War Is Hell, But Even Hell Has Rules: Prisoners of War Per the Lieber Code

The post is part of a series.

One of the many subjects addressed by the Lieber Code[1] was the proper treatment of prisoners of war. This was among the most contentious issues arising during the Civil War. One author claims that “no controversy ever evoked such emotions as the mutual recriminations between Northern and Southern partisans over the treatment of prisoners of war…Throughout the war the complaints, charges and counter-charges, and the assertions of criminal intent fed the raging fires of propaganda.”[2]

Indeed, the only Confederate executed after the war was Henry Wirz, the commandant at the infamous Andersonville POW camp, who was accused of war crimes over the treatment of Union POWs.[3] Robert E. Lee was summoned before a Congressional committee that sought to uncover Lee’s knowledge of (and possible responsibility for) the suffering of U.S. POWs.[4] Meanwhile, horrendous conditions at U.S. POW camps, including Elmira, New York (referred to as “Hellmira”) and Point Lookout, Maryland raise the question of what safeguards, if any, the Lieber Code afforded helpless non-combatants.[5]

This post looks at what the Code had to say about this controversial POW issue.

Article 53. 

The enemy’s chaplains, officers of the medical staff, apothecaries, hospital nurses and servants, if they fall into the hands of the American Army, are not prisoners of war, unless the commander has reasons to retain them…

Comment: The principle that medical personnel should be immediately freed to continue their life-saving work was first established in May 1862 by Maj. Gen. Thomas J. “Stonewall” Jackson’s medical director, Dr. Hunter McGuire. McGuire freed seven Union doctors who had stayed behind to treat the wounded after U.S. forces evacuated Winchester.[6]

By contrast, Article 50 provided that civilians who traveled with an army—such as sutlers and newspaper reporters—were to be detained as POWs.

Article 56.

A prisoner of war is subject to no punishment for being a public enemy, nor is any revenge wreaked upon him by the intentional infliction of any suffering, or disgrace, by cruel imprisonment, want of food, by mutilation, death, or any other barbarity. 

Comment:  It seems as if the Code mandates humane treatment of those held as prisoners.

Article 57.

… No belligerent has a right to declare that enemies of a certain class, color, or condition, when properly organized as soldiers, will not be treated by him as public enemies (emphasis supplied). 

Article 58.

The law of nations knows of no distinction of color, and if an enemy of the United States should enslave and sell any captured persons of their army, it would be a case for the severest retaliation, if not redressed upon complaint.

The United States cannot retaliate by enslavement; therefore death must be the retaliation for this crime against the law of nations (emphasis supplied). 

Comment:  Articles 57 and 58 protect U.S. African American soldiers and their white officers.

Article 59.

 … All prisoners of war are liable to the infliction of retaliatory measures. 

Comment:  While Article 56 (and other Articles) assures POWs humane treatment, they can be utilized as objects of retaliation if their own country engages in misconduct.

For example, Lincoln relied upon Lieber’s language when in 1863 he issued a proclamation threatening retaliation against Confederate POWs for mistreatment of U.S. African American troops held as POWs.[7] Moreover, the U.S. was accused of implementing a policy of retaliation by reducing food rations afforded Confederate POWs in response to reports that U.S. POWs were being deliberately starved.[8] Also, in October 1864, some 600 Confederate POWs were placed in the direct line of cannon fire outside of Charleston in response to reports that Confederates in town were using Union POWs as human shields.[9]

Each of these examples of retaliation bore a direct nexus to a similar action taken (or allegedly taken) by the Confederates. No such nexus, however, can be found in situations in which U.S. commanders forced Confederate POWs to undertake the dangerous task of uncovering and disarming landmines confronting U.S. forces.[10]

Article 72.

Money and other valuables on the person of a prisoner, such as watches or jewelry, as well as extra clothing, are regarded by the American Army as the private property of the prisoner, and the appropriation of such valuables or money is considered dishonorable, and is prohibited…

Comment:  This Article was not uniformly followed, as shown by POWs’ experience at Point Lookout, Maryland.[11]

Article 75.

Prisoners of war are subject to confinement or imprisonment such as may be deemed necessary on account of safety, but they are to be subjected to no other intentional suffering or indignity… (emphasis supplied).

Comment: POWs (of both sides) would certainly claim that this Article was only honored in the breach. For example, in addition to inadequate food and outbreaks of disease, some Confederate POWs suffered from being held in unfamiliarly harsh Northern climes while being denied adequate clothing, even when available from outside sources.

Henry Kyd Douglas, notable as the youngest member of Stonewall Jackson’s staff, wrote of his time at Johnson’s Island (located in Sandusky Bay, Ohio): “[T]he 42° of Latitude, North, is hardly the place Southerners would select as a winter resort.  Johnson’s Island, however, was just the place to convert visitors to the theological belief of the Norwegian that Hell has torments of cold instead of heat.”[12]

Article 76.

Prisoners of war shall be fed upon plain and wholesome food, whenever practicable, and treated with humanity. 

They may be required to work for the benefit of the captor’s government, according to their rank and condition.

Comment: Here, the Code provides that POWs may be put to manual labor. Thus, African American Union POWs could in fact be compelled to labor, but the point is that the CSA could not discriminate in what class of POW it used for labor, nor consider African American POWs as mere enslaved persons.

Article 77.

A prisoner of war who escapes may be shot or otherwise killed in his flight; but neither death nor any other punishment shall be inflicted upon him simply for his attempt to escape, which the law of war does not consider a crime…

If, however, a conspiracy is discovered, the purpose of which is a united or general escape, the conspirators may be rigorously punished, even with death…

Comment:  It is interesting that the Code forbids punishing individual POWs who attempt to escape, but if POWs work together (“conspiracy”), they may be put to death.  Also, what does it mean that a POW may be shot or otherwise killed “in his flight”?  Is that right limited to the actual moment of attempted escape (i.e., “hot pursuit”), and not permitted when the POW is taken in the act of fleeing back to his own lines?  Or is this latter also part of the POW’s “flight”?

Article 78.

If prisoners of war, having given no pledge nor made any promise on their honor, forcibly or otherwise escape, and are captured again in battle after having rejoined their own army, they shall not be punished for their escape…

Article 79.

Every captured wounded enemy shall be medically treated, according to the ability of the medical staff.

Article 80. 

Honorable men, when captured, will abstain from giving to the enemy information concerning their own army, and the modern law of war permits no longer the use of any violence against prisoners in order to extort the desired information or to punish them for having given false information.

Article 119.

Prisoners of war may be released from captivity by exchange, and, under certain circumstances, also by parole.

Comment: The subject of paroles, another controversial wartime issue, will be the subject of a future post.

Summary: The Lieber Code, on its face, mandated humane treatment of POWs. In actual experience, POWs on both sides of the conflict endured horrendous conditions. But at least the Code established precedent for future efforts to codify by international agreement the proper treatment of POWs of future wars.

 

[1] The War of the Rebellion: A Compilation of The Official Records of The Union and Confederate Armies, Series III, Vol. 3 (U.S. Government Printing Office, Washington, D.C., 1880 – 1901), pp. 148-164.

[2] William B. Hesseltine, Ed., Civil War Prisons (Kent, OH, The Kent State University Press, 1962), p. 5.

[3]  Arthur T. Downey, Civil War Lawyers: Constitutional Questions, Courtroom Dramas, and the Men Behind Them(ABA Publishing, Chicago, 2010), pp. 279-281.

[4] Report of the Joint Committee on Reconstruction, 39^th Congress, 1^st Session, part II, 129, 134-135 (Washington, D.C.: Government Printing Office 1866). Lee appeared before Congress on February 17, 1866.

[5] Andersonville’s rate of mortality was 29%. By contrast, the death rate at Elmira was 24.3%. James M. McPherson, Battle Cry of Freedom: The Civil War Era, p. 802 (Oxford University Press, New York, NY 1988); Michael Horigan, Elmira: Death Camp of the North, p. 193 (Stackpole Books, Mechanicsburg, PA 2002). Over the course of the war: “More than 49,000 prisoners died in captivity, at least 26,440 Confederate and 22,580 Union, an overall mortality rate of 14 percent. Twelve percent of Confederate prisoners and 18 percent of Union captives never returned from incarceration.”Confederate Cemetery, Island History – Civil War Era, Confederate Cemetery, http://johnsonsisland.org/history-pows/civil-war-era/confederate-cemetery/; Michael E. Haskew, Prisons of the Civil War: An Enduring Controversy, Civil War Quarterly (Summer 2013), https://warfarehistorynetwork.com/article/prisons-of-the-civil-war-an-enduring-controversy/.

[6] Sarah Kay Bierle, ‘“Unconditional Release”: Dr. Hunter McGuire’s Precedent in American Military Medicine,’ National Museum of Civil War Medicine (May 24, 2018), https://www.civilwarmed.org/winchester-accord/.

[7] John Fabian Witt, Lincoln’s Code: The Laws of War in American History (Free Press, New York, NY, 2012), p. 248. See also Lincoln’s General Orders No. 252, July 31, 1863, https://archive.org/details/civilwargovernme00unit/page/n77/mode/2up (threatening retaliation for abuse of black U.S. soldiers).

[8] Michael Horigan, Elmira: Death Camp of the North (Stackpole Books, Mechanicsburg, PA, 2002), pp. 94-99;Hesseltine, p. 103; Bradley M. Gottfried and Linda I. Gottfried, Hell Comes to Southern Maryland: The Story of Point Lookout Prison and Hammond General Hospital (Turning Point Publishing, Fairfield, PA, 2018), p. 36; Dereck D. Maxfield, Hellmira: The Union’s Most Infamous Civil War Prison Camp-Elmira, NY (Savas Beatie, El Dorado Hills, CA, 2020), p. 67.

[9] “The Immortal Six Hundred,” Fort Pulaski National Monument, NPS, https://www.nps.gov/fopu/learn/historyculture/the-immortal-six-hundred.htm.

[10] John Grady, “Mine Warfare In The Civil War,” The Amry Historical Foundation, https://armyhistory.org/mine-warfare-in-the-civil-war/.

[11] Robert E. Crickenberger Jr., Point Lookout, Maryland: The Largest Civil War Prison (El Dorado Hills, CA, Savas Beatie, 2026), pp. 47-49.

[12] Henry Kyd Douglas, I Rode With Stonewall: The War Experiences of the Youngest Member of Jackson’s Staff, p. 260 (The University of North Carolina Press, Chapel Hill, NC, 1968); Conditions At Johnson’s Island Prison During the Civil War, Unpublished Master’s Thesis (Bowling Green University, January 1960), pp. 59-66, https://etd.ohiolink.edu/acprod/odb_etd/ws/send_file/send?accession=bgsu1670398956769758&disposition=inline. This passage discusses a variety of issues regarding the subject of clothing.