Lincoln's Code

by John Fabian Witt

  Congress also had to fend off the courts. More than 1,000 defendants were tried in military commissions during Reconstruction in the former rebel states. But the tribunals proceeded in the shadow of Lambdin Milligan. In November 1867, Mississippi newspaperman William McCardle was convicted in a military court of inciting insurrection and impeding Reconstruction by threatening to publish the names of anyone voting in elections held by the state’s Reconstruction government. When McCardle sought to challenge his conviction in the Supreme Court, Congress pulled the rug out from under his suit by repealing the statute McCardle had relied on to get his case to the Court (a statute the Congress had enacted only a year before to provide access to the federal courts for freedpeople). The Court reluctantly upheld the repealer act and refused to review McCardle’s conviction, but noted pointedly that an alternative path remained open to challenge military convictions in the courts via the Judiciary Act of 1789. A year later, another white southerner tested the alternative route. Edward Yerger, a Mississippi white man accused of killing a Union soldier, challenged his military commission conviction on the same grounds that McCardle, Milligan, and Vallandigham had raised before him. The Supreme Court seemed ready to entertain a challenge to the military commissions of Reconstruction. To avoid an adverse ruling, a new attorney general appointed by recently elected President Ulysses S. Grant arranged to have Yerger transferred to civil authorities and released.

  BY THE TIME of the Yerger case, the international law of war had largely run its course as a source of authority for the federal government in the postwar South. The customs and usages of war had offered Lincoln, the Congress, and the Bureau of Military Justice a way to direct the war effort, move forward with Emancipation, and organize Reconstruction in a constitutional system that was stingy with the powers it extended to the federal government. But precisely because of the broad authority it offered, many saw the law of war (not unreasonably) as a threat to the ordinary constitutional processes of peacetime, to the separation of powers, and to the guarantees of the Bill of Rights. Men like John Bingham had pressed the theory of the law of war’s scope to extraordinary lengths when arguing before the Lincoln assassination commission. But as a congressman he had crafted the Fourteenth Amendment as a substitute and as a safer source of lawful authority.

  For four long years following Lincoln’s assassination, the laws of war had remained at the center of events. They had been the basis for the government’s postwar prosecutions of war criminals and assassins. They had underwritten the Congress’s Reconstruction efforts. But they had not punished Jefferson Davis.

  Combatants in Open War

  THE FINAL DAYS of the war in early April 1865 found Francis Lieber fearful for the safety of Lincoln, who had traveled to the front lines in Virginia. “Induce . . . the President to return,” he had implored his friend Charles Sumner. Lieber had not anticipated that the danger for the president would be as great in the nation’s capital as it had been on the battlefields of Virginia. “My God!” he wrote Halleck on learning the terrible news. “That even this should befall us!” And Lieber knew what was to blame. “It is Slavery, Slavery!” he cried. Lincoln’s assassination offered the final proof of slavery’s barbarizing effects.

  In the weeks that followed, Lieber became a prominent voice in the debate about justice for the Confederate leadership. Even before Lincoln’s death, Lieber had come to think that the leaders of the rebellion—Jefferson Davis, Alexander Stephens, and others, even James Mason and John Slidell from the Trent affair of November 1861—ought to be tried for treason.

  As controversy stirred over the postwar military tribunals, Lieber traveled to Washington to consult with President Johnson and the cabinet. Lieber met Attorney General James Speed and stayed overnight at his home in the capital. He sat down with Secretary of State William Seward, who was still recovering from the attempt on his life in April. He had an audience with Andrew Johnson, which to his dismay was interrupted by the crowds of southern pardon-seekers who thronged the White House day and night. He called on Edwin Stanton, and for the first time he met General Grant.

  Since drafting the code for Lincoln and the Union, Lieber had bided his time while teaching his classes at Columbia College, always hoping for another opportunity to serve in the war effort. From New York, he had sent a steady stream of advice to Judge Advocate General Holt and his staff and had carried on a vast correspondence with Halleck, Sumner, and others. Now his legal expertise returned him to public attention. In May, he crafted what quickly became the leading statement of the law of postwar criminal justice. Published first in the New York Independent and then reprinted in the Army and Navy Journal, and read closely by members of the administration in Washington, Lieber’s paper (like the code he had drafted while the war still raged) set out a fierce but law-bound vision of the law of armed conflict.

  As Lieber explained, the tens of thousands of southern soldiers who had been paroled at the end of hostilities were prisoners of war. Any such man who had “committed crimes” by making “acts of injury not covered by the laws of war” was answerable to his captor for such crimes. That was the view of the code of 1863, Lieber pointed out, and the same rule applied in the postwar setting. Moreover, Lieber wrote, the laws of war only immunized paroled Confederate soldiers from treason prosecutions for the duration of the war. Once war was over, and once the legal regime of warfare (the “state of war”) had given way to a state of peace, the immunity offered by military paroles fell away and rebels would be subject to criminal prosecution for treason unless they were pardoned by the president.

  Yet what was permissible was not the same as what was advisable. As Lieber met with cabinet officials in July, he urged that the government not try Jefferson Davis by military commission, even if there proved to be sufficient evidence to convict him of participating in war crimes. In a private memorandum he summarized the reasons. He worried about the increased distrust of military commissions in the immediate wake of the Lincoln assassins’ trial and the execution of Mary Surratt. He worried that such a trial would draw attention away from Davis’s real crime, which to his mind was treason. To use a military commission, moreover, would “look like positive distrust in our law as it stands.”

  Within days of Lieber’s visit, Johnson’s cabinet met on a hot day in Washington and decided in favor of the approach laid out in Lieber’s May paper and private memorandum. Stanton and Speed, the cabinet members with whom Lieber was closest, each voted in favor of a treason prosecution before a federal court. Seward preferred a military commission, but he was outvoted. Everyone agreed, however, that it would be “most calamitous,” as Secretary of the Interior James Harlan put it, if Davis were acquitted.

  THE BURDEN OF the Johnson administration’s July decision was to build a case against Jefferson Davis. The president had already accused Davis of complicity in Lincoln’s assassination in a May 2 proclamation offering a $100,000 reward for his arrest. In the trial of Booth’s accomplices, Holt and Bingham had described Davis as standing at the head of the conspiracy. But accusations were one thing; proving them was another. And so, on the same day that the cabinet resolved to prosecute Davis in a federal court, Stanton asked Francis Lieber to go into the Confederate archives to link Davis definitively to wartime atrocities.

  Lieber was appointed at the pay of a colonel of cavalry and given the travel allowance of a major general. In his first act, he appointed his son Norman, the former judge advocate under Holt, as his assistant. Along with a staff of six clerks, father and son faced 428 boxes, 69 barrels, 2 hogsheads, and 120 mailbags of rebel documents, many of them covered in dirt from the streets of Richmond. Henry Halleck, who oversaw the collection of rebel documents from late April onward, believed the collection would hold evidence of “plots of assassination, incendiaryism, treason, &c.” The War Department assigned an armed guard to watch over the special bureau’s work in a building on F Street in the capital. On Norman Lieber’s strict orders, the guard was “to allow
no person, not connected with the office, to enter the Building after office hours.” The bureau operated in secrecy, and no one was allowed into the building without the written permission of Secretary Stanton.

  Lieber had spent much of the second half of the war watching the conflict for violations in the customs and usages of war. He was certain the plot against Lincoln “emanated from or was countenanced by” Jefferson Davis in Richmond, and at the outset of his efforts in July and August he was confident that he would locate caches of documentary evidence on rebel war crimes. The bureau enjoyed some success in this regard. Lieber was able to send the judge advocate general’s office documents for use in the trial of John Gee, the commander at the Salisbury prison camp. The documents failed to win a conviction in the case, but the bureau’s work at least contributed to the effort.

  Yet that was more than Lieber’s bureau could claim in any other case, and in particular it was more than Lieber could do in the case of Jefferson Davis. Documents in the bureau’s collection of Davis’s papers established a connection between Davis and Confederate agents in Canada, but no one doubted such a connection. The real question was whether Davis had helped to plan the assassination, and here the documentary record was far weaker. In November, Lieber’s team found a letter addressed to Davis proposing an assassination plot. Davis’s handwritten endorsement referred the matter to Confederate secretary of war Seddon without comment. Lieber seized on the endorsement. But it was a slender thread, and letters like it had already been identified and made public in the trial of the Booth conspirators.

  Strikingly, neither Lieber nor anyone else in the Johnson administration thought to make the Confederate policy toward black Union soldiers part of the postwar prosecution of Davis or the other Confederate leaders. Davis and the southern leadership had endorsed the policy of denying prisoner of war status to black soldiers. Indeed, they had publicly formulated it, and under its influence black soldiers had been enslaved and executed all across the South. The 1863 code had rejected Davis’s position as a gross violaton of the customs and usages of warfare. And yet in 1865 and 1866, prosecuting high Confederate officials for crimes against black Union soldiers was so politically implausible that it did not even generate substantial internal debate among those directing the effort to prosecute Davis for his actions during the war.

  Setting aside the Confederate policy on black soldiers, Lieber ultimately found almost nothing to connect the Confederate leadership to knowing violations of the laws of war. He confessed as much in a January 1866 report to Stanton, which the secretary hid in a drawer. Finally, in April, as the Congress grew restless at the continuing failure of the administration to try Jefferson Davis, Congressman George Boutwell of the House Judiciary Committee called on Lieber to report what he had found. As the credibility of witnesses like Sanford Conover collapsed, Lieber’s work in the archives was thrust to the fore. But it fell short. Lieber was forced to go back to Stanton and admit that he had been unable to identify anything new of note. Boutwell’s report, in turn, conceded that the Confederate archives had not been able to link Davis to Lincoln’s death. Boutwell held out hope that “the capture of the rebel archives” would still produce such evidence, and Lieber shared Boutwell’s optimism. In language that Lieber himself would have used, the congressman cited the South’s “total disregard of inter-national law and of the usages of civilized war.”

  With Boutwell’s encouragement, Lieber continued to pursue connections between the Confederate hierarchy and shadowy conspiracies among rebel agents in Canada and the North deep into 1866. Yet even Lieber was losing hope that anything could be done to charge the Confederate leadership. “The trial of Jeff. Davis,” he wrote to Halleck soon after the Boutwell committee called him to testify, “will be a terrible thing. Volumes—a library—of the most infernal treason will be brought to light. Davis will be found not guilty, and we shall stand there completely beaten. The time was lost and can never be recovered.”

  WHILE THE WAR Department searched for documents, Jefferson Davis languished ill and alone in Fort Monroe.

  Johnson’s cabinet had resolved to try Davis in a federal court for treason, but a series of maddening obstacles had prevented them from moving forward. Attorney General Speed concluded that the trial would have to take place in Virginia because of the constitutional requirement that trials be held in the same state in which the crimes took place. Because Virginia was in the fourth circuit, Chief Justice Salmon Chase in his capacity as circuit justice would have sat as one of the trial judges alongside District Judge John Curtiss Underwood. Chase, however, refused to sit in the circuit court until the war was formally over, citing the importance of judicial independence from the military. A prosecution could conceivably have moved forward without Chase, but Judge Underwood was an abolitionist judge from New York (a “carpetbagger,” in the lingo of the white South), and administration officials feared that any conviction with Underwood presiding alone would be tainted by his political radicalism.

  Artist Alfred Waud sketched Jefferson Davis confined at Fort Monroe in 1865.

  New problems arose in 1866 after President Johnson proclaimed the war over. A congressional reorganization of the federal judicial circuits in July failed to assign justices to the revised circuit courts. In Chase’s view, he could not preside over Davis’s case because no justice could serve on a circuit court until Congress’s mistake had been fixed. By the time the problem had been remedied, however, Andrew Johnson’s impeachment for firing Secretary Stanton in violation of the Tenure of Office Act required Chase’s participation as the presiding officer in Johnson’s trial before the Senate. At last, in late 1868, Chase was available for trial. But by then the government had lost whatever enthusiasm it originally had for bringing Davis to trial at all. On Christmas Day, Johnson issued one last amnesty proclamation pardoning Davis, Dr. Mudd, and the few remaining rebels he had not already pardoned.

  Beneath the Union’s posture toward Davis lay the widespread sentiment that punishing Davis as a criminal after the war’s end was inconsistent with having treated him as a public enemy while the war was underway. Writing ten years after the end of the effort to prosecute Davis, the distinguished Maryland lawyer Bradley T. Johnson summed up the significance for postwar prosecutions of Lincoln’s decision in the first year of the conflict to invoke the law of war tradition. Johnson had good reason to consider the subject, for he was the same Bradley Johnson who, after leaving his home state to serve the Confederacy as a brigadier general, had presided over the burning of Chambersburg and who late in the war had commanded the Confederate prison camp at Salisbury. Grant had insisted that the surrender terms at Appomattox barred Johnson’s prosecution. Now, a decade later, Johnson keenly grasped the significance of the customs and usages of war for treason charges. When a rebellion grew so large and enduring as to compel “acceptance of the rules and usages which obtain in regular wars between independent nations,” he wrote, then treason trials were beyond the pale. To be sure, he conceded, “when traitors and rebels oppose their government by open violence and are summarily put down, those not slain in the combat” could “fairly be tried for treason” as ordinary criminals. But to do so after a conflict rising to the level of the Civil War, Johnson thought, would be “inexpressibly revolting and contemptible.” After four years of truce flags and prisoner exchanges (contentious though they were), four years of the “laws of chivalry,” and four years in which “combatants in open war” had “recognized each other as soldiers and gentlemen engaged in a legitimate conflict,” Johnson was convinced that honorable men could not go back and treat their enemies as criminals.

  As a formal matter of legal doctrine, Johnson may have been wrong. Since 1861, Lincoln and Sumner had maintained that a nation’s willingness to recognize the laws of armed conflict in a civil war did not displace the same nation’s power to exercise the sovereign authority of its laws. “Our case is double,” Sumner had said, and the Supreme Court had agreed, saying in The Priz
e Cases in 1863 that the United States could treat the rebels as enemies and criminals at one and the same time. Lieber’s code, the United States’ most systematic statement of the laws of war, had expressly reserved the right of a sovereign in a civil war to resort to treason prosecutions at war’s end.

  Yet when the time came to put Lieber’s reserved treason charges to the test, treating the rebels as criminals proved to be a step too far. Adopting the laws of war had required commitments of fair treatment and reciprocal respect that were now difficult to square with prosecuting Davis for treason. Indeed, acceptance of the law of war framework made it hard to contemplate treason prosecutions for anyone who had taken up arms with the Confederacy. What the laws of war did was offer immunity from the criminal laws for the purpose of allowing the warring sides to come to a peaceful resolution of their conflict. And despite a powerful desire to move forward with prosecutions, the leadership of the Union understood this. The federal courts witnessed any number of indictments for treason during the course of the war, but not one execution followed. And though a flurry of new treason indictments came in the weeks and months after the war, prosecutors and courts universally dismissed the cases. It is one of the wonders of the war, as the mid-twentieth-century historian James Randall put it, that “no life was forfeited and no sentence of fine and imprisonment carried out in any judicial prosecution for treason arising out of the rebellion.”

  The laws of war had exerted considerable influence on the postwar military commissions as well. The postwar trials Joseph Holt orchestrated helped cement a conceptual innovation that had been working its way into the laws of war since the Mexican War in 1847 and 1848. Building on General Orders No. 100 and Lincoln’s Emancipation, Holt had pursued a fierce conception of the laws of war, one that was importantly at odds with the Enlightenment model Francis Lieber loved to mock as so much namby-pambyism. Here was a law of war that reintroduced crime and punishment into the regulation of armed conflict. Francis Lieber even coined a new term to describe the new treatment that the United States had begun to deal out to those who violated the customs and usages of war. Writing to Stanton in 1865 on the question of postwar prosecutions, Lieber referred to such violations as a new species of offense, the “war-crime.”