Wheaton College, 265
Whig Party, 102, 142, 147
White, Andrew, 350–52
White House, 49, 100, 101, 180–81, 213, 368, 370
British burning of, 50–51
pardon-seekers in, 317
post-assassination disarray in, 290
Whiting, William, 205
Whitman, James Q., 231n
Whitman, Walt, 259
Wild West exhibitions, 335
Wilkes, Charles, 164–69
Willard, Emma, 124
Williams, George Henry, 334
Williams, Henry, 221
Williams, James, 257
Williams, Roger, 91
Williamsburg, Battle of, 193
Williamsburg, Va., 34, 37
Williamson, David, 92
Wilson, Charles, 166
Wilson, Henry, 227, 307
Wilson, James, 55
Winder, John, 300, 308
Winder, Levin, 74
Winder, Richard B., 308
Winder, William Henry, 82
Winthrop, William, 126, 265, 267
Wirz, Henry, 267, 287
trial and execution of, 298–302, 303, 334
Wisconsin, 142
Wool, John E., 125
Woolsey, Theodore Dwight, 192, 355, 358, 362
Worcester, Noah, 111
World War I:
poison gas used in, 3
Western Front in, 363
World War II, 3, 112, 267, 346–47, 372
Pacific theater of, 363
trials of Nazi leaders after, 3
U.S. use of atomic bombs in, 6
Wounded Knee, Battle of, 337
Wowinape (Dakota), 333
Wylie, Andrew, 294
Wyoming Valley, 91, 107
Yale University, 162, 265, 355, 362
yellow fever, 295
Yerger, Edward, 316
Yerger case, 316
Yoo, John, 112n
York River, 42
Yorktown, Battle of (American Revolution), 72, 208, 286
Yorktown, Battle of (Civil War), 208, 237
Yosemite National Park, 197–98
PHOTOFGRAPH BY CHRISTOPHER CAPOZZIELLO
JOHN FABIAN WITT is the Allen H. Duffy Class of 1960 Professor of Law at Yale Law School, a professor in the Yale History Department, and a Guggenheim Foundation fellow. His work has appeared in the New York Times, Slate, the Harvard Law Review, and the Yale Law Journal, among other publications. Witt is the author of two previous books: Patriots and Cosmopolitans: Hidden Histories of American Law (Harvard University Press, 2007) and The Accidental Republic: Crippled Workingmen, Destitute Widows, and the Remaking of American Law (Harvard University Press, 2004), which was awarded book prizes by the Harvard Press Board of Syndics, the American Society for Legal History, and the Law and Society Association.
MEET THE AUTHORS, WATCH VIDEOS AND MORE AT
SimonandSchuster.com
• THE SOURCE FOR READING GROUPS •
JACKET DESIGN BY R.GILL
JACKET PHOTOGRAPH © PHOTODISC /GETTY IMAGES
COPYRIGHT © 2012 SIMON & SCHUSTER
We hope you enjoyed reading this Free Press eBook.
* * *
Sign up for our newsletter and receive special offers, access to bonus content, and info on the latest new releases and other great eBooks from Free Press and Simon & Schuster.
CLICK HERE TO SIGN UP
or visit us online to sign up at
eBookNews.SimonandSchuster.com
Free Press
A Division of Simon & Schuster, Inc.
1230 Avenue of the Americas
New York, NY 10020
www.SimonandSchuster.com
Copyright © 2012 by John Fabian Witt
All rights reserved, including the right to reproduce this book or portions thereof in any form whatsoever. For information address Free Press Subsidiary Rights Department, 1230 Avenue of the Americas, New York, NY 10020
First Free Press hardcover edition September 2012
FREE PRESS and colophon are trademarks of Simon & Schuster, Inc.
The Simon & Schuster Speakers Bureau can bring authors to your live event. For more information or to book an event contact the Simon & Schuster Speakers Bureau at 1-866-248-3049 or visit our website at www.simonspeakers.com.
Book design by Ellen R. Sasahara
Library of Congress Cataloging-in-Publication Data
Witt, John Fabian.
Lincoln’s code : the laws of war in American history / John Fabian Witt.
p. cm.
1. Military law—United States—History. 2. War—United States—History. 3. War and emergency legislation—United States—History. 4. United States—History—Civil War, 1861–1865. 5. Lincoln, Abraham, 1809–1865—Military leadership. 6. War (International law)—History. 7. Lieber, Francis, 1800–1872. I. Title.
KF7210.W58 2012
343.73'01—dc23 2012006187
ISBN 978-1-4165-6983-1
ISBN 978-1-4165-7012-7 (ebook)
1 In the early 1960s, President John F. Kennedy attributed to Dante a line that captured the gist of the same idea: “The hottest places in Hell,” Kennedy liked to say, “are reserved for those who in time of moral crisis preserve their neutrality.” See Arthur M. Schlesinger, Jr., A Thousand Days: John F. Kennedy in the White House (Boston: Houghton Mifflin, 1965), 105.
2 The next chapter discusses the clash between Euro-American rules of war and their Indian analogues in more detail.
3 Decades later, in 1821, American slaveholders at last extracted some compensation for slaves freed during the Revolution when the beleaguered Creek Indians, chased and slaughtered by Andrew Jackson and the frontier militia, ceded lands to the United States. For all practical purposes, the Creeks had no choice but to abandon their lands in the face of the onslaught of white settlers. The treaty was a fait accompli. But in the terms of the treaty, part of the land was nominally given to the United States as compensation for slaves the Creek allies of George III had captured and freed in the Revolution some forty years before—see Don E. Fehrenbacher and Ward M. McAfee, The Slaveholding Republic: An Account of the United States Government’s Relations to Slavery (New York: Oxford University Press, 2001), 92.
4 The convoluted provision of Article I of the Treaty of Ghent read as follows: “All territory, places, and possessions whatsoever taken by either party from the other during the war, or which may be taken after the signing of this Treaty, excepting only [certain] Islands hereinafter mentioned, shall be restored without delay and without causing any destruction or carrying away any of the Artillery or other public property originally captured in the said forts or places, and which shall remain therein upon the Exchange of the Ratifications of this Treaty, or any Slaves or other private property. . . .”
5 European states spent between $3 and $6 per capita each year on their armed forces. The United States spent less than $1 per capita, amounting to less than 1 percent of the nation’s annual economic production. See David M. Kennedy, “War and the American Character,” The Nation, May 3, 1975, p. 522.
6 Shortly after President George W. Bush’s June 2002 speech at West Point introduced the Bush Doctrine of preemptive self-defense, the Justice Department’s Office of Legal Counsel issued a secret memorandum (since made public) that relied on and updated the Caroline standard, making it (according to the memo’s authors Jay Bybee and John Yoo) “more nuanced than Secretary Webster’s nineteenth-century formula.”
7 Implausibility did not stop President Polk from trying to claim legitimacy as an occupying power. “By the laws of nations,” he told the Congress, “a conquered country is subject to be governed by the conqueror during his military possession” (James D. Richardson, ed., A Compilation of the Messages and Papers of the Presidents, 1789–1897 (Washington, DC: Government Printing Office, 1896–1899), 4: 494). But at no point in the war did American forces in Mexico exceed 30,000 soldiers in more than 1,000 squar
e miles of territory containing some 7 million inhabitants. The guerrilla activity that Scott and his fellow American officers sought to control was testament to the meagerness of U.S. authority and the limits of Mexican submission. Even if the United States were understood as an occupier in the hinterland of Mexico where the guerrilla parties operated, the laws of war had not theretofore treated inhabitants rising up against an occupier as criminals per se. Action against an occupier (even by noncombatants) was neither “unjust” nor “contrary to the laws of war.” The rising up was not a criminal act in itself. It was an act of patriotism. “Where is the man,” Vattel asked, who would “dare to censure it?” (Emmerich de Vattel, The Law of Nations, trans. Joseph Chitty [Philadelphia: T. & J. W. Johnson, 1867], §228, p. 400).
8 This was in the famous case of the Confederate sympathizer and Maryland militia leader John Merryman.
9 Clausewitz did feel that he needed to explain the relatively limited structure of eighteenth-century warfare in Europe before Napoleon. Wars “between civilized nations” in the eighteenth century, he conceded, seemed “far less cruel and destructive than wars between savages.” But the reason was not the existence of so-called rules for legitimate warfare. Rather, as Clausewitz said with the cultural chauvinism characteristic to his age, it was because European nations used their intelligence more effectively than the savage and barbarian peoples in the rest of the world. Civilized states simply adopted “more effective ways of using force than the crude expression of instinct.” In the same passage, Clausewitz also suggested that the explanation for limited wars in the eighteenth century lay in “the social conditions of the states themselves and in their relationships to one another.” The laws and customs of war of which he was so dismissive were doubtless a part of those social conditions and those relationships, but Clausewitz seems not to have understood the point.
10 Article 4 of the Third Geneva Convention of 1949 extends prisoner of war status to “members of the armed forces of a Party to the conflict,” as well as to members of militias or other volunteer groups so long as they can show that they operate under a responsible command; they have a “fixed distinctive sign recognizable at a distance”; they “carry[] arms openly”; and they “conduct[] their operations in accordance with the laws and customs of war.
11 There is considerable debate over the precise timing of Lincoln’s decision. David Donald, one of the giants of Lincoln scholarship and the history of the Civil War, believed that Lincoln made his decision in June, or even May, well before the Harrison’s Landing episode—Donald, Lincoln, 363–64. In my view, the more likely timing is that proposed by Eric Foner, Allen Guelzo, and others, who date the decision to shortly after the July 8 Harrison’s Landing meeting with McClellan—Eric Foner, The Fiery Trial, 217, and Allen Guelzo, Lincoln’s Emancipation Proclamation, 141–46. There is evidence on all sides, but the earlier dating rests in significant part on stories told by interested witnesses long after the fact. Most persuasive to me is the fact that on July 1, 1862, Lincoln showed his friend Orville Browning a memorandum on his thinking about the slavery question that contained no hint of the dramatic policy Lincoln would unveil later that same month—Pease & Randall, eds., Diary of Orville Hickman Browning, vol. 1, p. 555.
12 On the law of battles, see James Q. Whitman’s brilliant new book, The Verdict of Battle: The Law of Victory and the Making of Modern War (Cambridge, MA: Harvard University Press, 2012).
13 General Orders No. 100 bore the date April 24, but that seems to be the date on which Stanton and Lincoln approved it; few people inside or outside the Union Army seem to have seen the final version until the second and third week of May.
14 The numbers are very difficult to arrive at, which is part of why no one to my knowledge has heretofore compiled an estimate of the number of persons accused of violations of the laws of war in military commissions. I arrived at this estimate in two different ways. First, a research assistant named Gideon Hart and I counted military commissions charging law of war violations in the printed General Orders volumes that are scattered in libraries and archives around the country. We were unable to locate General Orders volumes for every Union military department, but we counted 712 military commissions charging law of war violations. (The full results from Hart’s massive efforts, along with full documentation, can be found in his article in vol. 203 of the Military Law Review, published in the spring of 2010.) I did an independent count using the database of court-martial and military commission records compiled by Tom Lowry and the Index Project from the files contained in the National Archives in Washington. Lowry’s files indicate 875 military commissions charging law of war violations. I subsequently double-checked the Lowry data by examining a subset of the files he indexed. My estimate of the total number of military commissions slightly reduces Mark Neely’s standard estimate of 4,271 because Hart and I found that Neely’s count included some number of trials that were properly categorized as courts-martial. Lowry counts 5,562 military commissions, including commissions that took place after April 1865. See Mark E. Neely, Jr., The Fate of Liberty: Abraham Lincoln and Civil Liberties (New York: Oxford University Press, 1989), 168; Thomas P. Lowry, Merciful Lincoln: The President and Military Justice (Charleston, SC: Thomas P. Lowry, 2009), xi.
15 Lieber’s draft had instructed that anyone in a place under martial law who “gives information to the enemy,” or otherwise assisted the enemy, was punishable by execution; so, too, were “armed prowlers” or “persons of the enemy territory who steal within the lines of the hostile army.” Burnside’s order simplified and combined Lieber’s terms. See [Francis Lieber], A Code for the Government of Armies in the Field as Authorized by the Laws and Usages of War on Land, unpublished ms., Huntington Library, San Marino, California.
16 Death rates overall were significantly higher in southern camps (15.5%) than in northern ones (12.1%). One problem with comparative death rates is that they reflect in part the condition of the men who entered the prison. James McPherson has usefully pointed out that whereas Union soldiers were 68 percent more likely to die in Confederate camps than they were to die of disease while with their own army in the field, soldiers from the South were 29 percent less likely to die in Union prisons than of disease while serving in their own army—James M. McPherson, Ordeal by Fire: The Civil War and Reconstruction (New York: McGraw-Hill, 1982), 451 & 451n.
17 In 1871, Milligan won a civil case for damages against Major General Alvin P. Hovey for arresting and holding him unlawfully. An unsympathetic jury awarded Milligan only nominal damages, but the fact that he won even a nominal victory suggested that Speed and Butler might not have been able to sustain Milligan’s conviction even on the narrow argument. Future president Benjamin Harrison represented Milligan in his civil case. See Milligan v. Hovey, 17 F. Cas. 380 (C.C. D. Ind. 1871).
18 A student of mine, Maeve Herbert Glass, makes this same point in a brilliant article on the Sioux military commissions of 1862: Maeve Herbert, “Explaining the Sioux Military Commission of 1862,” Columbia Human Rights Law Review 40 (2009): 743.
19 Sibley had both initiated the charges against Wowinape and reviewed them. Article 65 of the Articles of War prohibited officers from performing both these roles in courts-martial, and while the tribunal in question was technically not a court-martial but a military commission, Pope worried that the commissions were properly governed by the same rules. Judge Advocate General Holt agreed.
20 Judge Advocate General Lieber later observed that the failure to punish Chivington stemmed in part from the fact that Chivington had already been mustered out of the Army by the time the court of inquiry concluded its business. See G. Norman Lieber to the Secretary of War, April 15, 1892, Letters Sent (“Record Books”), 1889–1895, Records of the Office of the Judge Advocate General (Army), 1792–2010, record group 153, National Archives and Records Administration.
21 Crozier also opposed efforts to limit the power of gunpowder in rifles. In addition, he cast votes against a ba
n on the use of mining shells in field artillery; a prohibition on new explosives for the bursting charge of projectiles; and a ban on the improvement of field guns. See James Brown Scott, ed., Instructions to the American Delegates to the Hague Peace Conferences and Their Official Reports (New York: Oxford University Press, 1916), 29.
22 Some otherwise excellent histories of the Glenn prosecution have missed the critical qualification in Davis’s review of the Glenn conviction because they have focused on Davis’s argument that the justification of necessity would lead quickly to a slippery slope: “[W]here is the line to be drawn?” Davis asked. “If the ‘water cure’ is ineffective, what shall be the next step?” Davis never tried to square his observations about the absence of stopping points with his case-by-case approach to deciding whether torture was warranted.
Lincoln's Code Page 74