According to witt, the only question of leibers laws of war was a simple one. With resources strained by the unprecedented number of prisoners. The main sections concerned martial law, military jurisdiction, and the treatment of spies, deserters, and prisoners of war. In 1863, under lincoln s authority, a military theorist named francis lieber drafted. Norman lieber and edited and with an introduction by will smiley and john fabian witt, is out from the yale univbersity press. The origins and limits of the principle of military necessity the roots of the modern law of war lie in the 1860s. Francis lieber american philosopher and jurist britannica. The philosopher and legal scholar francis lieber was born in 1798 in germany. This next edition of liberty law talk is with john fabian witt on his new book lincoln s code. In august 1861, when one of his generals attempted to emancipate the slaves under martial law, lincoln countermanded the order. Instead of embracing lincoln s new urgency, mcclellan lectured lincoln on the laws of civilized warfare and the sharp constraints they placed on his prosecution of the union war. Lincolns code is a rich, subtle, and honest book that uncovers the deep impact of the laws of war in american history. I learned a ton from it and will continue to learn a ton on rereading.
The information he gathered from the federal research division pertained to francis lieber, the actual author of the first codes of war. In lincoln s code, writer and professor john fabian witt tells the story of francis lieber, the man who wrote the rules of war for abraham lincoln, and how those rules became the basis for. He is best known for crafting the earliest official government codification of the customary laws of war. Spies, war traitors, and war rebels are not exchanged according to the common law of war. Lieber s code i know of no better way to introduce this panel in honor of dean rusk than by referring to a seminal work of francis lieber, one of my predecessors on the faculty at the university of south carolina. Lincoln s thinking on slavery and the laws of war took longer to evolve. The laws of war in american history, witt argues, have sought to balance two principles. Norman lieber 18371923, franciss son, taught law at west. He was the author of the lieber code during the american civil war, also known as code for the government of armies in the field 1863. Africanamerican pows and the lieber code civil war saga. According to the book law of war workshop deskbook, article 58 wasnt. Francis lieber march 18, 1798 or 1800 october 2, 1872, known as franz lieber in germany, was a germanamerican jurist, gymnast and political philosopher. Carnahan the roots of the modern law of war lie in the 1860s.
This theme must have resonated with president lincoln. Lieber was uniquely qualified to codify the laws by which that war should be conducted. Known as the lieber code, this document would serve as the basis for the rules of war for union soldiers throughout the war. Instructions for the government of the armies of the united states in the field, commonly known as the lieber code after its main author francis franz lieber. Author and law professor gary solis talked about the 1863 lieber code, authored by legal scholar francis lieber during the civil war. The book has a detailed account of lieber s life and career. When the lincoln administration asked lieber to draft a new code of wartime regulations, he produced what witt calls a pathbreaking distillation of the laws of war for the age of democratic.
The document was one of the first attempts to codify the. Lincoln s code the laws of war in american history by john. Francis lieber and the law of war the new york times. His 1861 lecture course on laws of war at columbias newly founded law school was published in full in the new york times. The laws of war in american history by john fabian witt free press, 498 pp.
It summed up tensions that have been inherent in the law of war in american history from the revolution to the present. This essay offers a critical analysis of john witts book on the law of war, lincoln s code. Paul finkelman is the president william mckinley distinguished professor of law and public policy at albany law school. Promulgated at the height of the american civil war 186165, it proposed a set of rules to govern the conduct of hostilities by the united states armies union or north against the confederate states of america confederacy or south. In 1863 there was an international convention in geneva, switzerland, that sought to codify international law with regard to the conduct of war. Torture, america, and the laws of war the new republic. Next liberty law talk is with john fabian witt on lincoln. Francis lieber 17981872 was professor at columbia college who advised abraham lincoln on the law of war. Promulgated by president lincoln in 1863 general order no. Emancipation thus conformed to lieber s concept of aggressive war measures legitimized by the goal in sight. The same notion of aggressive war was practiced by judge advocate general joseph holt, who upheld lincoln s use of war powers and the use of military commissions to try those accused of transgressing the laws of war.
Lincoln, lieber, and the politics of captivity critical moments in american history paul j. Lincolns code by john fabian witt the new york times. Liebers code and the law of war the lincoln financial. Laws and treaties protecting cultural property the lieber code of 1863. John witts lincolns code, on abraham lincoln and the law. Witt points out that lincoln did much to advance the law of war. Francis lieber, a prussianborn american political philosopher and public intellectual, was an internationally recognized authority on international and military law and a key legal advisor to the lincoln administration during the civil war. Panelists, including law professor gary solis, talk about the 1863 lieber code, authored by legal scholar francis lieber during the civil war. Lincoln s code the laws of war in american history by john fabian witt. Lincoln and lieber s code of war was not just a list of prescriptions. On behalf of us president lincoln, lieber prepared the general order no 100. For lieber and lincoln, in the american civil war, that peace was one without slavery.
The laws of war in american history witt, john fabian on. The lieber code set out rules of conduct during hostilities for union soldiers throughout the u. It was a way to advance the emancipation proclamation and arm the 200,000 black soldiers who would help end slavery once and for all. The origins and limits of the principle of military necessity by burrus m. Lincoln signed a military order, originally known as general order no. The lieber code of april 24, 1863, also known as general order no. Yale legal historian john fabian witt has written a superb, illuminating, and startling history of u. But he also made a less known, and highly important, second contribution to the union cause. Lincoln s code is a rich, subtle, and honest book that uncovers the deep impact of the laws of war in american history. Prepared by legal scholar francis lieber, this was one of. A lost treatise on martial law, written by francis lieber and g. The lieber code the first modern codification of the. The origins and limits of the principle of military. During the civil war, 410,000 people were held as prisoners of war on both sides.
The lieber code remained the standard guidance on the law of war for the u. In fact, to this day the lieber code remains the basis of most regulations of the law of war for the united states and under international law. Francis lieber, original name franz lieber, born march 18, 1798, berlindied oct. His book on civil liberty and self government 1853 was a. Targeting civilians has been a common practice ever since world war ii, but its roots lie in lincoln s war. Panelists talkabout the development of the lieber code, a code of war drafted during the civil war and adopted by the u.
Lincoln and the strategy of unconditional surrender, in lincoln. Lieber was something of an intellectual celebrity in his time. Curatorship of the lincoln financial foundation collection is a joint venture between the indiana state museum and the allen county public library, assuring a level of care, as well as public and scholarly usefulness, no single institution could match. One of the fundamental themes of the lieber code was that the violence of war should be directed only at valid military objectives, and that acts of revenge or cruelty, intended merely to increase the suffering of enemy soldiers or civilians, were prohibited and must be punished. The essay applauds much of witts book, but criticizes his work for 1 failing to understand the way the us supported slavery in the constitution from 1787 to 1861. James oakes and john witt talked about their books on the process of emancipation during the civil war. The heart of this book focuses on the american civil war, and especially on the first serious attempt to. Army until a new manual was issued in 1914, and even that extensively quoted from the code. As such, the laws of war not only have served to constrain the actions of the combatants during a conflict but also to vindicate the purpose for which the war was fought in the first place. The law of war, like the criminal law regarding other offenses, makes no difference on account of the difference of sexes, concerning the spy, the war traitor, or the war rebel. And it strongly emphasizes the salience of slavery questions in the lieber code. President abraham lincoln issued general orders no.
During the civil war, 410, 000 people were held as prisoners of war on both sides. The lieber code the first modern codification of the laws of war. With resources strained by the unprecedented number of prisoners, conditions in overcrowded prison camps were dismal, and the death toll across confederate and union prisons reached 56,000 by the end of the war. Pulitzer prize finalist bancroft prize winner aba silver gavel award winner a new york times notable book of the year in the closing days of 1862. Lincolns code, by john fabian witt the new york times. Early in the 19th century, chief justice marshall noted that sovereign nations had the right to confiscate property of an enemy during armed conflict, but the lieber code of 1863, formally known as general order no.