Union camps for southern prisoners swelled with new detainees after the end of prisoner exchanges. Though less notorious than the southern camps, they were nearly as deadly as their Confederate counterparts. Confederate soldiers here await transportation at Belle Plain Landing, Virginia.
At the end of July 1863, just days before he sat for this photograph, Lincoln issued an order drawing expressly on the code and promising to retaliate against southern soldiers for the execution or enslavement of black Union soldiers or their white officers.
Nathan B. Forrest commanded Confederate troops at Fort Pillow, the site of the most notorious (but not the only) massacre of black Union soldiers.
The hooded bodies of three men and one woman convicted and sentenced to death by a military commission for conspiring with John Wilkes Booth to assassinate Lincoln and high-ranking members of his administration.
The terribly overcrowded Confederate camp at Andersonville, Georgia, was the war’s most notorious prisoner of war camp, though not its deadliest. Here Union soldiers draw their rations near the main gate.
Captain Henry Wirz, the commander at Andersonville, was one of nearly 1,000 Confederate soldiers or sympathizers to face law of war charges in front of Union military commissions during or just after the war.
The capture of Jefferson Davis in the spring of 1865 touched off two years of debate over his fate; northern publications like Harper’s Weekly pointedly observed the contrast between the conditions of Davis’s confinement and those of Union soldiers held prisoner during the war.
Francis Lieber’s son G. Norman Lieber presided over the Judge Advocate General’s office from 1884 to 1901. He brought the code his father drafted to Indian wars in the West and to the war in the Philippines.
Three hundred and three Dakota Sioux warriors were sentenced to death by military commission in 1862; Lincoln approved the sentences of thirty-nine, including the man pictured here, whom he decided had participated in indiscriminate warfare against settlers.
A nasty conflict with Modoc Indians in Oregon in 1873 reprised the scalping scenes of the pre–Civil War era.
“Captain Jack,” standing at right, led the Modoc band before being executed for killing a U.S. officer under a flag of truce. Men like Andrew Jackson had executed the Indians they captured without any formality; now captured Indian warriors like Jack were tried by military commission.
President Grover Cleveland proposed to execute Geronimo, but he and his band of Chiricahua Apache—men, women, and children alike—were taken by train to Florida from their native Southwest and spent more than two decades as prisoners of war.
After the Civil War, the Union’s law of war instructions of 1863 began to spread around the world. The Franco-Prussian War of 1870–71 saw the code’s principles applied to the irregular French fighters who resisted Prussian occupation.
A Swiss-born jurist named Johann Caspar Bluntschli translated the American code into German and spread its influence in Europe.
The formidable Alfred Thayer Mahan dominated the U.S. delegation at a conference in The Hague in 1899 that set the terms for the laws of war the world over.
U.S. armed forces in the Philippines engaged in the widespread use of torture tactics such as the water cure, demonstrated here by a team of American soldiers.
Colonel Edwin F. Glenn led a team of water cure experts in the Philippines and was court-martialed for violating the 1863 code’s prohibition on torture. Twelve years later, he drafted the field manual on the laws of war that American officers would carry into two world wars.
About the Author
JOHN FABIAN WITT is the Allen H. Duffy Class of 1960 Professor of Law at Yale Law School. He has taught at Columbia University, Harvard Law School, the University of Leiden in The Netherlands, and the University of Tokyo. His work has appeared in the New York Times, Slate, the Harvard Law Review, the Yale Law Journal, and numerous other scholarly journals. He is the author of two books published by Harvard University Press: Patriots and Cosmopolitans: Hidden Histories of American Law (2007), and The Accidental Republic: Crippled Workingmen, Destitute Widows, and the Remaking of American Law (2004). In 2010, Witt was awarded a Guggenheim Fellowship for his work on the history of the laws of war. He lives with his wife and children in New Haven, Connecticut.
Abbreviations Used in the Notes
AG Opinions
Official Opinions of the Attorneys General of the United States (Washington, DC, 1852–), 43 vols.
AL
Abraham Lincoln
ALP LC
Abraham Lincoln Papers, Library of Congress, Washington, DC
Annals
The Debates and Proceedings in the Congress of the United States (Washington, DC: Gales & Seaton, 1834–56), 42 vols.
ASP
American State Papers: Documents, Legislative and Executive, of the Congress of the United States . . . Selected and Edited under the Authority of Congress (Washington, DC: Gales & Seaton, 1832–61), 38 vols.
Basler
Roy Basler, ed., The Collected Works of Abraham Lincoln (New Brunswick, NJ: Rutgers University Press, 1953), 8 vols.
Bevans
Charles I. Bevans, ed., Treaties and Other International Agreements of the United States of America, 1776–1949 (Washington, DC, 1968), 13 vols.
BL
Beinecke Library, Yale University, New Haven, CT
Cong. Globe
The Congressional Globe (Washington, DC: Blair & Rives, 1834–73), 44 vols.
FL
Francis Lieber
FLP HL
The Papers of Francis Lieber, Huntington Library, San Marino, CA
FLP JHU
The Papers of Francis Lieber, Johns Hopkins Library, Baltimore, MD
FLP LC
The Papers of Francis Lieber, Library of Congress, Washington, DC
HL
Huntington Library, San Marino, CA
Instructions
Instructions for the Government of Armies of the United States in the Field (New York: Van Nostrand, 1863)
JCC
Journals of the Continental Congress (Washington, DC: Government Printing Office, 1904–37), 34 vols.
JHP LC
Joseph Holt Papers, Library of Congress
Kappler
Charles J. Kappler, ed., Indian Affairs: Laws and Treaties (Washington, DC: Government Printing Office, 1904–71), 7 vols.
LC
Library of Congress, Washington, DC
Malloy
William M. Malloy, ed., Treaties, Conventions, International Acts, Protocols, and Agreements, 1776–1909 (Washington, DC: Government Printing Office, 1910), 2 vols.
Miller
Hunter Miller, ed., Treaties and Other International Acts of the United States of America (Washington, DC: Government Printing Office, 1931–48), 8 vols.
NARA
National Archives and Records Administration, Washington, DC
NYHS
New-York Historical Society Library, New York, NY
OR
War of the Rebellion: A Compilation of the Official Records of the Union and Confederate Armies (Washington, DC: Government Printing Office, 1880–1901), 70 vols.
ORN
Official Records of the Union and Confederate Navies in the War of the Rebellion (Washington, DC: Government Printing Office, 1894–1922), 30 vols.
PAH
Harold C. Syrett et al., eds., The Papers of Alexander Hamilton (New York: Columbia University Press, 1961–87), 27 vols.
PAJ
Sam B. Smith et al., eds., The Papers of Andrew Jackson (Knoxville, TN: University of Tennessee Press, 1980–2007), 8 vols.
PBF
Leonard W. Laboree et al., eds., The Papers of Benjamin Franklin (New Haven, CT: Yale University Press, 1957–), 40 vols.
PDW
Charles M. Wiltse, ed., Papers of Daniel Webster (Hanover, NH: University Press of New England, 1974–89), 14 vols.
PEMS
Papers of Edwi
n M. Stanton, Library of Congress, Washington, DC
PGW
W. W. Abbot et al., eds., The Papers of George Washington (Charlottesville, VA: University of Virginia Press, 1983–)
Pitman
The Assassination of President Lincoln and the Trial of the Conspirators, comp. & arr. Benn Pitman (New York: Moore, Wilstach & Baldwin, 1865)
PTJ
Julian P. Boyd et al., eds., The Papers of Thomas Jefferson (Princeton, NJ: Princeton University Press, 1950–), 37 vols.
Richardson
James D. Richardson, ed., A Compilation of the Messages and Papers of the Presidents, 1789–1897 (Washington, DC: Government Printing Office, 1896–1899), 10 vols.
Stat.
United States Statutes at Large (Boston & Washington, DC, 1848–), 122 vols.
WGW
John C. Fitzpatrick, ed., The Writings of George Washington: From the Original Manuscript Sources, 1745–1799 (Washington, DC: Government Printing Office, 1931–44), 39 vols.
Notes
A full bibliography of the sources used in writing this book appears at the website of the Yale Law School Library. See http://documents.law.yale.edu/lincolns-code.
Prologue
1 Christmas Day: Matilda Lieber to FL, December 24, 1862, box 34, FLP HL; FL to Henry Halleck, December 16, 1862, box 27 FLP HL; FL to Matilda Lieber, December 18, 19, 20, 22, 24, 26, and 27, 1862, all in box 36, FLP HL; Photograph of Francis Lieber, Columbia College Class of 1862 Album, Columbia University Archives, New York, NY.
1 At the request of: FL to Halleck, December 7, 1862, & December 9, 1862, box 27, FLP HL; FL to Benson J. Lossing, January 21, 1866, book 2, FLP LOC; Matthew J. Mancini, “Francis Lieber, Slavery, and the ‘Genesis’ of the Laws of War,” Journal of Southern History 77, no. 2 (May 2011): 325–48.
2 President Lincoln will issue: OR, 2: 5, 671.
2 will soon cross the Atlantic: G. I. A. D. Draper, “Implementation of International Law in Armed Conflicts,” International Affairs 48 (1972): 55; Peter Holquist, The Russian Empire as a “Civilized State”: International Law as Principle and Practice in Imperial Russia, 1874–1878, The National Council for Eurasian and East European Research, Washington, DC, 2006.
3 “hard hand of war”: WTS to Henry Halleck, December 24, 1864, in Brooks D. Simpson & Jean V. Berlin, eds., Sherman’s Civil War: Selected Correspondence of William T. Sherman, 1860–1865 (Chapel Hill: University of North Carolina Press, 1999), 776.
3 more aggressive, not less: Mark Grimsley, The Hard Hand of War: Union Military Policy Toward Southern Civilians, 1861–1865 (New York: Cambridge University Press, 1995).
3 “simpering sentimentalist”: FL to Charles Sumner, n.d. [January 1865?], LI 3763, box 45, FLP HL.
3–4 His hero . . . Clausewitz: Lieber, Manual of Political Ethics, 2: 631.
4 urged blow after blow: FL to Charles Sumner, January 20, 1865, box 45, FLP HL (“strike, strike and strike again”).
4 “The more vigorously wars”: Instructions, art. 29.
4 civilian property: Ibid., art. 15 & 38.
4 forced return of civilians: Ibid., art. 18.
4 starving of noncombatants: Ibid., art. 17.
4 enemy guerrillas: Ibid., art. 82.
4 “To save the country”: Ibid., art. 5.
4 “unrelenting and vindictive”: James A. Seddon to Robert Ould, June 24, 1863, OR, 2: 6, 46.
4 “license for a man”: Robert Ould to Lt. Col. William Ludlow, June 5, 1863, OR, 2: 5, 744.
4 Davis condemned the code . . . military necessity: Davis’s annual message to the Confederate Congress, December 7, 1863, OR, 4: 2, 1047–48.
4 “securing the ends of the war”: Instructions, art. 14.
5 a long American tradition of respect: Good examples of this story in trade books include Jane Mayer, The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals (New York: Doubleday, 2008); Philippe Sands, Torture Team: Rumsfeld’s Memo and the Betrayal of American Values (New York: Palgrave, 2008). Among historians, see Edwin Burrows, Forgotten Patriots: The Untold Story of American Prisoners During the Revolutionary War (New York: Basic Books, 2008); David Hackett Fischer, Washington’s Crossing (New York: Oxford University Press, 2004); and Louis Fisher, American Military Tribunals and Presidential Power: American Revolution to the War on Terrorism (Lawrence: University of Kansas Press, 2005). For lawyers, see David Glazier, “Playing by the Rules: Combating Al Qaeda Within the Laws of War,” William & Mary Quarterly 51 (2009): 980–82; and Jordan J. Paust, “In Their Own Words: Affirmations of the Founders, Framers, and Early Judiciary Concerning the Binding Nature of the Customary Law of Nations,” University of California Davis Journal of International Law & Policy 14 (2008): 209. In journalism, see the editorial board of the New York Times: “Terrorism and the Law,” July 17, 2011. In the political arena, see Congressional Record, vol. 150, pp. 12128–29 (2004) (comments of Senator Durbin).
5 in historians’ briefs: Brief of Military Law Historians, Scholars, and Practitioners, Hamdan v. Rumsfeld, U.S. Supreme Court, No. 05–184 (2006).
5 Supreme Court’s cautious holdings: Hamdan v. Rumsfeld, 548 U.S. 557, 595–98 (2006).
5 international law has taken on: Preeminent here is Jack Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush Administration (New York: W. W. Norton Co., 2007). See also Samuel Moyn, “From Antiwar Politics to Antitorture Politics,” Columbia University Working Paper, November 2011, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1966231. A variation of this view insists that even if there were older forms of international law, they are now “quaint” and impose newly impossible constraints on American statesmen and soldiers. See George Bush, “Memorandum for the Vice President,” in Karen J. Greenberg & Joshua L. Dratel, eds., The Torture Papers: The Road to Abu Ghraib (New York: Cambridge University Press, 2006), 134.
6 Making better sense of American history: For a provocative recent example of the kind of history that goes beyond the mythmaking, see William Ranney Levi, “Interrogation’s Law,” Yale Law Journal 118 (2009): 1434, 1462–83.
6 Carl Schmitt . . . thoroughly disingenuous: Carl Schmitt, The Nomos of the Earth in the International Law of Jus Publicum Europaeum (New York: Telos, 2006); Jan-Werner Muller, A Dangerous Mind (New Haven, CT: Yale University Press, 2003), 26.
6 to advance the authority of the world’s: See, e.g., Harold Pinter’s 2005 Nobel Prize acceptance speech, available at http://nobelprize.org/nobel_prizes/literature/laureates/2005/pinter-lecture-e.html. See also Chris Jochnick & Roger Normand, “The Legitimation of Violence: Critical History of the Laws of War,” Harvard International Law Journal 35 (1994): 49.
6 Hawks in the United States and Israel: Douglas J. Feith, “Law in the Service of Terror—The Strange Case of the Additional Protocol,” The National Interest 1 (Fall 1985): 36–47.
7 Hypocrisy . . . the tribute vice: Michael Walzer, Just and Unjust Wars (New York: Basic Books, 1977), xxi.
7 the conviction that their cause is right: I will take up this problem in more detail in chapter 1; see also James Turner Johnson, Ideology, Reason, and the Limitation of War: Religious and Secular Concepts, 1200–1740 (Princeton, NJ: Princeton University Press, 1975).
8 almost half the defense spending: Phillip Bobbitt, Terror and Consent: The Wars for the Twenty-first Century (New York: Alfred A. Knopf, 2008), 135; Stephen L. Carter, The Violence of Peace: America’s Wars in the Age of Obama (New York: Beast Books, 2011), ix.
Part I You Have Brought Me into Hell!
11 Epigraph: Benjamin Franklin to Joseph Priestley, PBF, 37: 445.
Chapter 1. The Rights of Humanity
13 The authorized maxims: Alexander Hamilton to Col. John Laurens, October 11, 1780, in PAH, 2: 460, 467–68.
13 went once again into the woods: For a longer account of the episode, see Fred Anderson, Crucible of War: The Seven Years War and the Fate of Empire in British North America, 1754–1766 (New York: Alfred A. Knopf, 2
000), 50–59.
13 In his official report: GW to Robert Dinwiddie, May 29, 1754, in PGW, Colonial Series, 1: 107, 110–11.
13 According to the French: GW to Robert Dinwiddie, May 29, 1754, in ibid., 1: 116–17; Editorial Note, in PGW, Diaries, 1: 162–73.
14 “You are not yet dead”: Richard White, The Middle Ground: Indians, Empires, and Republics in the Great Lakes Region, 1650–1815 (New York: Cambridge University Press, 1991), 240–41.
14 Fort Necessity: Account by George Washington and James Mackay of the Capitulation of Fort Necessity, July 19, 1754, PGW, Colonial Series, 1: 159ff.
14 an “assassination”: Articles of Capitulation, July 3, 1754, in ibid., 1: 165–68.
14 He would blame: GW to unknown, 1757, in ibid., 1: 168–72.
14 Washington’s diary . . . published: Mémoire Contenant le Précis des Faits avec Leurs Pieces Justificatives, Pour Servir de Réponse aux Observations Envoyés par les Ministres d’Angleterre, dans les Cours de l’Europe (Paris: L’Imprimerie Royale, 1756). The French version of the diary circulated widely enough that Jefferson owned a copy in his library—see Sowerby, Catalogue of the Library of Thomas Jefferson, vol. 2, pp. 67, 86 (LC, 1952).
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