Lincoln's Code
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237 “not admit of the use of poison”: Instructions, articles 16, 70.
237 “military necessity does not include”: Ibid., art. 16.
237 buried explosive shells: Henry Halleck to FL, August 26, 1863, box 9, FLP HU.
237 booby-trapped bodies: Remarks on ‘Incendiary Balls’ or ‘Rifle Bombs’ Used by the Confederate Army—Also a Torpedo Device, unpublished MS, September 1 & 14, 1863, box 20, FLP HU.
237 “the soldier within me” . . . “Quixotic tournaments”: FL to Henry Halleck, August 24, 1863, box 27, FLP HL.
237 “Men who take up arms”: Instructions, art. 15.
237 Halleck and Stanton handled that: Halleck sent the telegraph asking Lieber to come to Washington. We know that Stanton was involved from the start because Lieber asked Halleck whether his travel plans would suit Stanton. See FL to Henry Halleck, December 9, 1862, box 27, FLP HL.
238 “approved by the President”: OR, series 3, 3: 148.
238 “liberty to use violence against”: Orville H. Browning to Abraham Lincoln, Sep. 31, 1861, ALP LC.
238 “any available means” . . . “rose-water?”: AL to Cuthbert Bullitt, July 28, 1862, in Basler, 5: 346.
238 “he was pretty well cured”: Salmon P. Chase, Inside Lincoln’s Cabinet: The Civil War Diaries of Salmon P. Chase (New York: Longmans, Green, 1954), 106.
238 “mistaken deference”: Horace Greeley to Abraham Lincoln, August 1, 1862, ALP LC.
238 “If I could save the Union”: AL to Horace Greeley, in Basler, 5: 388–89.
239 “come to the conclusion”: Gideon Welles, Diary of Gideon Welles, Secretary of the Navy Under Lincoln and Johnson (Boston: Houghton Mifflin, 1911), 1: 70.
239 “Civilized belligerents” . . . “saving the Union”: AL to James C. Conkling, August 26, 1863, Basler, 6: 406, 408.
239 separated those who engaged in battles: Carol Chomsky, “The United States—Dakota War Trials: A Study in Military Injustice,” Stanford Law Review 43 (1990): 13; Maeve Herbert Glass, “Explaining the Sioux Military Commission of 1862,” Columbia Human Rights Law Review 40 (2009): 743.
239 “could not afford”: Don E. Fehrenbacher & Virginia Fehrenbacher, eds., Recollected Words of Abraham Lincoln (Stanford, CA: Stanford University Press, 1996), 372.
239 “where necessary for military”: James Randall, Constitutional Problems Under Lincoln (Urbana: University of Illinois Press, 1951), 367.
240 “Murders for old grudges”: AL to Charles Drake, Oct. 5, 1863, Basler, 6: 500.
240 “The colored population”: James M. McPherson, The Negro’s Civil War: How American Negroes Felt and Acted During the War for the Union (New York: Pantheon Books, 1965), 169.
240 “important to the enemy”: AL to David Hunter, April 1, 1863, Basler, 6: 158.
241 Halleck asked Lieber to add: Henry Halleck to FL, February 28, 1863, box 9, FLP HL; FL to Henry Halleck, March 4, 1863 and March 23, 1863, box 27, FLP HL; “For General Halleck: Insurrection. Rebellion. Civil War. Foreign Invasion of the United States” (1863), unpublished MS, box 18, FLP HL; Instructions for the Government of Armies of the United States in the Field, Section X. Insurrection.—Rebellion.—Civil War.—Foreign Invasion of the United States, unpublished MS, register no. 240460, HL.
241 Lieber sent out a printed first draft: E.g., FL to Henry Halleck, February 20, 1863, box 27, FLP HL.
241 The passages he asked about: FL to Charles Sumner, February 24, 1863, box 43, FLP HL.
241 of which he was most proud: FL to Charles Sumner, May 19, 1863, box 43, FLP HL.
241 making important additions: FL to HWH, June 18, 1863, box 27 (observing that Halleck drafted the last clause of s. 43 relating to belligerent liens and claims of service).
241 omitting clauses he thought: Code for the Government of Armies in the Field (register no. 243077, HL), §23, at p. 9, and §33, at 11.
241 “better than the Emancipation Proclamation”: Hamilton Fish to FL, March 10, 1863, box 7, FLP HL.
241 “vast importance”: Napoleon Bonaparte Buford to Francis Lieber, April 10, 1863, box 3, FLP HL.
242 the more general idea in the law of nations that slavery could exist: See James Oakes, Freedom National: The Destruction of Slavery in the United States (forthcoming). On Somerset’s Case, see George van Cleve, “Somerset’s Case and Its Antecedents in Imperial Perspective,” Law and History Review 24 (2006): 645.
244 had issued outlawry orders against the principal Union organizers: OR, series 1, 14: 599.
244 “African slaves” . . . “enemy of mankind”: OR, series 1, 15: 906–08.
245 issued early in the spring: OR, series 2, 5: 306–07 (paroles).
245 handed him a copy: OR, series 2, 5: 690.
245 “the boast of modern times”: Cong. Globe, 29th Cong., 2nd sess. (1846), p. 23.
245 “confused” and “undiscriminating”: OR, series 2, 6: 41–47.
245 “a license for a man”: OR, series 2, 5: 744.
245 “Christian warriors”: OR, series 4, 3: 1048.
245 “the most prominent of the matters”: OR, series 2, 6: 47.
245 “Discrimination among”: OR, series 2, 6: 18.
246 “The employment of a servile insurrection”: OR, series 2, 6: 44.
246 Boston Herald: “New Military Instructions,” Boston Herald, May 19, 1863, 4; see also “War Matters,” Boston Herald, July 30, 1863, 2.
246 Daily National Intelligencer: “The Retaliatory Code,” Daily National Intelligencer, June 5, 1863; see also “War Department has officially proclaimed the instructions,” Daily National Intelligencer, May 26, 1863.
246 New York Times: “Our Militia Forces,” New York Times, May 24, 1863. New York Herald: “News from Washington,” New York Herald, May 19, 1863, 7.
246 Charleston Mercury: “Instructions of the Yankee War Department of the Government of Armies in the Field,” Charleston Mercury, May 30, 1863, 1. Daily Picayune: “The New Code of Instruction for the United States Army,” Daily Picayune, June 5, 1863, 2.
246 L’Union in New Orleans: “Instructions à l’Armée,” L’Union (New Orleans), June 4, 1863, 1. Louisville Daily Journal: “The Policy of the War; Instructions for the Government of Armies of the United States in the Field,” Louisville Daily Journal, May 23, 1863, 1.
246 Extensive treatments soon came out: “The New Code of Instruction for the United States Army,” Baltimore Sun, May 21, 1863, 4; “Regulations for the Army,” New Haven Daily Palladium, May 18, 1863; Boston Daily Advertiser, May 18, 1863; Daily Cleveland Herald, May 18, 1863; Milwaukee Daily Sentinel, May 19, 1863; Daily Evening Bulletin (San Francisco), June 13, 1863.
247 “The President, by approving”: “Retaliatory Code,” Daily National Intelligencer, June 5, 1863.
247 “a complete fallacy”: “Instructions for the Government of the Army,” New York Herald, May 20, 1863, 6.
247 “employment of colored troops”: OR, series 1, 14: 466.
247 joint resolution: OR, series 2, 5: 940–41.
248 the code was response enough: “Retaliatory Code,” Daily National Intelligencer, June 5, 1863.
248 “not one person in a hundred” . . . “impress the rebels”: “Protection for Our Black Troops,” Boston Daily Advertiser, June 11, 1863.
248 “full conversation”: Henry Halleck to FL, August 4, 1863, box 9, FLP HL.
248 in Stanton’s War Department: Basler, 6: 357 n. 1.
248 “class, color, or condition”: Ibid., 6: 357.
248 the Confederate government retreated: Ira Berlin et al., eds., Freedom: A Documentary History of Emancipation, 1861–1867—The Black Military Experience (New York: Cambridge University Press, 1982), 580.
248 “held like other captives”: Ibid.
248 “in suggesting and building up”: Ethan Allen Hitchcock to FL, October 22, 1863, box 11, FLP HL.
249 “that you may know”: OR, series 1, 32 (part 1): 601–02.
Chapter 9. Smashing Things to the Sea
250 “The law of war i
mposes”: Instructions, art. 30.
250 “War is simply power unrestrained”: OR, series 1, 32 (part 2): 280.
251 On August 9 alone: Stephen Davis, “ ‘Very Barbarous Mode of Carrying on War’: Sherman’s Artillery Bombardment of Atlanta, July 20–August 24, 1864,” Georgia Historical Quarterly 79, no. 1 (1995): 57, 68.
251 to single out particular homes: Davis, “ ‘Very Barbarous Mode,’ ” 68 (“we can pick almost any house in the town”).
251 concentrate their fire at night: Ibid., 68.
251 killed a father and his daughter: Marc Wortman, The Bonfire: The Siege and Burning of Atlanta (New York: Public Affairs, 2009), 294.
251 “destroy Atlanta”: Davis, “ ‘A Very Barbarous Mode,’ ” 68.
251 “make the inside”: W. T. Sherman, Memoirs of William Tecumseh Sherman (New York: Library of America, 1990) (1875), 575.
251 killed around 20 noncombatants: Wortman, Bonfire, 295; Stephen Davis, “How Many Civilians Died in Sherman’s Bombardment of Atlanta?” Atlanta History 45, no. 4 (2003): 4, 19.
251 “even if it result 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), 688.
251 “no consideration”: B. H. Liddell Hart, Sherman: Soldier, Realist, American (New York: Dodd, Mead & Co., 1929), 309.
251 “seeking the lives”: Simpson & Berlin, eds., Sherman’s Civil War, 686.
251 accused Hood of digging: Ibid., 705–06.
251 removed from the town by force: Ibid., 327.
251 “If the people raise a howl”: Simpson & Berlin, eds., Sherman’s Civil War, 697.
251 “in the name of God”: Sherman, Memoirs, 593.
251 “the woe, the horrors”: Ibid., 599.
252 “kindness” . . . “See the books”: Ibid., 594, 601.
252 “moral cloak”: Harry Stout, Upon the Altar of the Nation: A Moral History of the Civil War (New York: Penguin, 2007), 193. Otherwise sophisticated observers often assert (wrongly) that Sherman’s conduct in the war flatly violated the terms of Lieber’s instructions. See Matthew Waxman, “Siegecraft and Surrender: The Law and Strategy of Cities as Targets,” Virginia Journal of International Law 39 (1999): 353, 380; Thomas G. Robisch, “General William T. Sherman: Would the Georgia Campaigns of the First Commander of the Modern Era Comply with Current Law of War Standards?” Emory International Law Review 9 (1995): 459, 461. The more common form of historians’ skepticism comes in simply ignoring Lieber altogether. Neither Lieber nor Lincoln’s 1863 instructions are mentioned in James McPherson’s magisterial Battle Cry of Freedom (New York: Oxford University Press, 1988).
253 one of the great crusty characters: Ethan Allen Hitchcock, Fifty Years in Camp and Field, (New York: G. P. Putnam’s Sons, 1909), 60–69.
253 “a picture of cruelty”: William B. Skelton, An American Profession of Arms: The Army Officer Corps, 1784–1861 (New York: G. P. Putnam’s Sons, 1992), 315.
253 “as white men on this continent”: Hitchcock, Fifty Years in Camp and Field, 5.
253 he read the political tracts: Ibid., 121, 184–85, 207.
254 a philosophical tract of his own: Ethan Allen Hitchcock, The Doctrines of Spinoza and Swedenborg Identified, So Far as They Claim a Scientific Ground (Boston: Munroe & Francis, 1846).
254 inspected Union prisoner of war camps: Herman Hattaway & Eric B. Fair, “Ethan Allen Hitchcock,” American National Biography Online February 2000, http://www.anb.org/articles/04/04-00506.html.
254 Stanton appointed him: Hitchcock, Fifty Years in Camp and Field, 444–45.
254 Since July 1862: OR, series 2, 4: 266–67.
254 10,000 more prisoners: Charles W. Sanders, Jr., While in the Hands of the Enemy: Military Prisons of the Civil War (Baton Rouge: Louisiana State University Press, 2005), 149.
254 turned into breeding grounds: OR, series 2, 5: 38; Sanders, While in the Hands of the Enemy, 136–42.
254 never bothered to report: OR, series 2, 5: 33.
254 The parole of thousands: Matthew J. Mancini, “Francis Lieber, Slavery, and the ‘Genesis’ of the Laws of War,” Journal of Southern History 77, no. 2 (May 2011): 325, 339–40.
255 battlefield paroles were of no legal effect: OR, series 2, 5: 70 (Rosencrans); OR, series 2, 5: 191 (Rosencrans); OR, series 2, 5: 339–40.
255 “not a private act”: Instructions, art. 121.
255 James Seddon initially protested: OR, series 2, 6: 45–47.
255 captured Union soldiers by the thousands: OR, series 2, 6: 60, 63, 77; Isaac Avery, “List of Prisoners Captured at York, Penn., June 28, 1863,” [General Jubal Early’s command], Collection of James William Eldridge, 1797–1902, HL.
255 Stanton rushed out an order: General Orders No. 207, OR, series 2, 6: 78–79.
255 had not superseded the 1862 cartel: OR, series 2, 6: 199; OR, series 2, 6: 471–73.
256 Ould gleefully proposed: OR, series 2, 6: 180–81.
256 continued to treat them as fugitive: Ira Berlin et al., eds., Freedom: A Documentary History of Emancipation, 1861–1867—The Black Military Experience (New York: Cambridge University Press, 1982), 567–80 (cited hereafter as Berlin et al., eds., Black Military Experience).
256 two free black boys: OR, series 2, 5: 455, 484.
256 “red handed on the field”: OR, series 1, 22 (part 2): 965.
256 Newspapers listed: Dudley Taylor Cornish, The Sable Arm: Black Troops in the Union Army, 1861–1865 (Lawrence: University Press of Kansas, 1956), 178.
256 sold into slavery: OR, series 2, 5: 966–67.
256 recommended summary execution: Sanders, While in the Hands of the Enemy, 147.
256 “no quarter”: OR, series 2, 6: 22–23.
256 killed on the pretext: OR, series 2, 6: 257–59.
256 discouraged such practices: OR, series 2, 6: 115; OR, series I, 22 (part 2): 964–65; Berlin et al., eds., Black Military Experience, 578–79.
256 keeping the number of black prisoners: OR, series 2, 7: 105.
256 “the interest of the service”: OR, series 2, 6: 257–59.
257 Ferguson and his men: Thomas D. Mays, “The Battle of Saltville,” in John David Smith, ed., Blue: African-American Troops in the Civil War Era (Chapel Hill: University of North Carolina Press, 2002), 200–26.
257 “no orders, threats”: Cornish, Sable Arm, 177.
257 “murdered on the spot”: OR, series 1, 34 (part 1): 746; Mike Fisher, “The First Kansas Colored—Massacre at Poison Springs,” Kansas History (1979): 121–28.
257 The most notorious race massacre: John Cimprich & Robert C. Mainfort, Jr., “The Fort Pillow Massacre: A Statistical Note,” Journal of American History 76, no. 3 (December 1989): 830–36; Noah Andre Trudeau, “ ‘Kill the Last Damn One of Them’: The Fort Pillow Massacre,” in Robert Cowley, ed., With My Face to the Enemy: Perspectives on the Civil War (New York: G. P. Putnam’s Sons, 2001); Gregory J. Macaluso, The Fort Pillow Massacre: The Reason Why (New York: Vantage Press, 1989), 49.
257 “the negroes were shown”: Cimprich & Mainfort, “Fort Pillow Massacre,” 836.
257 Two thirds of the 300 black: Ibid., 835–36.
257 Forrest would later deny: Ronald K. Hutch, “Fort Pillow Massacre: The Aftermath of Paducah,” Journal of the Illinois State Historical Society 66, no. 1 (1973): 60, 69.
258 most historians now agree: See John Cimprich, Fort Pillow, a Civil War Massacre, and Public Memory (Baton Rouge: Louisiana State University Press, 2005); John Cimprich, “The Fort Pillow Massacre,” in Smith, ed., Black Soldiers in Blue, 15–68.
258 as he would have treated slaves: For a similar interpretation, see Macaluso, Fort Pillow Massacre, 49–51.
258–59 “seldom imprisoned” . . . “Richmond and Charleston”: Robert Scott Davis, “ ‘Near Andersonville’: An Historical Note on Civil War Legend and Reality,” Journal of African American History 92 (2007): 96, 101.
259 “ten or tw
elve thousand”: Sanders, While in the Hands of the Enemy, 156–57.
259 “rest mainly upon the heads”: Walt Whitman, “The Prisoners” (Letter to the Editor), New York Times, December 27, 1864.
259 was forbidden to withhold prisoner of war treatment: OR, series 2, 6: 18.
259 “protection to all persons”: OR, series 2, 6: 73.
259 “irrespective of their color”: OR, series 2, 5: 711–12; Cornish, Sable Arm, 163.
259 “bound to give the same”: OR, series 1, 24 (part 3): 425–26; see also 24 (part 3): 589.
259 “the policy, dignity, nor honor”: OR, series 2, 7: 688.
259 often to his own detriment: E.g., Hitchcock, Fifty Years in Camp and Field, 66–67, 432.
259–60 “extreme sufferings” . . . “warfare”: OR, series 2, 6: 594–600; see also Hitchcock’s follow-up to the Times, OR, series 2, 6: 615–17.
260 was merely a pretext for the real reason: For a recent example, see Sanders, While in the Hands of the Enemy, 2 and passim.
260 “a new army 40,000 strong”: OR, series 2, 6: 647.
260 “the United States was prepared”: Berlin et al., eds., Black Military Experience, 88–89.
260 “if the government employs”: Ethan Allen Hitchcock to FL, October 22, 1863, box 11, FLP HL.
260 Hitchcock offered his resignation: OR, series 2, 6: 639.
260–61 “held on to their slaves” . . . “here in bondage”: William Marvel, Andersonville: The Last Depot (Chapel Hill: University of North Carolina Press, 1994), 147–48.
261 Frederick Douglass had made clear: John David Smith, “Let Us All Be Grateful That We Have Colored Troops That Will Fight,” in Smith, ed., Black Soldiers in Blue, 47; Cornish, Sable Arm, 168; James M. McPherson, The Negro’s Civil War: How American Negroes Felt and Acted During the War for the Union (New York: Vintage Books, 1965), 173–75.
261 “it may as well disband”: Berlin et al., eds., Black Military Experience, 587.
261 Grant agreed to resume: James M. McPherson, Ordeal by Fire: The Civil War and Reconstruction (New York: McGraw-Hill, 1982), 456.
261 The Union offered precisely: E.g., OR, series 2, 6: 136; OR, series 2, 7: 687; OR, series 2, 8: 801.