In the aftermath of the war, the government, and Lieber himself, would struggle to balance his code of war with the rights demanded in a free nation. The Bureau of Military Justice under JAG Holt sought to use the laws of war to charge former Confederates.[1] This became particularly important after the assassination of Lincoln; Holt and others pointed to Article 148 of the General Orders, which stated that “Civilized nations look with horror upon…the assassination of enemies as relapses into barbarism.”[2] Accordingly, Holt and Attorney General Speed brought forward these cases as military tribunals.[3] Holt would even enter the General Orders into evidence during the trial.[4]
Articles 145-149 of Instructions for the Government of Armies of the United States in the Field, courtesy of the Library of Congress.
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However, US authorities went too far in their application of the Orders. In Ex parte Milligan, 1866, A.G. Speed and Benjamin Butler argued that the Code allowed for the prosecution of American citizens under military tribunals, even outside of war zones. The Supreme Court unanimously rejected this idea.[5] Per Justice David Davis,
if true, republican government is a failure....Martial law established on such a basis destroys every guarantee of the Constitution, and effectually renders the "military independent of and superior to the civil power" -- the attempt to do which by the King of Great Britain was deemed by our fathers....one of the causes which impelled them to declare their independence. Civil liberty and this kind of martial law cannot endure.”[6]
Judge Advocate General Joseph Holt, (left, courtesy of the Library of Congress), and Justice David Davis, (right, courtesy of Oyez.org). Holt and Davis had two radically different understandings of the applicability of the General Orders; Holt's aggressive attitude and Davis's conservatism would bring about a quagmire for the Code's utility during Reconstruction.)
Lieber attempted to warn the government that this methodology was ineffective. Prior to the treason trial of Jefferson Davis, Lieber argued that the government ought not to try Davis under a military tribunal.[7] Lieber was appointed to conduct research into the Confederate files, alongside his son Norman.[8] However, nothing could be found which proved any guilt of Jefferson Davis for treason. At Davis’s inevitable acquittal, Lieber wrote that “The trial of Jefferson Davis…will be a terrible thing….we shall stand there completely beaten.”[9]
Likewise, Lieber was beaten in his own personal life. Lieber found himself removed from the faculty at Columbia College by new President Frederick A.P. Barnard.[10] Lieber and Barnard clashed over many different issues, including Barnard’s former support for slavery. When Lieber passed away on 2 October 1872, Copperheads at Columbia intervened such that the University’s eulogy for him made no mention of the Lieber code or of his work as a Union propagandist.[11] Although the latter year’s of Lieber’s life were complicated and difficult, perhaps he took some solace in living long enough to see the creation of a German state. The creation of the German Empire in 1871 would have closed a loop that had been open since the earliest years of Lieber’s life.
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Frederick A.P. Barnard, courtesy of Columbia University Libraries. Conservatives like Barnard maneuvered against Lieber in the late years of his tenure at Columbia.
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Lieber’s work remains crucial. In its immediate aftermath, it was adopted by European armies; in time, it would be integrated into the Hague conferences of 1899 and 1907 and the Geneva Convention of 1949.[4] In the era of the Civil War, Lieber advanced a political theory that upheld the primacy of the national government, and of the American republic specifically, whose structure protected against the tyranny of the majority. Lieber saw the Civil War as a struggle between the republic and tyranny, and worked to the victory of the republic. Lieber’s theories defended the rightness of the Union cause, and went beyond mere Unionism to argue that the Union had every right end slavery. In an era where such a position was highly unpopular, even among Unionists and patriots, Lieber codified that the United States had an obligation to guarantee Black men serving under arms the rights due to any other soldiers. From nationalistic, even highly reactionary roots, Lieber embraced the values of the United States and championed the fight for republicanism, emancipation, and equality.
Text of the Hague Convention of 1907, courtesy of the International Committee of the Red Cross. The definition of belligerents and their legal rights mirrors Lieber's own in Guerrilla Parties and General Orders.
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Text of the First Geneva Convention, courtesy of the International Committee of the Red Cross. The definition of irregular forces and their rights, as well as the prohibition against discrimination in Article 12, draws its influence from Lieber's code.
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Resources
Works by Francis Lieber:
- Instructions for the Government of the Armies of the United States in the Field, also known as General Orders No. 100, 1863
- Scanned print copy, from the Lieber Collection, Library of Congress
- Web text version, from the Lillian Goldman Law Library at Yale Law School
- Scanned print copy, from the Lieber Collection, Library of Congress
- Guerrilla Parties Considered with Reference to the Laws and Usages of War, 1862
- Scanned print copy, from the Lieber Collection, Library of Congress
- Scanned print copy, from the Lieber Collection, Library of Congress
- On Civil Liberty and Self-Government, 1853
- Digitized copy, from the Library of Congress
- Web text, from the Online Library of Liberty
- Digitized copy, from the Library of Congress
- October 22, 1864 letter to Abraham Lincoln, concerning the Loyal Publication Society
- Digitized copy, from the Library of Congress
- Digitized copy, from the Library of Congress
- A Song on our Country and Her Flag, lyrics pamphlet by Francis Lieber, 1861
- Digitized copy, from the Library of Congress
- Digitized copy, from the Library of Congress
- Legal and Political Hermeneutics, political theory, 1839
- Digitized copy by the Library of Congress
- Digitized copy by the Library of Congress
- The Stranger in America, or Letters to a Gentleman in Germany, 1835
- Digitized copy by the Library of Congress
- Digitized copy by the Library of Congress
- Further sources available in the Lieber Collection at the Library of Congress, including print correspondence.
Works about Lieber
The following works, among others, were important in conducting research for this website.
D. H. DILBECK. “The More Vigorously Wars Are Pursued, the Better It Is for Humanity: Francis Lieber and General Orders No. 100.” In A More Civil War, 69–. The University of North Carolina Press, 2016.
as well as
D. H. Dilbeck. “‘Responsible to One Another and to God’: Why Francis Lieber Believed the Union War Must Remain a Just War.” In New Perspectives on the Union War, 143–159. New York, USA: Fordham University Press, 2020.
Dilbeck's work focuses on the importance of wartime conditions regarding guerrillas, the parole system, and others in assessing the origins of the code of war.
Harmut Keil, “Francis Lieber’s Attitudes on Race, Slavery and Abolition,” Journal of American Ethnic History 28 (2008).
Keil's work discusses the racial attitudes of German immigrants, with a focus on Lieber and his experiences.
Matthew J. Mancini, “Francis Lieber, Slavery, and the ‘Genesis’ of the Laws of War.” The Journal of southern history 77, no. 2 (2011): 325–348.
Mancini's article on Lieber focuses on the importance of antislavery in Lieber's work and its influence on the Code.
Samara Trilling, "A Tale of Two Columbias," Columbia University & Slavery, accessed 2021.
Trilling's article provides a general overview and of Lieber's experiences with slavery, and provides information about further scholarly work on the subject.
Further works include Francis Lieber: Nineteenth-Century Liberal by Frank Freidel, 1947, as well as others cited at the bottom of pages here.
The following works, among others, were important in conducting research for this website.
D. H. DILBECK. “The More Vigorously Wars Are Pursued, the Better It Is for Humanity: Francis Lieber and General Orders No. 100.” In A More Civil War, 69–. The University of North Carolina Press, 2016.
as well as
D. H. Dilbeck. “‘Responsible to One Another and to God’: Why Francis Lieber Believed the Union War Must Remain a Just War.” In New Perspectives on the Union War, 143–159. New York, USA: Fordham University Press, 2020.
Dilbeck's work focuses on the importance of wartime conditions regarding guerrillas, the parole system, and others in assessing the origins of the code of war.
Harmut Keil, “Francis Lieber’s Attitudes on Race, Slavery and Abolition,” Journal of American Ethnic History 28 (2008).
Keil's work discusses the racial attitudes of German immigrants, with a focus on Lieber and his experiences.
Matthew J. Mancini, “Francis Lieber, Slavery, and the ‘Genesis’ of the Laws of War.” The Journal of southern history 77, no. 2 (2011): 325–348.
Mancini's article on Lieber focuses on the importance of antislavery in Lieber's work and its influence on the Code.
Samara Trilling, "A Tale of Two Columbias," Columbia University & Slavery, accessed 2021.
Trilling's article provides a general overview and of Lieber's experiences with slavery, and provides information about further scholarly work on the subject.
Further works include Francis Lieber: Nineteenth-Century Liberal by Frank Freidel, 1947, as well as others cited at the bottom of pages here.
Notes
[1] Witt 289.
[2] U.S. Department of War, Instructions for the Government of Armies of the United States in the Field, Francis Lieber et al, Lillian Goldman Law Library: Yale Law School, 2008. [WEB]
[3] Witt 290.
[4] Witt 294.
[5] "Ex parte Milligan." Oyez. Accessed December 15, 2021. [WEB].
[6] Ex parte Milligan, 71 US 2 (1866).
[7] Witt 318.
[8] Witt 319.
[9] Witt, 320-321.
[10] Trilling “A Tale of Two Columbias”.
[11] Trilling “A Tale of Two Columbias”.
[12] Dilbeck, “The More Vigorously Wars are Pursued”, 95.
[2] U.S. Department of War, Instructions for the Government of Armies of the United States in the Field, Francis Lieber et al, Lillian Goldman Law Library: Yale Law School, 2008. [WEB]
[3] Witt 290.
[4] Witt 294.
[5] "Ex parte Milligan." Oyez. Accessed December 15, 2021. [WEB].
[6] Ex parte Milligan, 71 US 2 (1866).
[7] Witt 318.
[8] Witt 319.
[9] Witt, 320-321.
[10] Trilling “A Tale of Two Columbias”.
[11] Trilling “A Tale of Two Columbias”.
[12] Dilbeck, “The More Vigorously Wars are Pursued”, 95.