War Is Hell, But Even Hell Has Rules: Introduction to the Lieber Code

Years after the Civil War, Maj. Gen. William T. Sherman famously declared that “War is hell.” Similarly, during the war, on the eve of his burning Atlanta, Sherman declared “War is cruelty, and you cannot refine it…^[1]

But was Sherman wrong? Must war always be unmitigated “hell,” or could it in fact be “refined,” with standards governing and perhaps civilizing its conduct? The Lincoln Administration thought the latter true. On April 24, 1863, Abraham Lincoln issued General Orders No. 100, entitled “Instructions for the Government of Armies of the United States in the Field.” That Order announced a set of rules that the United States Army promised to follow in waging the Civil War.

Known as “the Lieber Code” for its primary drafter, the Order represented a groundbreaking document. The Lieber Code is considered the model for modern international conventions regulating acceptable methods of warfare. Indeed, the Code’s “important guidance” still is praised in the U.S. Department of Defense Law of War Manual.^[2]

The Code was the brainchild of U.S. General-in-Chief, Henry “Old Brains” Halleck. Halleck himself was well-versed in the laws of war, having authored a comprehensive treatise on the subject.^[3] It was Halleck who decided that it would be useful to establish an overall set of rules to govern the army. The rules were to be consistent with international customs, in addition to the standard Articles of War. Halleck convened a five-member board “to propose amendments or changes in the Rules and Articles of War, and a code of regulations for the government of armies in the field, as authorized by the laws and usages of war.” The only non-military member of the board was Francis Lieber, a Prussian-born Napoleonic war veteran, Columbia law professor, and acknowledged expert on the international laws of war. Lieber, who served as Halleck’s unofficial advisor on legal issues arising from the conflict, was the primary drafter of the board’s resulting work product.^[4]

Lieber was an interesting choice to spearhead Halleck’s initiative to set forth the rules for subduing the South. Lieber had spent over twenty years teaching at South Carolina College. He also was an ex-slaveholder, having purchased multiple enslaved persons throughout his tenure with the College. Moreover, Lieber’s oldest son had stayed in South Carolina when Lieber relocated to New York in 1856. Oscar Lieber joined the Wade Hampton Legion at the outbreak of war and died during the June 1862 Battle of Williamsburg.^[5] Now the father would craft the legal foundation for the Union war effort.

Organized into ten sections consisting of 157 short – often just one or two sentences – “Articles,” Lieber’s Code offered concise answers to many of the issues confronting Union forces in the field.^[6] In doing so, the Code harmonized federal military policy, relieving Union commanders in the field from making ad hoc decisions while announcing what conduct was permitted and what deemed unlawful. And the Code had teeth; it provided that soldiers in the act of violating certain of its provisions could “be lawfully killed on the spot.”^[7]

Legal guidance certainly had become necessary, or at least highly desirable. The first two years of war had been witness to numerous situations in which army officers needed clear direction on what would be considered right and proper.

How should Southern civilians in occupied towns be governed, and when could they be punished for disloyal conduct, violent or otherwise? Should irregular Confederate forces (guerillas) be summarily executed if captured, or afforded POW status? What was the status of fugitive enslaved persons reaching Union lines (especially those fugitives from “loyal” citizens)?^[8] When could civilian property within the Confederacy be taken for the army’s use? How were POWs to be treated, and should they be taken into physical captivity at all, or simply paroled? And with the Confederate government threatening the summary execution of certain Union officers—including Maj. Gen. John Pope and Benjamin “Beast” Butler—whose policies were deemed contrary to the “laws and usages of war” (e.g., threatening civilians, arming blacks), what was to be the U.S. legal response? Specifically, was lethal retaliation ever justified upon otherwise innocent enemy in the hands of the U.S.?^[9]

Lieber’s Code addressed all of these issues, and many more. As will be seen in coming posts in this series on the Code, sometimes the Code was quite specific and definite in its mandates, while in other instances its guidance not only was vague but sometimes outright contradictory. A question is not only how the Code addressed the myriad legal issues raised by the Civil War, but whether the specific answer or general guidance provided made sense. Did the Lieber Code furnish a rational set of rules for the U.S. Army’s conduct of the war? Moreover, what was the goal of those rules? Did the rules seek—in Sherman’s language—to “refine,” or civilize, the making of war, or did they instead actually justify those who preferred “total” war?

In the coming weeks we will together explore various aspects of the Lieber Code, quoting its provisions, posing questions for debate, and considering the many issues raised by this inaugural effort to impose standards upon the hell that is war.

^[1] “William Tecumseh Sherman,” Wikipedia, https://en.wikipedia.org/wiki/William_Tecumseh_Sherman; Sherman, September 12, 1864 letter to James M. Calhoun, et al., Civil War Era NC, https://cwnc.omeka.chass.ncsu.edu/items/show/23.

^[2] Jenny Gesley, ‘The “Lieber Code” – the First Modern Codification of the Laws of War,’ Library of Congress Blog, April 24, 2018, https://blogs.loc.gov/law/2018/04/the-lieber-code-the-first-modern-codification-of-the-laws-of-war/; Law of War Manual, June 2015 (updated December 2016), at iii, https://tjaglcspublic.army.mil/dod-low-manual.

^[3] Henry W. Halleck, International law; Or, Rules Regulating the Intercourse of States in Peace and War (D. Van Nostrand, New York, 1861), https://archive.org/details/internationalla01hallgoog/page/n4/mode/2up.

^[4] The War of the Rebellion: A Compilation of The Official Records of The Union and Confederate Armies, Series III, Vol. 2 (U.S. Government Printing Office, Washington, D.C., 1880 – 1901), p. 951 (hereafter “OR”); John Fabian Witt, Lincoln’s Code: The Laws of War in American History (Free Press, New York, NY, 2012), pp. 2, 193, 230-231; Matthew J. Mancini, ‘Francis Lieber, Slavery, and the “Genesis” of the Laws of War,’ The Journal of Southern History, Vol. 77, No. 2 (May 2011), p. 325, https://www.jstor.org/stable/41306198?read-now=1&refreqid=excelsior%3Af984dfd9aafa0042ea3d37e73c25109a#page_scan_tab_contents; Sir Adam Roberts, “Foundational Myths In The Laws Of War: The 1863 Lieber Code, And The 1864 Geneva Convention,” Melbourne Journal of International Law (Vol. 20, 2019), pp. 13 – 14, https://law.unimelb.edu.au/__data/assets/pdf_file/0020/3144314/Roberts.pdf.

^[5] Witt, pp. 176, 179, 180, 193, 226 – 227.

^[6] OR, Series III, Vol. 3, pp. 148 – 164. General Orders No. 100 (Lieber Code; “Code”) is published here in the OR.

^[7] Code, Article 44 (emphasis supplied).

^[8] Lincoln’s Emancipation Proclamation did not definitively resolve this issue. That executive order only purported to free enslaved persons in geographic areas then still in rebellion and unoccupied by U.S. forces. “Emancipation Proclamation (1863),” National Archives Milestone Documents, https://www.archives.gov/milestone-documents/emancipation-proclamation. Moreover, the 1850 Fugitive Slave Act, mandating that all citizens cooperate in returning fugitives, remained in force until June 28, 1864. Sarah Kay Bierle, ‘June 28, 1864: “Hereby, Repealed,”’ Emerging Civil War (June 28, 2019), https://emergingcivilwar.com/2019/06/28/june-28-1864-hearby-repealed/. Even the Second Confiscation Act of 1862, which forbade the military from unilaterally returning escaped enslaved persons to their owners, allowed the return of enslaved persons whose owners established that they were “loyal” citizens. “The Second Confiscation Act,” Freedmen and Southern Society Project, Section 10, https://freedmen.umd.edu/conact2.htm.

^[9] OR, Series I, Vol. 14, Chap. 26, p. 599, Vol. 15, Chap. 27, pp. 905 – 908, Series II, Vol. 4, pp. 328 – 330, 830 – 831, 835 – 837, 906 – 908; Christopher G. Pena, General Butler, Beast or Patriot, New Orleans Occupation, May-December 1862(1^st Books, Bloomington, IN, 2003), pp. 86 – 87.