Academic journal article The Journal of Southern History

Francis Lieber, Slavery, and the "Genesis" of the Laws of War

Academic journal article The Journal of Southern History

Francis Lieber, Slavery, and the "Genesis" of the Laws of War

Article excerpt

ON APRIL 24, 1863, SECRETARY OF WAR EDWIN M. STANTON, WITH THE approval of President Abraham Lincoln, directed that General Orders No. 100: Instructions for the Government of Armies of the United States in the Field be issued to Union officers. General Orders No. 100 was the first modern codification of the rules of warfare, the first such code to be formally adopted by a government, and the basis of several subsequent editions of the standard manual governing U.S. armies in the field. The author of No. 100 was the Prussian immigrant intellectual Francis Lieber (1798-1872); it is therefore often referred to as Lieber's code. (1) Lieber himself developed a great sense of pride in the document, and in later years he referred to it as "Old Hundred." Lieber composed the code during the most intense emotional crisis of his life, and, as will be argued below, that crisis--the death of his beloved eldest son, Oscar, of the Second Regiment, South Carolina Volunteers, at the battle of Williamsburg in May 1862--left traces on the subsequent document that established the modern rules of war.

The literature on Lieber's code, while not vast in scope, is high in quality. (2) Several authors have directed attention to the origins of the code, citing the military situation of 1862, the problems arising out of the use of guerrilla tactics by Confederate sympathizers, and Lieber's own desires and ambitions as a scholar of international law. However, such accounts, valid as they may be if considered in a strictly military context, must be seen as partial explanations at best, for they take no notice of a factor that Lieber himself considered to be far more important than those purely tactical problems. That factor appears in the account given directly by Lieber himself, in a letter to a once well-known, now forgotten historian that is in the Lieber papers in the Library of Congress and that no previous scholar has referred to, or presumably examined. (3) In the letter, Lieber unequivocally asserted that the code arose out of a mighty force that no code or policy had foreseen, namely the self-emancipation of scores, then hundreds, and finally thousands of slaves.

The authorship of General Orders No. 100 was the most important achievement of Francis Lieber's long life, a life that was crammed with exciting events, shaped by direct involvement in world-historical upheavals, and marked by the publication of numerous, massive tomes and countless, often polemical essays and articles. Born at the dawn of Prussian nationalism in 1798, Lieber lived to see its fulfillment in 1871. All his life he remained a fervent adherent of that ideology in its more liberal forms. As a boy, he took an oath to assassinate Napoleon, joined the Colberg Regiment at sixteen, and suffered severe wounds in the chest and neck during the Waterloo campaign. A few years later, aflame with fantastic and soon-to-be crushed misconceptions about the enduring glories of Attic civilization and Athenian democracy, he hastened to Greece to fight in the uprising against Ottoman rule. He then spent a year in Rome as tutor to the son of the great German historian of ancient Rome, Barthold Georg Niebuhr. Eventually he was pursued and even jailed by the Prussian police for the inconvenient persistence of his liberal ideas. Forced into exile, he wandered to London and eventually Boston--the Athens of America--where he founded the Encyclopedia Americana and befriended Alexis de Tocqueville and Gustave de Beaumont during their visit to that American citadel of democracy and civilization. Lieber became one of the most constant and trusted of Beaumont's and Tocqueville's American informants, right up through the 1850s. (4) Lieber's personality exhibited, in part, a combination of inflated self-esteem and a prickly sensitivity to slights. He always felt, undoubtedly with some justice, that his foreignness was a barrier to his academic advancement in the United States. Yet he embraced the American Union with a fervor every bit as intense as, but more thoughtful and mature than, that of his youthful devotion to his homeland. …

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