“Common Justice and Plain Expediency”: The Lieber Code’s Vision of Just Warfare Against Civilians D.H. Dilbeck The Hard Hand of War: 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 – Francis Lieber – 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 Law of War (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 wars 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 Rebellion: 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 guerrilla warfare, prisoner exchanges, and the parole 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 Henry Halleck and Edwin Stanton, 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 martial law 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.