General Orders No. 100
In response to the crises of the American Civil War, Francis Lieber drafted a defining text of the laws of war.
The Origins of the Code
One of the defining issues that prompted the creation of the "Lieber code" was the contraband crisis. When Confederate officers demanded the return of slaves who had fled to Union lines, Union officers, starting with Benjamin Butler, declared that these slaves were contraband, seized property of the enemy. As this unfolded, Lieber visited Butler at Fort Monroe, site of the first runaway crisis, to try and understand the policy.[1]
As Butler went one way, other officers went another; Lieber was outraged when General McClellan issued an order to return runaway slaves in May 1861.[2] A later proclamation by McClellan that he would help the Confederates put down a slave uprising, issued on 26 May, pushed Lieber towards wanting to write a code of the laws of war.[3] Lieber began to formulate such a theory of the laws of war with the course “The Laws and Usages of War”, his lectures printed in national newspapers from October 1861 to March 1862.[4] In the course, Lieber criticized the thinking of Enlightenment-era scholars like Emmerich Vattel that the morality of war was distinct from its end goal; purely the practice of the war dictated whether or not it was moral.[5] In Lieber’s view, this was ignorant. Lieber argued that “Freedom…is a goddess who cannot afford to sheathe her sword forever.”[6] The hard pursuit of a just war, a war in the name of freedom, was different than the hard pursuit of war in the name of slavery.
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A depiction of General Benjamin Butler with Frank Baker, Shepard Mallory and James Townsend, the first three enslaved men to flee to Fort Monroe, courtesy of the National Park Service. Difference in policy between Butler and others led Lieber to consider a code of war.
Emmerich de Vattel, courtesy of the Historical Dictionary of Switzerland. Francis Lieber's rebuke of Vattel's consequence-based view of the morality of war was core to his thinking.
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Events in 1862 intensified the need for an understanding of hard war. First, the war began to take a personal toll on the Lieber family. Hamilton Lieber lost his arm in the Union victory at Fort Donelson; his whereabouts were unknown for weeks while his father searched for him.[7] With the wounding of Hamilton, Lieber understood the severity of the war. He “knew war as…soldier, as a wounded man in the hospital, as an observing citizen,” and now also as a “father searching for his wounded son.”[8] At the same time, Union policy on slavery was growing more unclear. In May of 1862, two generals issued vastly different decrees on slavery. In the Sea Islands, David Hunter abolished slavery; in North Carolina, military governor Edward Stanly declared that runaway slaves would be returned.[9] In response, Lieber penned The Duty of Provisional Governors. Its stance on Hunter was clear; without an order from the executive, he had no right to end slavery unilaterally.[10] But its stance on Stanly was more thorough, and indicated a basis for the end of slavery. “Slavery exists by municipal law, not by the law of nature….Belligerent armies and their respective countries are…divested of all municipal considerations….[Stanly] has not only no power, but…no faculty to discriminate between a free and a bond man…the negro [is a human being], and consequently…is free.”[11] This argument went further than the military necessity argument advanced in favor of confiscation. Union commanders were morally obligated to disregard slavery.
Edward Stanly, courtesy of North Carolina Department of Natural and Cultural Resources. Stanly's policy towards runaway slaves drew special criticism from Lieber, who argued that any commander's recognizance of slavery was fundamentally illegitimate in language that would reappear in the General Orders.
Another work that laid the groundwork for the General Orders was Guerilla Parties Considered with Respect to the Laws and Usages of War, written for General Halleck in July 1862. By this time, the Confederate Congress had passed the Partisan Ranger Act, which allowed commission for partisans to raid behind Union lines.[12] Raiders such as John Morgan and his battalion went as far north as Cincinnati, and the Union military had no standard policy for how to handle guerrilla prisoners.[13] Guerrilla Parties defined partisans in terms of their role. Lieber identified numerous gradients of “guerrilla” and advised differential treatment. He cited the example of “free-corps in Germany opposed to Napoleon”, claiming that “the [high-minded patriots] were entitled to the benefits of the law of war”.[14] Lieber surely shows some favoritism to himself as a Prussian, but the principle espoused is noteworthy, that militants who are not uniformed and armed by a state in particular can still be treated properly as soldiers if fighting for good reason and in good manner. Ultimately, Lieber left such a distinction to commanders in the field. “I do not enter upon a consideration of their application to the civil war in which we are engaged…. The application of the laws… is always undefined.”[15] In Guerrilla Parties, Lieber articulated his view that the intentions of fighters mattered in how they ought to be treated, while still leaving room for practical decisions in the field.
Selections from Guerilla Parties Considered with Reference to the Laws and Usages of War, courtesy of the Library of Congress. The main ideas of the text, written for General Halleck in the summer of 1862, are reflected in the General Orders.
In September 1862, Stonewall Jackson captured and paroled a force of 13,000 federal troops at Harper’s Ferry, the largest total during the war.[16] This immediately prompted questions about the legality of parole – of soldiers being able to willingly surrender their right to fight – in the North. But furthermore, with Antietam and the Emancipation Proclamation, the Lincoln administration needed legal arguments for a harder war and emancipation. In November, Lieber suggested to General Halleck that he could produce such a code.[17] Arrangements were made such that Lieber would be the only civilian to serve on the board.[18] But before he began drafting, the war came home to Francis Lieber. He was finally informed that his son Oscar, who had tragically split with his father over his decision to fight for the Confederacy, had died, at the Battle of Williamsburg early that year, one day before he was confirmed to the board.[19] As Lieber put it, “Civil war…has thus knocked very loudly at our door.”[20] There was now a powerful personal reason for a theory of war that would end the death as quickly as possible.
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Oscar Montgomery Lieber, 1830-1862, courtesy of the Library of Congress. The eldest son of Francis, Oscar had grown apart from his father due to his support for the Confederacy. His death at the Battle of Williamsburg hit Francis Lieber particularly hard.
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General Code No. 100
The final version of Instructions for the Government of Armies of the United States in the Field was sent out by the Lincoln administration as General Order No. 100 on 24 April 1863.[21] In 157 articles, it set out to define the rules of war for the Union army.
Many articles are clearly addressing the parole and the guerrilla issues which were part of the Code’s genesis. Article 128 clarifies that “No paroling on the battlefield; no paroling of entire bodies of troops…and no dismissal of large numbers of prisoners…is permitted.”[22] Such a specific clarification about paroling “entire bodies” of troops is clearly a response to the Harper’s Ferry incident of September 1862.
Articles 124-128 of Instructions for the Government of Armies of the United States in the Field, courtesy of the Library of Congress.
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Article 82 carries forth the definition of guerrillas set out in Guerrilla Parties, clarifying that “men…who commit hostilities…for destruction or plunder…without commission, without [organization]…are not public enemies and…not entitled to the privileges” of captured soldiers.[23] But more broadly, the paper sets out a definition of military necessity that is remarkably broad.
Articles 81-82 of Instructions for the Government of Armies of the United States in the Field, courtesy of the Library of Congress.
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Art. 14 states that “military necessity" includes "any measures which are indispensable for securing the ends of the war”, and 15 clarifies that this allows for "all destruction of life or limbs”, of “property", and of "sustenance."[24]
Articles 13-15 of Instructions for the Government of Armies of the United States in the Field, courtesy of the Library of Congress.
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Furthermore, civilians are not spared; “[t]he citizen...of a hostile country is thus an enemy…and as such is subjected to the hardships of the war.” [25] This is a view reminiscent of Jahn; the people of a state are “constituents” of it, and therefore any war cannot meaningfully detach itself from them. Lieber’s foremost principal is that “[t]he more vigorously wars are pursued, the better it is for humanity. Sharp wars are brief.”[26] This is the doctrine of “Hard, Harder, Hardest” taken to its most refined – the hardest war ends the fastest.
Articles 19-23 of Instructions for the Government of Armies of the United States in the Field, courtesy of the Library of Congress.
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The code is very clear in its hostility to slavery.
In the first place, it explicitly grants the right for the army to emancipate slaves: “A victorious army…may suspend, change or abolish…the relations which arise from the services due…from one citizen…to another.”[27] This is highly ambiguous language, avoiding the use of the term slavery, reminiscent of Constitutional language on the topic.
Articles 30-33 of Instructions for the Government of Armies of the United States in the Field, courtesy of the Library of Congress.
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But Lieber goes further. In language very reminiscent of The Duty of Provisional Governors, Lieber clarifies that “[s]lavery, complicating and confounding the ideas of property…and of personality…exists according to…local law only…The law of nature and nations has never acknowledged it” 42, and accordingly, per Article 43, runaways are forever free.[28]
Articles 41-44 of Instructions for the Government of Armies of the United States in the Field, courtesy of the Library of Congress.
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Scholars have pointed out that this assertion in 42 was inaccurate; enslavement after defeat was a common trait in historical warfare.[29] If Lieber knew this, and put this language in anyway, then he was drawing an even firmer line in the sand. The language goes further than the Emancipation Proclamation, couched as it was in the language of “military necessity”. Lieber argues firmly that slavery is fundamentally illegitimate; it cannot exist between nation. The Union military did not have a “right” to emancipate slaves so much as the war itself ignored the relations of slavery and exposed them as fraudulent. As such, Lieber provided full justification for the end of slavery.
The Code in Practice
The Code quickly found its way throughout the Union military. Law-of-war violation trials were rare prior to the Code’s existence. After it was published, 4,000 people were charged for such crimes, eighty-five percent of them guerrilla fighters.[30] The code was used against traitors ; when the Vallandigham case went to the Supreme Court, the opinion upholding the conviction cited that Vallandigham was tried “under the common law of war” and cited Article 13 of the code.[31] The Court found that his arrest was "in conformity with the instructions for the government of the armies of the United States, approved by the President of the United States... on the 24th of April, 1863."[32] The code also echoed in the rhetoric of General Sherman. Sherman argued to a Confederate commander that “guerrillas…without uniform, without organization…firing on unarmed boats” and “plundering” lacked the protection of the laws of war.[32] Most famously, Sherman echoed Lieber’s sentiments: “the more awful you can make war the sooner it will be over.”[33]
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Clement Vallandigham, courtesy of Federal Bar Council Quarterly. The forceful arrest of Vallandigham for agitation against the Union cause was justified by General Orders No. 100.
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Portrait of General Ethan Allen Hitchcock, courtesy of the Library of Congress. General Hitchcock relied heavily on Lieber's code to justify the broadly unpopular end of the cartel system in order to protect Black prisoners.
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Most notably, the code allowed the Union to suspend prisoner exchanges with the Confederacy once it became clear that the Confederacy would kill or enslave Black prisoners-of-war. There was a tremendous racist backlash to the Union’s suspension of the system; white prisoners of war complained that “[t]he Everlasting Nigger must be protected…and the soldier may take care of himself.”[34] But the Union command remained firm. General Ethan Allen Hitchcock, directing prisoner exchanges, said that the United States had “a most solemn obligation” to see that Black troops were given the “humanity which is due to all other troops…according to the laws of civilized warfare.”[35]
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Article 57 stated that “No belligerent has a right to declare that enemies of a certain …color …will not be treated by him as public enemies”, and 58 clarified that the United States had the right to execute prisoners in retaliation for the enslavement of Black prisoners of war.[36] This policy was widely unpopular, but the military code gave the Lincoln administration a basis on which to continue it. The code’s clauses, egalitarian as they were, held the United States to the protection of its Black prisoners of war.
Articles 55-59 of Instructions for the Government of Armies of the United States in the Field, courtesy of the Library of Congress.
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Notes
[1] Matthew J. Mancini, “Francis Lieber, Slavery, and the ‘Genesis’ of the Laws of War.” The Journal of southern history 77, no. 2 (2011): 334.
[2] Mancini 334.
[3] Mancini 335.
[4] Witt 181.
[5] Witt 182.
[6] Witt 183.
[7] Witt 187.
[8] Witt 187.
[9] Mancini 336.
[10] Mancini 337.
[11] Lieber The Duty of Provisional Governors, quoted in Mancini, “’Genesis’ of the Laws of War”, 337.
[12] Witt 192.
[13] Witt 190.
[14] Lieber, “Guerrilla Parties”, 43-44.
[15] Lieber, “Guerrilla Parties, 53.
[16] Witt 210.
[17] Dilbeck “The More Vigorously Wars are Pursued”, 85.
[18] Dilbeck “The More Vigorously Wars are Pursued”, 86.
[19] Mancini 343.
[20] Witt 193.
[21] Dilbeck “Responsible to One Another”, 153.
[22] Lieber, “Instructions for the Armies”, Article 129.
[23] Lieber, “Instructions for Armies in the Field”, Art. 82.
[24] Lieber, “Instructions for Armies in the Field”, Art. 14-15.
[25] Lieber, “Instructions for Armies in the Field”, Art. 21.
[26] Lieber, “Instructions for Armies in the Field”, Art. 29.
[27] Lieber, “Instructions for Armies in the Field”, Art. 32.
[28] Lieber, “Instructions for Armies in the Field”, Art. 42.
[29] Witt 242.
[30] Witt 267.
[31] Witt 273.
[32] Ex parte Vallandigham, 68 U.S. 243 (1864).
[33] Witt 195.
[34] Witt 279.
[35] Witt 261.
[36] Witt 259.
[37] Lieber, “Instructions for Armies in the Field”, Art. 57-58.
[2] Mancini 334.
[3] Mancini 335.
[4] Witt 181.
[5] Witt 182.
[6] Witt 183.
[7] Witt 187.
[8] Witt 187.
[9] Mancini 336.
[10] Mancini 337.
[11] Lieber The Duty of Provisional Governors, quoted in Mancini, “’Genesis’ of the Laws of War”, 337.
[12] Witt 192.
[13] Witt 190.
[14] Lieber, “Guerrilla Parties”, 43-44.
[15] Lieber, “Guerrilla Parties, 53.
[16] Witt 210.
[17] Dilbeck “The More Vigorously Wars are Pursued”, 85.
[18] Dilbeck “The More Vigorously Wars are Pursued”, 86.
[19] Mancini 343.
[20] Witt 193.
[21] Dilbeck “Responsible to One Another”, 153.
[22] Lieber, “Instructions for the Armies”, Article 129.
[23] Lieber, “Instructions for Armies in the Field”, Art. 82.
[24] Lieber, “Instructions for Armies in the Field”, Art. 14-15.
[25] Lieber, “Instructions for Armies in the Field”, Art. 21.
[26] Lieber, “Instructions for Armies in the Field”, Art. 29.
[27] Lieber, “Instructions for Armies in the Field”, Art. 32.
[28] Lieber, “Instructions for Armies in the Field”, Art. 42.
[29] Witt 242.
[30] Witt 267.
[31] Witt 273.
[32] Ex parte Vallandigham, 68 U.S. 243 (1864).
[33] Witt 195.
[34] Witt 279.
[35] Witt 261.
[36] Witt 259.
[37] Lieber, “Instructions for Armies in the Field”, Art. 57-58.