Lincoln's Code

by John Fabian Witt

  Hitchcock responded by trying to end the Confederate practice of mass battlefield paroles. As commissioner for exchanges, he took the position that battlefield paroles were of no legal effect because the terms of the Dix-Hill exchange cartel required that paroled Union soldiers be sent through officers of exchange at Dutch Gap in Virginia or at Vicksburg in the West. Only then could a parole be binding. Noncompliant paroles, Hitchcock contended, were like escapes: they simply released a prisoner to serve in the lines again.

  Francis Lieber’s project aimed to bolster the Union position on paroles by adding a second objection to battlefield paroles. The code asserted that as a matter of international law no soldier could trade away his obligation to serve his country. Release on parole was “not a private act.” Paroles were only valid if consented to by the commanding officer in the field and the parolee’s government. Article 131 provided that “if the government does not approve of the parole, the paroled officer must return into captivity.”

  There was the mistake: “must return into captivity.” The intended Union position was the one that Hitchcock had announced the previous winter: that invalid paroles were the functional equivalent of escapes and that prisoners discharged on an invalid parole were eligible to return to Union lines immediately. But that’s not what Article 131 said. The Union’s own statement of the laws of war now required its illegally paroled men to report to the South to be duly imprisoned as prisoners of war.

  Lieber’s code was a blank check for Confederate forces to issue wholesale paroles to captured Union soldiers at no cost to themselves. Confederate secretary of war James Seddon initially protested the code’s limits on paroles. (The Confederacy’s battlefield paroles had spared Seddon the considerable cost of prisoner upkeep and transportation.) But as the significance of Article 131’s error became clear, the Confederacy quickly shifted its position. Moving into the North in June 1863, Robert E. Lee’s Army of Northern Virginia captured Union soldiers by the thousands and simply turned them loose on an oath not to serve again until exchanged, keeping long lists of the men who had so sworn. Southern commanders like Jubal Early freely disregarded the rules for proper paroling practice set out in the 1862 cartel and the 1863 code, confident that doing so would free southern armies of the onerous work of escorting prisoners back into the South.

  Stanton and Halleck scrambled to rectify the error. On July 3, while the year’s two most important battles raged at Gettysburg in the east and Vicksburg in the west, Stanton rushed out an order announcing that henceforth paroles not complying with the code and the Dix-Hill cartel were to be regarded as “null and void.” Halleck instructed Hitchcock to take the position that General Orders No. 100 had not superseded the 1862 cartel. But the Confederate agent of exchange Robert Ould would have no part of Halleck’s dodge. Ould gleefully proposed that paroles be respected according to the position of the Union’s own orders—orders that required the Union either to recognize the paroles of the Gettysburg campaign or to deliver the discharged Union soldiers back to their Confederate captors.

  BY AUGUST 1863, prisoner exchanges had broken down irretrievably for reasons much more grave than Lieber’s careless mistake.

  The long-term threat to prisoner exchange was the South’s refusal to treat black soldiers and their white officers as eligible for exchange under the 1862 cartel. Jefferson Davis and the Confederate Congress continued to treat them as fugitive slaves, insurrectionists, and criminals, not as soldiers. In the spring, two free black boys captured while accompanying a Union regiment from Massachusetts were sold into slavery by Texas officials. In August, Secretary of War Seddon ordered General Kirby Smith to execute white officers of colored regiments “red handed on the field or immediately thereafter”; blacks in arms, he told Smith, were to be viewed as “deluded victims” of Union hypocrisy and handed over to state officials. State governors across the South put in place procedures for re-enslaving blacks taken in arms. Newspapers listed the names of blacks captured in battle and called on owners to reclaim those whom they believed belonged to them. Unclaimed prisoners were sold into slavery for the benefit of state coffers.

  Some Confederate officers simply executed black soldiers on the spot. When the first black soldiers were captured in November 1862, Seddon had recommended summary execution to Jefferson Davis, and the idea never entirely went away. Kirby Smith instructed Confederate officers west of the Mississippi to give “no quarter” to both “negroes and their officers captured in arms.” Entire detachments of captured black soldiers were killed on the pretext that they had attempted to escape. Officially, the Confederate War Department discouraged such practices, at least with regard to black soldiers themselves, whom they viewed as the dupes of a wicked northern scheme. But officials such as Robert Ould, the agent of exchange in Richmond, also knew that if done quietly enough, summary executions would reduce the tensions that Confederate policy had produced in the exchange system by keeping the number of black prisoners to a minimum. When one cavalry officer reported to his superiors that he had assisted in executions with his own revolver, the Confederate command decided simply that it was not in “the interest of the service” to investigate the matter further.

  Harper’s Weekly depicted Confederate soldiers shooting captured black Union teamsters in May 1864.

  It was hard to keep such executions quiet. Summary executions culminated in bloody massacres at places like Saltville, Virginia, where Confederate guerrilla Champ Ferguson and his men executed dozens of blacks in October 1864. At Mark’s Mill, Arkansas, one Confederate veteran later remembered that “no orders, threats, or commands could restrain the men from vengeance on the negroes” they had captured. At nearby Poison Springs, Union colonel James Williams reported that the wounded men of the 1st Kansas Volunteers were “murdered on the spot” when they fell into Confederate hands.

  The most notorious race massacre took place when Major General Nathan Bedford Forrest’s cavalry assaulted the Union garrison at Fort Pillow in Tennessee in April 1864. Of the 600 Union men guarding the fort, about half were black soldiers. Most had been slaves until very recently, and many of them had lived in the vicinity of Fort Pillow. Some were even well known to members of Forrest’s forces. When Forrest overran the Union positions, his men allowed white Union soldiers to surrender. But as a Confederate newspaper correspondent reported, “the negroes were shown no mercy.” A sergeant in Forrest’s cavalry told his wife that words could not “describe the scene” that followed. The “poor deluded negroes,” he wrote shortly after the event, “would run up to our men fall upon their knees and with uplifted arms scream for mercy,” only to be “ordered to their feet and then shot down.” Two-thirds of the 300 black soldiers who were in the fort that morning were dead by nightfall. Forrest would later deny accusations that he or his men had executed blacks. But the evidence shows (and most historians now agree) that they did. Indeed, the Fort Pillow executions were not so much surprising as they were inevitable. They were simply the logical outcome of the South’s official denial that blacks could be lawful soldiers. Forrest, who founded the Ku Klux Klan shortly after the war’s end, treated black Union soldiers at Fort Pillow as he would have treated slaves in an armed insurrection before the war. They were criminals for whom the laws of war had nothing to say.

  IN THE SUMMER of 1863, Lincoln, Stanton, Halleck, and Hitchcock decided the Union would not take part in any system of exchange so long as the South persisted in its treatment of black soldiers as criminals.

  Two hundred black soldiers died in the grisly massacre at Fort Pillow.

  It was an extraordinarily unpopular policy. Many northern whites could hardly believe that the Lincoln administration would put black soldiers ahead of white ones. White soldiers in the southern camps petitioned angrily for a change in policy, observing caustically that the southern policy on black soldiers sometimes worked out to the benefit of captured blacks, who were “seldom imprisoned” but put to work and fed and clothed in order to maintain thei
r strength. White soldiers complained that they were “starved and treated with a barbarism unknown to civilized nations,” while black soldiers were “neither starved, nor killed off by the pestilence in the dungeons of Richmond and Charleston.” The editors of the New York Times demanded resumption of prisoner exchanges lest “ten or twelve thousand of our soldiers be starved to death.” Walt Whitman took to the newspapers to decry Secretary Stanton for turning thousands of white soldiers into hostages for the benefit of a few black men. Responsibility for their deaths, Whitman angrily asserted, would “rest mainly upon the heads of members of our own Government.”

  The Union’s newly codified account of the laws of war played a vital role in the controversy. With a clarity that appeared nowhere else in the law of nations, the code’s terms denied that a nation at war could discriminate among enemy soldiers on the basis of their race. The crisp terms provided a script for Union officials for the rest of the war. Within weeks of the code’s publication, Union exchange agent William Ludlow drew on it to protest to his counterpart Robert Ould that under “the laws and usages of war” a capturing army was forbidden to withhold prisoner of war treatment on the basis of race. Halleck committed the United States to offering “protection to all persons duly received into the military service” and demanded that the Confederacy comply with this basic feature of the “rules of civilized war.” In the Department of the South, David Hunter insisted that exchanges stop until the South treated Union soldiers equally “irrespective of their color.” Near Vicksburg, Mississippi, Ulysses S. Grant announced that the U.S. government was “bound to give the same protection” to black troops “that they do any other troops.” Benjamin Butler, who became a special agent for the exchange of prisoners in December 1863, told Ould (at Hitchcock’s instruction) that it would be consistent with neither “the policy, dignity, nor honor of the United States” to allow those who had “borne arms in behalf of this country” to “remain unexchanged and in the service of those who claim them as masters.”

  Hitchcock also relied on the code’s race discrimination provisions when he took the Union’s case to the unsympathetic northern public. Hitchcock had taken positions of principle many times in the course of his long and curious career, often to his own detriment. Now, in an open letter to the editor of the New York Times, he made one more stand. Union soldiers in the prison camps of the South, he conceded, were undergoing “extreme sufferings” that had “naturally aroused the sympathies of our people.” Why then had they not been exchanged? The answer, Hitchcock explained, was that in employing black troops, the United States had incurred a “most solemn obligation” to protect all of its soldiers and ensure that they were “treated with that humanity which is due to all other troops in like circumstances according to the laws of civilized warfare.”

  SKEPTICS DOUBTED HITCHCOCK’S sincerity in 1863 and have continued to doubt it ever since. The skeptics argue that protecting black soldiers was merely a pretext for the real reason the Union discontinued exchange: promoting its strategic interests. As the critics observe, Union leaders such as Stanton had come to think that exchanging all the Union’s southern prisoners would hand the Confederacy “a new army 40,000 strong” while getting little in return for the North. The arithmetic of prisoner exchange had often worked against the Continental Army in the War of Independence. Now exchanges seemed likely to work against the Union. Prisoners held by the Confederacy were often too weak to be returned to the front lines. Many Union soldiers’ three-year enlistments would expire in the summer campaign season anyway.

  Yet the treatment of black soldiers was no mere excuse for self-interested Union tactics. As far back as December 1862—long before conditions in southern prisons raised political pressure on the exchange question—Lieber, Hitchcock, and Halleck had made the equal treatment of black soldiers a central feature of their project to codify laws of war. While the code was still in the drafting stage in January 1863, Stanton told the governor of Massachusetts that “the United States was prepared to guarantee and defend, to the last dollar and the last man . . . all the rights, privileges and immunities that are given, by the laws of civilized warfare.” And in their private correspondence, Union officials expressed the same position. Early in the fall of 1863, weeks before he wrote his public letter to the Times, Hitchcock told Lieber that “if the government employs colored soldiers, their officers (& themselves also) must be protected according to the laws of war.”

  Justifying an otherwise unpopular policy by appealing to the equality of black and white soldiers would have been a singularly poor political tactic. Popular reaction to the Union policy was so hostile that Hitchcock offered his resignation within days of the publication of his open letter. (Stanton declined to accept it, and Hitchcock served to the end of the war.) The policy of refusing discriminatory rebel exchange offers became more controversial with every passing month. Even Secretary of the Navy Gideon Welles believed that stopping the exchanges because southern slaveowners “held on to their slaves” when they were captured “was an atrocious wrong.” Prisoners moldering at the prison camp at Andersonville, Georgia, were positively venomous toward a policy that resulted in the deaths of hundreds of their white comrades, sometimes at a rate of more than 100 each day. “The Everlasting Nigger must be protected,” seethed a Massachusetts prisoner, “and the soldier may take care of himself.” A Vermont sergeant complained that “we must stay here because they can’t agree on some nigger question.” A New Yorker wrote that he had “no desire to be immolated upon the altar of the ‘irrepressible nigger.’” William Farrand Keys, a schoolteacher from Pennsylvania, bitterly expressed what many in the camps thought: “it appears that the federal government thinks more of a few hundred niggers than of the thirty thousand whites here in bondage.” If refusal to resume the exchange cartel was not actually based on the South’s refusal to treat black Union men as soldiers, the administration had chosen a singularly bad public justification for its policy.

  The Union position on prisoner exchanges was not based solely on principle, of course. It had strategic implications as well, though not only the ones the critics typically cite. White men available for army service had grown scarcer in 1863. As the Union turned to unpopular measures such as the draft, the availability of black soldiers became an increasingly critical part of the Union war strategy. Almost 200,000 would serve in arms by the war’s end. By the summer of 1863, however, free blacks such as Frederick Douglass had made clear that if the Lincoln administration wanted to recruit black soldiers into its armed forces, it would have to insist on prisoner of war treatment for black soldiers. A black man from New York named Theodore Hodgkins put it bluntly: If the government did not protect its black soldiers, he wrote to the president, “it may as well disband all its colored troops, for no soldiers whom the government will not protect can be depended upon.” In the war’s waning weeks, when black recruitment was no longer as urgent a concern, Grant agreed to resume exchanges without insisting on a policy of nondiscrimination.

  The greatest problem of all for the skeptics is that, as Hitchcock reminded Stanton after the war was over, all the Confederacy had to do to resume prisoner exchanges was agree to exchange black soldiers man for man alongside whites. The Union offered precisely these terms repeatedly in 1863 and 1864. Grant himself offered to enter into such an exchange with Lee in October 1864. But each time, the South refused to take up the Union’s offer. Ould told a Union exchange officer that southerners would “die in the last ditch” before they agreed to treat blacks as soldiers. Even many captured Confederate soldiers opposed any agreement to exchange black soldiers, despite the fact that such an arrangement would have sped their release. One Alabama man, captured at Chattanooga in November, speculated in his diary that the Union had enlisted blacks for the very purpose of stopping prisoner exchanges. “They well know,” he observed, “we can never treat our slaves as prisoners of war.” No wonder, then, that in their private correspondence, Ould and Seddon character
ized the Union’s insistence that former slaves in Union uniforms be treated as prisoners of war as “the chief” and “insurmountable” obstacle to the restoration of the exchange system.

  Exchanges resumed in the last weeks of the war; artist Alfred Waud sketched recently exchanged Union soldiers receiving new clothes in December 1864.

  IN THE CONTROVERSY over prisoner exchanges and black soldiers, the laws of war did not oblige the United States to take the stand it did. The code Lieber drafted in 1863 asserted only that the South could not discriminate among regular Union soldiers without facing the risk of Union reprisals. It was up to the Union to decide whether to insist on prisoner of war treatment for its soldiers. What the laws of war did was to offer support for the unpopular policy of refusing to enter into discriminatory prisoner exchanges. The code, in short, helped the Lincoln administration stand its ground.

  Therein lies a startling paradox for the beginnings of the modern laws of war. For by insisting on nondiscrimination, Lincoln’s code had a hand in the greatest humanitarian disaster of the last two years of the war. Some 55,000 men died in Civil War prison camps. Had exchanges been allowed to go forward on the South’s terms, countless of those men would have lived. If the law of war’s only goal were reducing human suffering, this would have been a searing indictment of its legacy. But the Union’s code embodied a mix of purposes. Lessening humanitarian suffering was one. But so was justice for black soldiers and victory for the Union.