Lincoln's Code

by John Fabian Witt

  It would of course be silly to deny the vast differences that separate the present day from the age that witnessed the rise of the modern laws of war. The sheer density of the relevant treaties, for example, is an utter novelty of the past sixty years. The Declaration of Paris of 1856 and the first Geneva Convention of 1864 made up a few thin reeds by comparison to the dense thickets of legal rules set forth in the four separate Geneva Conventions of 1949 and the two Additional Protocols to the Geneva Conventions negotiated (but not ratified) by the United States in 1977. If we add the 1985 Convention Against Torture, various human rights treaties of the post–World War II era, and the 1998 Rome Statute of the International Criminal Court, the picture becomes truly daunting. Even the Hague Convention of 1899 failed to create as dense a body of treaty law as is now standard in the field. Nor did the nineteenth century know anything like the twenty-four-hour news cycle and inexpensive video technology, or the presence of armed forces operating under the mandate of the United Nations.

  One thing all this means is that statesmen like Washington, Marshall, John Quincy Adams, Winfield Scott, and Lincoln—even Francis Lieber—had what today would be unthinkable discretion to shape the laws of war as they saw fit. The laws of war are no longer subject to radical remaking in the same way they were in 1775 or 1847 or 1862 or 1899. American contributions have had much to do with this. The success of Lincoln’s and Lieber’s 1863 code, and its promulgation around the world, has in this sense helped constrain U.S. presidents a century and a half later, presidents who find themselves in a multilateral legal world even as the United States is (for now, anyway) the world’s only military superpower.

  Sharp breaks between past and present limit history’s usefulness as a guide. History won’t tell us what interrogation techniques are appropriate and permissible. It won’t tell us whom we should prosecute in military commissions, or for what crimes. It won’t tell us how many civilian casualties are permissible, or how much certainty we should require when issuing drone strikes against faraway people. But history does put us face-to-face with past generations’ efforts to manage many of the same kinds of dilemmas we face today. And the tumultuous history of the laws of war offers a sense of what we can reasonably expect. Those who expect too much will be let down. How could regulating warfare be anything other than rife with unsatisfactory moral compromise and enduring controversy? On the other hand, those who expect too little threaten to undo the law’s capacity to accomplish gravely important things on our behalf.

  If there is one thing in this turbulent story that will not vary, if there is one firm rock on which we can rely, it is that to make our way through the next crisis will require deliberations on the nature of just wars: deliberations like those Lincoln engaged in during the summer and fall of 1862 as he prepared for Emancipation and set the stage for the code that followed. The laws of war require commitment to act on our best notions of justice in a world beset by violence and danger. Sometimes that commitment will require the use of force, notwithstanding all war’s perils. But when we do use force, we will have to balance our ideas of justice with humility about our ends. This may be what President Barack Obama had in mind in his 2009 Nobel Peace Prize address when, in a speech praised as warmly by his critics as by his supporters, he defended the use of armed force but warned against those who would fight with the moral certainty of crusaders, convinced beyond the shadow of a doubt that they carry the will of God on their side. Lincoln proposed the same idea in his Second Inaugural Address, when he promised to win the war but confessed the sins of the North nonetheless. Lincoln’s General Orders No. 100 aimed to establish a framework for making decisions in wartime that would make salient both of war’s twin imperatives: resolve and humility. All too often Americans have failed to live up to the example Lincoln set. How could we not? But what is equally striking—what is remarkable and enduring—is that men and women have worked ever since to preserve the framework he helped to establish.

  The opening page of a rare original copy of General Orders No. 100. The corrected spelling of its drafter’s name may be in Francis Lieber’s own hand.

  Appendix

  GENERAL ORDERS, NO. 100.

  WAR DEPARTMENT,

  ADJUTANT GENERAL’S OFFICE,

  Washington, April 24, 1863.

  The following “Instructions for the Government of Armies of the United States in the Field,” prepared by Francis Lieber, LL.D., and revised by a Board of Officers, of which Maj. Gen. E. A. Hitchcock is president, having been approved by the President of the United States, he commands that they be published for the information of all concerned.

  By order of the Secretary of War:

  E. D. TOWNSEND,

  Assistant Adjutant-General.

  INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES OF THE UNITED STATES IN THE FIELD.

  SECTION I.

  Martial law—Military jurisdiction—Military necessity—Retaliation

  1. A place, district, or country occupied by an enemy stands, in consequence of the occupation, under the Martial Law of the invading or occupying army, whether any proclamation declaring Martial Law, or any public warning to the inhabitants, has been issued or not. Martial Law is the immediate and direct effect and consequence of occupation or conquest.

  The presence of a hostile army proclaims its Martial Law.

  2. Martial Law does not cease during the hostile occupation, except by special proclamation, ordered by the commander-in-chief; or by special mention in the treaty of peace concluding the war, when the occupation of a place or territory continues beyond the conclusion of peace as one of the conditions of the same.

  3. Martial Law in a hostile country consists in the suspension, by the occupying military authority, of the criminal and civil law, and of the domestic administration and government in the occupied place or territory, and in the substitution of military rule and force for the same, as well as in the dictation of general laws, as far as military necessity requires this suspension, substitution, or dictation.

  The commander of the forces may proclaim that the administration of all civil and penal law shall continue, either wholly or in part, as in times of peace, unless otherwise ordered by the military authority.

  4. Martial Law is simply military authority exercised in accordance with the laws and usages of war. Military oppression is not Martial Law; it is the abuse of the power which that law confers. As Martial Law is executed by military force, it is incumbent upon those who administer it to be strictly guided by the principles of justice, honor, and humanity—virtues adorning a soldier even more than other men, for the very reason that he possesses the power of his arms against the unarmed.

  5. Martial Law should be less stringent in places and countries fully occupied and fairly conquered. Much greater severity may be exercised in places or regions where actual hostilities exist, or are expected and must be prepared for. Its most complete sway is allowed—even in the commander’s own country—when face to face with the enemy, because of the absolute necessities of the case, and of the paramount duty to defend the country against invasion.

  To save the country is paramount to all other considerations.

  6. All civil and penal law shall continue to take its usual course in the enemy’s places and territories under Martial Law, unless interrupted or stopped by order of the occupying military power; but all the functions of the hostile government—legislative, executive, or administrative—whether of a general, provincial, or local character, cease under Martial Law, or continue only with the sanction, or if deemed necessary, the participation of the occupier or invader.

  7. Martial Law extends to property, and to persons, whether they are subjects of the enemy or aliens to that government.

  8. Consuls, among American and European nations, are not diplomatic agents. Nevertheless, their offices and persons will be subjected to Martial Law in cases of urgent necessity only: their property and business are not exempted. Any delinquency they commit against the es
tablished military rule may be punished as in the case of any other inhabitant, and such punishment furnishes no reasonable ground for international complaint.

  9. The functions of Ambassadors, Ministers, or other diplomatic agents, accredited by neutral powers to the hostile government, cease, so far as regards the displaced government; but the conquering or occupying power usually recognizes them as temporarily accredited to itself.

  10. Martial Law affects chiefly the police and collection of public revenue and taxes, whether imposed by the expelled government or by the invader, and refers mainly to the support and efficiency of the army, its safety, and the safety of its operations.

  11. The law of war does not only disclaim all cruelty and bad faith concerning engagements concluded with the enemy during the war, but also the breaking of stipulations solemnly contracted by the belligerents in time of peace, and avowedly intended to remain in force in case of war between the contracting powers.

  It disclaims all extortions and other transactions for individual gain; all acts of private revenge, or connivance at such acts.

  Offenses to the contrary shall be severely punished, and especially so if committed by officers.

  12. Whenever feasible, Martial Law is carried out in cases of individual offenders by Military Courts; but sentences of death shall be executed only with the approval of the chief executive, provided the urgency of the case does not require a speedier execution, and then only with the approval of the chief commander.

  13. Military jurisdiction is of two kinds: first, that which is conferred and defined by statute; second, that which is derived from the common law of war. Military offences under the statute law must be tried in the manner therein directed; but military offences which do not come within the statute must be tried and punished under the common law of war. The character of the courts which exercise these jurisdictions depends upon the local laws of each particular country.

  In the armies of the United States the first is exercised by courts-martial; while cases which do not come within the “Rules and Articles of War,” or the jurisdiction conferred by statute on courts-martial, are tried by military commissions.

  14. 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.

  15. Military necessity 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 either positively pledged, regarding agreements entered into during the war, or supposed by the modern law of war to exist. 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.

  16. Military necessity does not admit of cruelty, that is, the infliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor of torture to extort confessions. It does not admit of the use of poison in any way, nor of the wanton devastation of a district. It admits of deception, but disclaims acts of perfidy; and, in general, military necessity does not include any act of hostility which makes the return to peace unnecessarily difficult.

  17. War is not carried on by arms alone. It is lawful to starve the hostile belligerent, armed or unarmed, so that it leads to the speedier subjection of the enemy.

  18. When the commander of a besieged place expels the non-combatants, in order to lessen the number of those who consume his stock of provisions, it is lawful, though an extreme measure, to drive them back, so as to hasten on the surrender.

  19. Commanders, whenever admissible, inform the enemy of their intention to bombard a place, so that the non-combatants, and especially the women and children, may be removed before the bombardment commences. But it is no infraction of the common law of war to omit thus to inform the enemy. Surprise may be a necessity.

  20. Public war is a state of armed hostility between sovereign nations or governments. It is a law and requisite of civilized existence that men live in political, continuous societies, forming organized units, called states or nations, whose constituents bear, enjoy, and suffer, advance and retrograde together, in peace and in war.

  21. The citizen or native of a hostile country is thus an enemy, as one of the constituents of the hostile state or nation, and as such is subjected to the hardships of the war.

  22. Nevertheless, as civilization has advanced during the last centuries, so has likewise steadily advanced, especially in war on land, the distinction between the private individual belonging to a hostile country and the hostile country itself, with its men in arms. The principle has been more and more acknowledged that the unarmed citizen is to be spared in person, property, and honor as much as the exigencies of war will admit.

  23. Private citizens are no longer murdered, enslaved, or carried off to distant parts, and the inoffensive individual is as little disturbed in his private relations as the commander of the hostile troops can afford to grant in the overruling demands of a vigorous war.

  24. The almost universal rule in remote times was, and continues to be with barbarous armies, that the private individual of the hostile country is destined to suffer every privation of liberty and protection, and every disruption of family ties. Protection was, and still is with uncivilized people, the exception.

  25. In modern regular wars of the Europeans, and their descendants in other portions of the globe, protection of the inoffensive citizen of the hostile country is the rule; privation and disturbance of private relations are the exceptions.

  26. Commanding generals may cause the magistrates and civil officers of the hostile country to take the oath of temporary allegiance or an oath of fidelity to their own victorious government or rulers, and they may expel every one who declines to do so. But whether they do so or not, the people and their civil officers owe strict obedience to them as long as they hold sway over the district or country, at the peril of their lives.

  27. The law of war can no more wholly dispense with retaliation than can the law of nations, of which it is a branch. Yet civilized nations acknowledge retaliation as the sternest feature of war. A reckless enemy often leaves to his opponent no other means of securing himself against the repetition of barbarous outrage.

  28. Retaliation will, therefore, never be resorted to as a measure of mere revenge, but only as a means of protective retribution, and, moreover, cautiously and unavoidably; that is to say, retaliation shall only be resorted to after careful inquiry into the real occurrence, and the character of the misdeeds that may demand retribution.

  Unjust or inconsiderate retaliation removes the belligerents farther and farther from the mitigating rules of a regular war, and by rapid steps leads them nearer to the internecine wars of savages.

  29. Modern times are distinguished from earlier ages by the existence, at one and the same time, of many nations and great governments related to one another in close intercourse.

  Peace is their normal condition; war is the exception. The ultimate object of all modern war is a renewed state of peace.

  The more vigorously wars are pursued, the better it is for humanity. Sharp wars are brief.

  30. Ever since the formation and co-existence of modern nations, and ever since wars have become great national wars, war has come to be acknowledged not to be its own end, but the means to obtain great ends of state, or to consist in defence against wrong; and no conventional restriction of t
he modes adopted to injure the enemy is any longer admitted; but the law of war imposes many limitations and restrictions on principles of justice, faith, and honor.

  SECTION II.

  Public and private property of the Enemy—Protection of persons, and especially women; of religion, the arts and sciences—Punishment of crimes against the inhabitants of hostile countries.

  31. A victorious army appropriates all public money, seizes all public movable property until further direction by its government, and sequesters for its own benefit or of that of its government all the revenues of real property belonging to the hostile government or nation. The title to such real property remains in abeyance during military occupation, and until the conquest is made complete.

  32. A victorious army, by the martial power inherent in the same, may suspend, change, or abolish, as far as the martial power extends, the relations which arise from the services due, according to the existing laws of the invaded country, from one citizen, subject, or native of the same to another.

  The commander of the army must leave it to the ultimate treaty of peace to settle the permanency of this change.

  33. It is no longer considered lawful—on the contrary, it is held to be a serious breach of the law of war—to force the subjects of the enemy into the service of the victorious government, except the latter should proclaim, after a fair and complete conquest of the hostile country or district, that it is resolved to keep the country, district, or place permanently as its own, and make it a portion of its own country.

  34. As a general rule, the property belonging to churches, to hospitals, or other establishments of an exclusively charitable character, to establishments of education, or foundations for the promotion of knowledge, whether public schools, universities, academies of learning or observatories, museums of the fine arts, or of a scientific character—such property is not to be considered public property in the sense of paragraph 31; but it may be taxed or used when the public service may require it.