“Common Justice and Plain Expediency”: The Lieber Code’s Vision of Just Warfare Against Civilians

D.H. Dilbeck

The Hard Hand of : Irregulars and Civilians in the Civil War The Filson Historical Society October 24, 2014

Is it possible to wage a just war that directly targets a civilian population? Do warring nations have a moral obligation to contain to the battlefield all the horrors and hardships of warfare? Or, can a nation justly, directly unleash the terrors of the hard hand of war against non- combatants? For that matter, what exactly would a just war against civilians actually look like in practice?

These moral questions demanded attention from Union political and military leaders – whose armies, after all, often found themselves in close contact with southern civilians.

Historians have written a lot on this topic; it is undoubtedly a topic that we could consider from numerous angles. But I want to focus on what one man – – had to say about all this.1 Lieber was the principal author of the “Instructions for the Government of Armies of the

United States in the Field,” a distillation of the laws of war issued to Union forces in the spring

1 The standard biography of Francis Lieber remains, Frank Freidel, Francis Lieber, Nineteenth- Century Liberal (Baton Rouge: Louisiana State University Press, 1947). Other major works on Lieber and General Orders No. 100 include, John Fabian Witt, Lincoln’s Code: The Laws of War in American History (New York: Free Press, 2012); Matthew J. Mancini, “Francis Lieber, Slavery, and the ‘Genesis’ of the Laws of War,” Journal of Southern History 77 (2011): 325- 348; Charles R. Mack and Henry H. Lesesne, eds., Francis Lieber and the Culture of the Mind (Columbia: University of South Carolina, 2005); Richard Shelly Hartigan, Lieber's Code and the (Chicago: Precedent, 1983); James Childress, “Francis Lieber’s Interpretation of the Laws of War: General Orders No. 100 in the Context of His Life and Thought,” American Journal of Jurisprudence 21 (1976): 34-70; R.R. Baxter, “The First Modern Codification of the Law of War: Francis Lieber and General Order No. 100,” International Review of the Red Cross 25 (April 1963): 171-189. of 1863 as General Orders No. 100.2 The question I want to answer today is simply: What did

Lieber’s code, as it became known, say about what constituted just warfare against civilians.

I won’t suggest that all Union soldiers at all times strictly followed the rules laid down in the Lieber code. And yet, this code was the most thorough, authorized blueprint to just-warfare handed down by Union officials; in it, Lieber forcefully articulated a few widely shared ideas about how a war that deliberately targeted civilians could still be a just war. Lieber’s code, in short, among other things, offered an influential and revealing set of guidelines to navigating one of the more perplexing moral quandaries raised by the Civil War: the just treatment of southern civilians.

In a moment, I’ll discuss specifically, at length, the code’s particular articles on the treatment of civilians. But first, let me make a general introductory statement – argument – about the Lieber code’s “vision of just warfare against civilians,” as I’ve put it in my subtitle. I do think the code’s articles conformed to a particular vision of just warfare against civilians. In general terms, byway of introduction, that vision was this: To quote the code, “The more vigorously are pursued, the better it is for humanity.” What Lieber said here, in effect, by appealing to a

“vigorous” war, was that the most humane military efforts deployed all possible means to achieve victory as swiftly as possible – albeit within certain inviolable restraints. Nothing about a

“vigorous war” of this sort, in Lieber’s mind, demanded that Union armies leave Confederate civilians utterly undisturbed. However, the code sought also to temper violence towards civilians in certain important ways.

2 An electronic copy of Lieber’s code is available online via The Avalon Project of Yale Law School: http://avalon.law.yale.edu/19th_century/lieber.asp. It also appears in U.S. War Department, The War of the : A Compilation of the Official Records of the Union and Confederate Armies, 127 vols., index and atlas (Washington, D.C.: GPO, 1880-1901), ser. 3, vol. 3, 148-164. The citations from the code that follow are drawn from the Official Records and will for clarity’s sake reference only the article from which a quote is taken. Before I say more on the code’s “vision of just warfare against civilians,” let me say a quick word on who Francis Lieber was and why he came to draft the code that bears his name.

Lieber was a German-American jurist, born in Berlin in 1798. From his earliest childhood days, war captivated young Lieber. It shaped his formative experiences as a child and eventually engrossed his intellectual interests. After a stint as a soldier, Lieber settled on the life of a scholar. Lieber lived briefly in London before moving to America. He ran a gymnasium in

Boston, co-published the wildly successful Encyclopaedia Americana, and, after failing to receive a much-desire appointment at Harvard, eventually moved to Columbia, South Carolina to teach history and political economy at South Carolina College. He remained in South Carolina for the next twenty years, but in the late 1850s, Lieber and his family departed for New York

City, where he eventually took up a new teaching position at Columbia College. As war loomed then erupted, Lieber remained unshakably loyal to the Union, even though one of his three sons would fight and die for the Confederacy.3

Not long after the war began, Lieber worried that Federals and Confederates suffered from a terrible “confusion of ideas” about the laws of war – a confusion that dangerously corrupted how they prosecuted the war.4 He lamented in particular prevailing ideas and actions concerning , prisoner exchanges, and the system. Lieber pestered members the Lincoln administration and the Union military leadership to see to it that some sort of user-friend code of conduct – a guide to the laws of war – was produced and distributed to

Union forces. Finally, with the blessing of and , Lieber got his wish. Not only that, Lieber was more or less completely entrusted with writing the first draft of

3 Lieber’s life up to the Civil War is well covered in Freidel, Francis Lieber, Nineteenth-Century Liberal, 1-300; Witt, Lincoln’s Code, chapter six. 4 Francis Lieber to Charles Sumner, May 19, 1863, The Papers of Francis Lieber, Box 43, The Huntington Library, San Marino, California the code he envisioned. Lieber embarked on this work in the wake of the Union’s demoralizing defeat at Fredericksburg in late 1862. After a bit of tinkering by a committee, Lieber’s code was issued in April 1863.

The 157 articles of the code offered a succinct, useable, quite thorough guide to the “laws and usages of war” – a guide, to put it another way, to upholding morality in warfare. After all, as the code proclaimed in one early article, “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.”5

The code’s articles explained what exactly were the moral responsibilities incumbent on moral beings. In doing so, the content of these articles ranged widely – from to retaliation to prisoners of war to private property to spies to flags of truce to irregular warfare to armistice and capitulation, among many others.

But what did the Lieber code say about the treatment of enemy non-combatants? To understand this dimension of the code, it is necessary first to return again to one of the code’s most revealing and important articles: “The more vigorously wars are pursued, the better it is for humanity. Sharp wars are brief.”6 This idea profoundly shaped nearly everything Lieber wrote – or the code proclaimed – about just warfare. “The more vigorously wars are pursued, the better it is for humanity. Sharp wars are brief.” What Lieber said, in effect, was that the surest way to limit the total suffering and destruction occasioned by a war is to end the war as quickly as possible. And the surest way to end war swiftly was to wage it “vigorously.” As Lieber explained on one occasion, when it came to war, “the shorter it is the better; and the intenser it is carried

5 “Instructions for the Government of Armies of the United States in the Field,” article 15. 6 “Instructions for the Government of Armies of the United States in the Field,” article 29. on, the shorter it will be.” Lieber’s code was meant, in part, to explain just what a “vigorously waged war” or an “intenser” war looked like in its prosecution.7

Let’s be clear: Lieber, it seems, did believe that certain actions were always immoral – ought to always be forbidden – in war. The moral demands of a “vigorously waged war” didn’t justify everything. But Lieber and his code were caught in a grim tension on this point: the code tried to reconcile a commitment to “vigorously waged wars” with a commitment to certain inviolable restraints in warfare. One article of the code proclaimed, “to save the country is paramount to all other considerations.”8 But how exactly, really, does that idea – “to save the country is paramount to all other considerations” – fit with another idea from the code I’ve already quoted, “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.” Which is the greater good: to save the country or to abide by one’s moral obligations? This tension runs throughout Lieber’s code, and is particularly evident in its articles on the treatment of civilians.

Now, let me turn to these particular articles. Early on, the code proclaimed, “the unarmed citizen is to be spared in person, property, and honor as much as the exigencies of war will admit.”9 A justly waged war, in short, endeavored, as best as possible, to spare civilians from the hardships wars unleashed, even as it recognized that civilians would never be spared completely.

A just war was not an unashamedly “total” war that indiscriminately, zealously targeted civilians without restraint or decency. The whole purpose of Lieber’s code, in fact, was to prevent exactly this sort of utter disregard of the moral obligations incumbent upon warring armies.

7 Francis Lieber, “Twenty-Seven Definitions and Elementary Positions Concerning the Law and Usages of War,” The Papers of Francis Lieber, Box 2, Folder 15, Milton S. Eisenhower Library, The Johns Hopkins University, Baltimore, Maryland. 8 “Instructions for the Government of Armies of the United States in the Field,” article 5. 9 “Instructions for the Government of Armies of the United States in the Field,” article 22. Interestingly, embedded early in the code is a historical claim about the nature of modern warfare. In Lieber’s retelling, over the past century or two, warring nations had increasingly recognized the distinction between combatants and non-combatants. The “modern” era of warfare he lived through did not witness a turn toward “total war” that obliterated the distinctions between soldiers and civilians; instead, it witnessed a newfound commitment to treating civilians and soldiers differently. No longer were civilians arbitrarily “murdered, enslaved, or carried off to distant parts.” Lieber welcomed this historical development – and he sought to see it continued in his code.10

As such, Lieber’s code explicitly listed certain actions that Federal soldiers should never commit against enemy civilians. These included, “wanton violence … all destruction of property not commanded by the authorized officer, all robbery, all pillage or sacking, even after taking a place by main force, all , wounding, maiming, or killing of such inhabitants.” Nothing in this article forbade the destruction of civilian property, only a destruction of property “not commanded by the authorized officer.” However, the article did contain a more sweeping condemnation of physical violence against civilians themselves. It expressly prohibited all “rape, wounding, maiming, or killing.” Lieber did not dwell in great detail on the proper punishment for soldiers who violated this article. However, he did suggest that immediate execution might be permissible. “A soldier, officer or private, in the act of committing such violence, and disobeying a superior ordering him to abstain from it, may be lawfully killed on the spot by such superior.”11

10 “Instructions for the Government of Armies of the United States in the Field,” article 23. 11 “Instructions for the Government of Armies of the United States in the Field,” article 44. Still, Lieber’s code also explicitly sanctioned a spirit of “directed severity” when it came to the treatment of civilians.12 Disloyal civilians could – in fact, should – fare far worse at the hands of Union armies than loyal southern civilians. The “burden of war” should fall harder upon the heads of disloyal civilians – though Lieber left somewhat vague as to what exactly he had in mind when using this phrase, “burden of war.” Still, the code also declared that the “manifestly loyal citizens” ought to be protected “against the hardships of the war as much as the common misfortune of all war admits.” To put it simply, Union armies must not wage a reckless war against all southern civilians. Not all southerners deserved the same fate. And, for that matter, there were also limits to what Federals could legitimately do to disloyal civilians.13

Lieber’s attempt to shield at least some civilians always came with an important disclaimer: “as much as the exigencies of war will admit.” Yes, Lieber said, soldiers should never resort to certain actions against civilians – wanton violence, pillage, rape, or maiming, for example. Yet Lieber also assumed “the overruling demands of a vigorous war” – military necessity, to put it another way – would sometimes compel armies to subject civilians to great hardship and suffering. For example, while the Union ought to “acknowledge and protect” private property, its armies could seize it “by way of military necessity, for the support or other benefit of the army.”14

Lieber’s justification of subjecting civilians to war’s hardships rested upon his larger vision of a moral war. The harsh treatment of civilians sometimes necessary in a vigorously prosecuted war must work only toward ending war as quickly as possible, which, after all, was the most moral and humane thing a belligerent could do. To induce civilian suffering in war was

12 A military strategy well explained in Mark Grimsley, The Hard Hand of War: Union Military Policy Toward Southern Civilians, 1861-1865 (New York: Cambridge, 1995). 13 “Instructions for the Government of Armies of the United States in the Field,” article 156. 14 “Instructions for the Government of Armies of the United States in the Field,” article 37. never desirable, Lieber believed, but it might be a harrowing path to the most moral of wars: stern and short.

This, in the end, is the heart of the Lieber code’s moral vision of just warfare against civilians: “the more vigorously wars are pursued, the better it is for humanity,” albeit only if warring parties recognize the necessary limits even in vigorously waged wars. Still, the code also proclaimed, “to save the country is paramount to all other considerations,” which in the hands of a zealous military commander might well prove to be a blank check justifying all manner of atrocities. It’s for this reason that Mark Grimsley, for one, concluded the code was “ambiguous

… The line between wanton destruction and vigorous prosecution was hazy at best.”15

Perhaps that line was at times hazy in the code. But, at its heart, Lieber’s code was not really all that ambiguous. That is to say, it clearly set forth a comprehensive moral vision of what a justly waged war looked like – against soldiers and civilians alike. The code’s moral vision was often a grim one; it did potentially justify terrifying – though never limitless – violence towards non-combatants. And yet, still, the code’s articles conform to Lieber’s fierce conviction about the true nature of the most moral – even humane – wars. To quote Lieber again, “sharp wars are brief,” and, we can imagine him adding, “brief wars are moral wars.”

This is the essential and sobering point about Lieber’s code: in the moral vision of warfare it embodied, just wars were by necessity wars in which armies did nearly whatever was needed to end war as quickly as possible. It was precisely for this reason that Lieber could proclaim not long after the war began, “The gigantic wars of modern times are less destructive

15 Mark Grimsley, The Hard Hand of War: Union Military Policy Toward Southern Civilians, 1861-1865 (New York: Cambridge, 1995), 151. than were the protracted former ones.”16 Civil War Americans such as Lieber lived at the cusp of a modern world in which war endured. He responded by embracing a particular vision of just warfare that he believed would limit the total suffering and destruction the Union’s war unleashed, especially against civilians. Lieber hoped that Federal armies abiding by his code would best fulfill their obligations to God and humanity as moral beings engaged in war.

16 Francis Lieber, “Twenty-Seven Definitions and Elementary Positions Concerning the Law and Usages of War,” The Papers of Francis Lieber, Box 2, Folder 15, Milton S. Eisenhower Library, The Johns Hopkins University, Baltimore, Maryland.