Lincoln's Code

by John Fabian Witt

  To be sure, the approach to the laws of war that Lincoln and Lieber crafted in 1862 and 1863 had fallen prey to Holt’s erratic personality and poor judgment. It had given way to the desire in the Congress and in the Supreme Court for a restoration of constitutional normalcy. It had foundered on the orthodox doctrine that peace forgot all crimes of war. An uncooperative president had ensured that Holt’s most expansive visions for postwar justice would be thwarted.

  Yet the distinctive vision of the laws of war crafted by the Union in the Civil War had a future nonetheless. Even as Lieber was assisting in Holt’s trouble-plagued prosecutions, the aging professor had begun to turn the code Lincoln commissioned into the beginnings of a next chapter for the laws of war around the globe.

  PART III

  The Howling Desert

  All the means, not condemned as mean or cowardly (such as assassination or poisoning), which tend directly and adequately toward the destruction of the military power and resources of the enemy, must be regarded as legitimate. Such means cannot be condemned on the ground that they are terrible and sweeping in their destructive effect. On the contrary these are good reasons for their adoption, as tending to make the contest “short, sharp, and decisive,” and still more, as tending to prevent nations from going to war upon slight provocation.

  —Major General John M. Schofield, 1881

  Chapter 11

  Glenn’s Brigade

  No modern state . . . can sanction . . . a resort to torture. . . . If it does, where is the line to be drawn? If the “water cure” is ineffective, what shall be the next step? Shall the victim be suspended, head down, over the smoke of a smouldering fire; shall he be tightly bound and dropped from a distance of several feet; shall he be beaten with rods; shall his shins be rubbed with a broomstick until they bleed?

  —Judge Advocate General George B. Davis, 1902

  Terrible! Say you? Well, yes. War ought to be terrible. The trouble is that it has ceased to be terrible to altogether too many men.

  —Anonymous officer, U.S. Army, 1896

  FRANCIS LIEBER DIED suddenly on October 2, 1872. He was seventy-four years old. Right up until his death, he had worked to expand the influence of the instructions he had written for Lincoln and the Union Army. Even as the Civil War raged, he launched General Orders No. 100 across the Atlantic. “Old Hundred,” he began to call it. His longtime correspondent, the prominent Swiss-born jurist Johann Caspar Bluntschli at the University of Heidelberg, translated the code and added the terms of a treaty signed by twelve European nations at Geneva in 1864. The resulting book produced an influential German code just in time for Prussia’s 1866 war with Austria. Lieber continued to develop the law of war back at home as well. When he died six years later, he left a sprawling unfinished manuscript charting a future for Old Hundred and its terms in the world.

  It fell to Norman Lieber to carry on his father’s efforts. Among the three Lieber boys, Norman alone had escaped the war unscathed, though he had fought in several of its terrible clashes. He had served as a judge advocate under Joseph Holt in the last year of the conflict. After the war, he had worked alongside his father in the rebel archives and then done a stint in the Department of Dakota in Minnesota, where the Army clashed with the Blackfeet and the Sioux Indians. By the late 1870s, he was back east teaching the laws of war at West Point. In 1884, Lieber became acting judge advocate general. In 1895, the War Department made his post permanent. By the time Lieber retired in 1901, he was the longest-serving head of the Judge Advocate corps in Army history, a distinction he still holds more than a century later.

  With the younger Lieber presiding over the office of the Judge Advocate General, General Orders No. 100 began a new career. The code of 1863 took root in the inhospitable soil of the Indian wars in the American West. It shaped a new generation of lawmaking across the Atlantic. And it ventured gingerly into the Pacific. In 1862, the ideas that animated Lincoln’s instructions to the Union Army had been decidedly unorthodox; they had embodied Clausewitz’s fierce rejection of the rational Newtonianism of nineteenth-century military thought. Now Norman Lieber helped make such views the conventional wisdom of the Army officer corps.

  But for all its success, one thing was certain. The code did not bring a stop to atrocities in combat. In that dismaying truth lay a clue to the nature of the law the Civil War had shaped.

  Stay the Hand of Retribution

  ON APRIL 11, 1873, two small groups of men, one Indian and one white, walked toward one another in the boulder-strewn lavabed moonscape on the south shore of Lake Tule in northern California. For six weeks the men had been meeting on and off again to try to craft a resolution to an intractable standoff. On one side stood the U.S. Army; on the other, a band of 150 Modoc Indians trying to repossess their old lands after their exile to an unsuitable reservation in Oregon.

  For months, 600 soldiers under Major General Edward Canby had tried to capture the Modocs by force, only to be turned back time and again by 50 warriors led by the Modocs’ chief, a man named Kintpuash, known to most as “Captain Jack.” Canby enjoyed superior numbers, but Jack’s men fought brilliantly from impenetrable positions in the fissures and caves of the lavabeds. And so, in early 1873, Canby resorted to peace negotiations. Captain Jack readily agreed to talk, in part because there seemed no prospect that he would be able to break out of the inhospitable rocky landscape without a negotiated peace. But unbeknownst to Canby, Captain Jack was locked in a struggle with dissident members of his own group who believed that peace negotiations were unwise. “You are like an old squaw,” his critics jeered. They said he was “not fit to be chief” because he had never killed a white man. And on the night of April 10, the dissidents had finally gained a decisive victory in internal tribe deliberations. Jack agreed reluctantly that the next day he would kill Canby and the other peace commissioners.

  As the two parties came together, Captain Jack drew his pistol and shot Canby dead. A frightful slaughter ensued. Two others in the U.S. delegation were killed almost instantly and a fourth white commissioner was badly wounded. The peace talks had come to a violent end.

  With hopes of a peaceful resolution dashed, President Grant and General William Sherman (now the commanding general of the U.S. Army) authorized the “utter extermination” of the Modocs. Sherman called on General Jefferson C. Davis to root out the tribe. Davis (who was no relation to the Confederate president) had commanded one of Sherman’s corps on the March to the Sea in 1864, and his conduct there suggested that he was unlikely to be held back by mawkish humanitarianism. In December 1864, Davis had ordered a pontoon bridge pulled up after him, leaving hundreds of freedpeople to the mercy of the Confederate forces trailing him. An unknown number of them drowned trying to swim across the river. Now Sherman ordered Davis to “shoot the leaders” of the Modoc band, to “hang the murderers,” and to disperse the remaining tribe members so that the memory of the Modoc tribe would be erased within a generation.

  Davis finally caught up to Captain Jack in June 1873 when the Modoc dissidents defected and led him to the Modoc chief’s hideaway. With Jack in custody at last, Davis assumed he would simply execute the Indian as a killer without the formality of legal process. Newspapers around the country had called for no less as a response to Captain Jack’s act of treachery. The New York Herald had predicted confidently that there would be “no desire to stay the hand of retribution.” The National Republican in Washington, D.C., had urged that the Modocs should “be exterminated, root and branch.” Even supporters of President Grant’s recently inaugurated peace policy toward the Indians conceded that the Modocs should be killed.

  Within hours of Captain Jack’s capture, Davis issued orders for the Modoc chief’s execution. He scheduled the hanging for the next day at sunset. But as Davis drew up a list of those he intended to execute along with the Modoc chief, news arrived from Washington. The president ordered Davis to hold the Modoc prisoners pending further instructions.

  THE INDIAN WARS
of the post–Civil War West threw American views of the laws of armed conflict into a vast confusion. After 1871, Congress moved away from treating Indian tribes as independent nations by announcing that the United States would no longer enter into treaties with Indian tribes. Strangely, the treatment of Indians in armed conflict drew ever more heavily on principles drawn from the laws of war—laws that had typically applied only in armed conflict among civilized states.

  The instructions of 1863 seemed to have excluded Indians from their scope; international law, Lieber’s text explained, protected only those who lived in modern organized sovereign states. Nonetheless, early signs of a turn toward the laws of war in Indian conflicts arose during the Civil War in the treatment of the Dakota Indians in Minnesota.

  In August and September 1862, Dakota warriors associated with the Sioux Nation had launched a bloody series of assaults to reclaim land they had ceded to the United States. Disputes had arisen over payment for the land. The Dakota attacked white settler homesteads across the southwestern part of the state, killing 358 settlers in all, including women and children.

  The American response was swift and ferocious. Major General John Pope, still smarting from his humiliating defeat at the Second Battle of Bull Run and now virtually exiled to the Military Department of the Northwest, ordered Colonel Henry Hastings Sibley to treat the Dakota “as maniacs or wild beasts,” and declared his intent “utterly to exterminate” them. Pope’s attitude was shared widely. “Nits,” one soldier told Colonel Sibley, “make lice.”

  Yet in September and October, when he took into custody some 2,000 Dakota Indians, Colonel Sibley did not execute them summarily. Instead, he convened a five-officer military commission and tried the Dakota for murder and related crimes. Minnesota settlers complained bitterly about the delayed retaliation against the Dakota. (“Daniel Boone,” one newspaper editor protested, had “instituted no trial by jury when he caught a savage.”) But the settlers did not have to wait long. The military trials began two days after Sibley had begun to take the Dakota into custody. On the first day, the commission tried sixteen men, sentencing ten to death by hanging and acquitting six others. When the trials concluded on November 3, the commission had heard charges against 392 Dakota for murder, rape, and robbery. The commission convicted 323 warriors, 303 of whom it sentenced to death.

  The log cabin behind these Dakota-Sioux Indian prisoners was the site for military commission trials of 392 warriors, some 303 of whom were initially sentenced to death.

  Historians of the Dakota conflict have focused on the procedural shortcomings of the military commissions, which were considerable. Most trials were extremely short: some lasted no more than five minutes. Key evidence was often provided by cooperating witnesses who otherwise faced execution themselves. No defense counsel appeared.

  But the more interesting question is not whether the military commission trials were paragons of civil libertarian virtue (they were not), or even whether they lived up to the already dubious standards of trials in nineteenth-century courts (they did not). The real question is why U.S. officials held trials at all.18 Summary executions, after all, had been standard practice for American soldiers capturing Indians since the seventeenth century. In 1777, George Rogers Clark had executed Indians with an ax in full view of British forces at Fort Vincennes along the Wabash River. Forty years later, in the First Seminole War in Florida, Andrew Jackson executed Francis the Prophet and Homathlemico without even the pretense of a trial. In the Black Hawk War of 1832 in which Lincoln had played a small role, frontier volunteers had killed even Indian children without a second thought. “Kill the nits and you’ll have no lice,” said a member of the Illinois militia.

  As recently as the 1850s, American armed forces in the West had been executing Indians summarily without compunction. In northern California, U.S. troops had trapped Indians on islands and killed them in what one officer described as natural slaughter pens. Colonel William S. Harney, known as “Squaw Killer,” forced nearly 200 Nebraska Sioux into caves and killed 85 of them after a member of the tribe killed a white settler’s cow. Even Ethan Allen Hitchcock, who was sharply critical of Harney and sympathized with many Indians, led an expedition along the Coquille River in Oregon that killed an entire Indian encampment in revenge for the killing of five white traders. Indeed, by 1862, some commanders in Missouri were applying the policy of summary execution not only to Indians but to Confederate guerrillas.

  Yet even as summary executions continued, Indian campaigns after the Mexican War had begun little by little to adopt the trappings of a different approach. In the Oregon Territory in the 1850s, for example, Major Granville O. Haller, a veteran of the Mexican conflict, used hastily convened military commissions like those Winfield Scott had employed in Mexico to justify the execution of Wenneste Indian warriors accused of killing white settlers.

  The military leadership in Minnesota had probably not learned about military commissions first-hand in Mexico. Henry Hastings Sibley had no military experience to speak of. But he may have heard talk of the Mexican commissions. He almost certainly got wind of the military commissions taking place in 1862 in Missouri under General Henry Halleck, who had just been promoted to general-in-chief of the Union Army. Only days before Sibley ordered the Minnesota trials, newspapers around the country had published Lincoln’s September 24 proclamation authorizing military commission trials of rebel insurgents and “their aiders and abettors.” By the last week of September 1862, military commissions were becoming standard practice in the U.S. armed forces. Sibley probably convened the commission for the Dakota simply because the idea of military commissions was in the air.

  Once military commissions were in place in Minnesota, the laws of war began to shape the fate of the Dakota prisoners. Even though Francis Lieber had excluded Indians from the protections of the laws of war, he insisted that there were limits to what armies could do to them or any civilized enemy. Lieber thought that torture, for example, would clearly be beyond the pale, even if Indians inflicted it on U.S. soldiers first. Torture, he warned, would turn an army into a savage force like the one it was fighting. Now Secretary of the Navy Gideon Welles cautioned Lincoln against executing 300 Indians on similar grounds; it would, he warned, make the United States as much like “barbarians” as the Indians themselves. The Commissioner of Indian Affairs worried similarly that punishing men “who have laid down their arms and surrendered themselves as prisoners” would be “contrary to the spirit of the age.” At a moment when the South had captured thousands of Union soldiers, when Lincoln’s critics pilloried him for initiating a barbaric war of servile insurrection, the North could not afford to draw the charge of cruelly executing prisoners of war. And so, after agonizing over the cases for a month, Lincoln resolved them by applying a principle drawn from the laws of war. Distinguishing between those Indian warriors who had participated in massacres and those who had fought against soldiers and militia, he approved the death sentences of thirty-nine Dakota warriors and left the sentences of the others unresolved.

  The implications of the formal framework of the laws of war became still clearer a year later when Sibley convened another military commission to try a sixteen-year-old Dakota named Wowinape, who had fled north to escape capture in 1862. The commission sentenced Wowinape to death by hanging for murders in the massacres of August 1862. But taking a cue from Lincoln’s attention to the distinctions of the laws of war, General John Pope reversed the conviction on the basis of a legal technicality (a “technical difficulty,” he called it) in the military commission that had convicted him.19 Rarely if ever had U.S. military force against Indians been so closely regulated by law. But then, the United States had rarely been prepared to execute so many Indian warriors at once, by law or otherwise. The military commissions had served to restrain the use of sheer force. But commissions had also been a legitimating device, a way of moving forward with mass executions on an unprecedented scale.

  THE DAKOTA TRIALS loomed in
the background in June 1873 when General Jefferson C. Davis reluctantly called a halt to the swift execution of Captain Jack and the Modoc warriors in Oregon. General John M. Schofield of the Army’s Division of the Pacific expressed grave concerns about the propriety of summary military executions under the laws of war. (Schofield had received a personalized copy of General Orders No. 100 from Henry Halleck ten years before.) Summary executions troubled William Tecumseh Sherman in Washington, too. But the military men were just as uncomfortable with Oregon governor LaFayette Grover’s proposal to try Captain Jack and his confederates as ordinary criminals in state court. Neither path seemed right.

  It fell to U.S. Attorney General George Henry Williams to craft a legal strategy for the Modoc case. As a senator from Oregon a few years before, Williams had been a core member of the radical wing of the Republican Party and an author of the 1867 Reconstruction Act with its broad reauthorization of military commissions. He had introduced the Tenure of Office Act, which aimed to seize congressional control of the War Department from Andrew Johnson, and he had been a principal advocate of Johnson’s impeachment when the president tried to reclaim his authority. Now, building on his work in 1867, Williams advised President Grant that a military commission was the right way to proceed. Citing the prosecution of Henry Wirz and relying heavily on Attorney General Speed’s opinion in the Lincoln assassination case, Williams argued that General Orders No. 100 from the Civil War established the legal authority of military commissions to try violations of the laws of war. Its Article 13, he said, recognized a “common law of war” between nations. Its Articles 40 and 41 rejected the existence of any other body of law between nations at war with one another. And its Article 59 expressly allowed the prosecution of a soldier for offenses against the laws of war.