Lincoln's Code: The Laws of War in American History.

Author:Solis, Gary D.
Position:Book review

Lincoln's Code: The Laws of War in American History. By John Fabian Witt. New York, London: Free Press, 2012. Pp. viii, 498. Index. $32.

John Fabian Witt has written a scholarly text that doubles as a historical page-turner. Lincoln s Code: The Laws of War in American History is an impressive balance of academic rigor and popular writing. The book captures a little-known but significant aspect of American history, illustrates its unrecognized contribution to modern international law, and adds liberal dashes of warfare, political intrigue, and revelations of tawdry conduct by the Founding Fathers. Such an admixture requires subject-matter expertise and authorial skill, as well as an ability to make modest textual compromises to convey academic content without losing the readers' attention. With exceptional skill, Witt succeeds. Although the text is aimed at a broad popular market, the academic reader, however, may find some compromises distracting.

In American publishing, accounts of the Civil War are a dependable and evergreen subject. No aspect of the 1861-65 conflict seems too arcane or too minimal to merit book-length publication. Witt, the Yale University Allen H. Duffy Class of 1960 Professor of Law and a Yale professor of history, examines a serious aspect of Abraham Lincoln's presidency: the Lieber Code, along with its impact on emancipation. Few academics and even fewer laypersons are familiar with the 1863 Code or its author, Professor Francis Lieber, let alone its supporting role in ending slavery. Witt cures that lacuna.

While many internationalists are aware of the 1864 Geneva Convention for the Amelioration of the Condition of the Sick and Wounded of Armies in the Field, (1) few are familiar with the Lieber Code. Lieber was born in Germany in 1798. As a boy he saw Napoleon's occupation troops arrive in his native Berlin, stoking a hatred of the emperor. Lieber soon enlisted in the Prussian army, and in 1815, still little more than a child, he was seriously wounded at Namur while fighting the French.

After convalescence and military discharge, he returned to Berlin, eventually earning a doctorate at Jena. His youthful idealism led him to Greece, where he fought the Turks. His travels and antiauthoritarian streak aroused German government suspicions, and he was charged with sedition and jailed for several months. In 1826, Lieber emigrated to England, then to Boston, and eventually to the South, where he was appointed a professor at what is now the University of South Carolina. His subsequent books on political science were published to critical praise.

In 1856, Lieber and his growing family moved to New York City's Columbia College, where he was appointed a professor of history and political economy. "Lieber's southern experience ingrained in him a visceral reaction against slavery. He saw in slavery conservatism contrary to fundamental notions of human rights and liberty." (2) As the Civil War approached, he had become a prominent political philosopher and consultant to the Union government, owing to his writings and lectures on the customs and usages of war. General Henry W. Halleck, later appointed general-in-chief of the Union army, took an interest in Lieber and his writings. Indeed, Halleck urged Secretary of War Edwin Stanton to appoint Lieber to the newly created position of judge advocate general of the army, but Stanton instead selected a political ally, Joseph Holt, for the post. Lieber lobbied to be allowed to write a compilation of the customary rules of warfare and in 1862 was appointed to a board of senior military officers. While the officers worked on revising the 1806 Articles of War, Lieber was tasked with writing a code of regulations for the government of the army. He had no model from which to work.

In truth there was literally nothing by way of precedential codification. Military practice, as he knew it, and the chapters on war in the few international law texts, were about all that Lieber had to work with.... [T]oday [the Code] still commands attention as the germinal document for codification of the laws of land warfare. (3) The Union army adopted the Lieber Code in 1863. (4) It was a landmark achievement as the first instruction on the customs and usage of war of that day intended for soldiers in the field. All armies by then acknowledged some limitations on battlefield conduct, but precise limitations were not agreed upon. Lieber emphasized that combatants should be commanded, disciplined, follow the customs and usages of war, and distinguish themselves from civilians--previously uncodified practices that had evolved over hundreds of years of warfare. The Lieber Code was intended to meet the needs of the large number of commanders and staff officers in the federal forces whose experience in the field was limited. Impressed by the 157-article Code, and with Halleck's board's endorsement, the secretary of war authorized its incorporation into the Union army's general orders as General Order No. 100. It was a...

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