeptics miss the real story. The laws of war and the order that codified them powerfully shaped the war experience of tens of thousands of people on both sides of the conflict. Sherman’s assault on Atlanta, in turn, was not a betrayal of the law of war. It was the practical embodiment of the code’s unsettling critique of the orthodox laws of war.
A Most Solemn Obligation
THE FIRST PRACTICAL thing the newly codified laws of war accomplished was to make Major General Ethan Allen Hitchcock’s life much harder.
Hitchcock, who oversaw the writing of the 1863 code as president of the board of advisers appointed to assist Lieber, was one of the great crusty characters of the war. Born into the family of Vermont War hero Ethan Allen, Hitchcock graduated from West Point in 1817, and returned to the Military Academy as an instructor in infantry tactics. For a decade, he taught the men who would one day become the Civil War’s leading generals. On the Union side, his students included Sherman, Joseph Hooker, George Gordon Meade, Samuel Curtis, Samuel Heintzelman, and John Sedgwick. On the Confederate side, he taught Joseph Johnston, Robert E. Lee, John Magruder, Jubal Early, and Leonidas Polk, not to mention Jefferson Davis himself. Hitchcock was on his way to becoming one of the academy’s legendary instructors. But when President Andrew Jackson began to meddle in the academy’s affairs, the uncompromising Hitchcock soon got into political trouble. Jackson exiled him to the Indian-fighting posts of the frontier.
In the West, Hitchcock came to regard American military policy toward the Indians as a moral abomination. The U.S. policy, he wrote, was “a picture of cruelty, injustice, and horror.” Serving in the interminable Seminole Wars in Florida in the 1840s, he concluded that bad faith on the part of the United States was responsible for the conflict. Americans typically treated the Indians, he said, “as white men on this continent have always treated them”: as “barbarians and ‘insurgents,’” especially when the Indians “presumed to set up a claim to anything” the white men wanted. The “Puritans and their descendants,” Hitchcock decided, were as savage as the Pequots and theirs.
Hitchcock was not only a man of unusual principle, he was also an intellectual eccentric of the first order. In the early 1840s, while stationed on the Gulf Coast in Tampa, he read the political tracts of Thomas Hobbes and John Locke and pored over the metaphysics of Kant and Hegel. On the western frontier he turned to histories: Napier’s history of Napoleon’s Peninsular Campaign, the Roman history written by the great Prussian historian Barthold Georg Niebuhr (an old mentor of Francis Lieber), and Thomas Babington Macaulay’s History of England. While fighting Indians he found spare moments to delve into Jeremy Bentham’s works on utilitarianism. In Texas and Mexico, he read the seventeenth-century Dutch-Jewish philosopher Baruch Spinoza. Indeed, in the 1840s, Hitchcock published a philosophical tract of his own, one that purported to unify the doctrines of Spinoza with those of the Christian mystic Emanuel Swedenborg. After resigning from the Army in 1855, Hitchcock pub
lished a stream of additional works, each one more esoteric than the last. Remarks Upon Alchemy and Alchemists (1857) featured his account of the religious mysticism that lay behind alchemy’s dream of transfiguring lead into gold. In 1861, just as the guns were firing on Fort Sumter, Hitchcock’s abstruse Christ the Spirit argued controversially that Jesus had not existed at all except in the imagination of ancient Jewish mystics.
At the age of sixty-four, in the second year of the Civil War, Hitchcock rejoined the Army as a major general serving on Secretary Stanton’s staff. In the summer, he inspected Union prisoner of war camps. In November, Stanton appointed him commissioner for the exchange of prisoners. A month later, he was added to the board of advisers tasked with helping Francis Lieber prepare a code of regulations for the laws of war.
HITCHCOCK WAS AMONG the first to realize there was a serious flaw in the code he had helped produce. Since July 1862, an agreement negotiated by John Dix for the Union and Daniel Harvey Hill for the Confederacy had produced a regular system of prisoner exchanges. But by early 1863, the exchange cartel had begun to break down. The South was increasingly desperate to restore men to its depleted lines. After the major engagements in 1862 at Bull Run, Antietam, and Fredericksburg, the Union held 10,000 more prisoners than the Confederacy. In the Union, meanwhile, acute problems were arising out of the South’s practice of paroling captured Union soldiers pending their exchange. Northern camps established to house idled Union soldiers on parole turned into breeding grounds for disease, discontent, and crime. Some paroled prisoners never bothered to report to the camps but went home instead; they were scattered around the country and often unavailable for a return to service after they had officially been exchanged. The parole of thousands of captured Union soldiers at Harper’s Ferry and Richmond in the fall of 1862 exacerbated an already deteriorating situation.
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