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Book Reviews

Lincoln’s Code: The Laws of War in American History

November 17, 2019

John Fabian Witt. Lincoln’s Code: The Laws of War in American History. New York, Simon & Schuster, 512pp., 2012, $32.

The press release for this book accurately summarizes its theme: “Yale Law professor John Fabian Witt masterfully charts the alternatively troubled and triumphant course of the development of the laws of war in America from the Founding to the cataclysm of the Civil War and on to the dawn of the modern era.” This period roughly translates from the French and Indian Wars to World War I, a period of about 150 years.

Witt teaches at both Yale Law School and its history department. He has written two previous books: Patriots and Cosmopolitans: Hidden Histories of American Law and The Accidental Republic: Crippled Workingmen, Destitute Widows, and the Remaking of American Law (he apparently likes long titles!).

Contrary to expectations, the book is not a legal dissertation, nor is it replete with legal terminology, Latin phrases and other mumbo jumbo. It is written in such a manner as to appeal to the lay reader. It traces attempts over the years to formulate some rules of “civilized warfare” (an oxymoron, if ever there was one!) that could be accepted, at least in theory, by warring parties. The writers who proposed such rules were generally European intellectuals and educators, rather than military men or politicians. The need for such guidelines was perhaps a reflection of competing nation-states vying for power and colonial possessions.

The rules were sometimes issued in book form or were incorporated into provisions of treaties. To a certain degree, they were “unwritten” and considered part of the common law that civilized nations came to expect. There were topics that needed addressing, such as the treatment of prisoners, protocols of flags of truce and terms of surrender, naval blockades, neutral shipping with or without contraband cargoes, guerrilla warfare, military tribunals versus civilian courts, protection of private property, status of non-combatants, foraging, executions of prisoners, unnecessary cruelty, permitted retaliation for perceived abuses of the rules of war, privateering, paroles and prisoner exchanges, etc. There was also the question of warfare with uncivilized people who acted by their own rules and customs, if any. Other overriding issues included the permissibility of excessive force as a humane measure to shorten conflicts, and how the perceived justice of ones cause impacts behavior or whether conflicts should be “no fault” with neither a right or a wrong side.

The “hero” of the book is Francis Lieber who, at the behest of Abraham Lincoln and General Halleck wrote a guidebook of rules for armies in the field which received wide distribution and came to be known as “General Orders No. 100” or “The Old One Hundred”. This was, according to Witt, “Lincoln’s Code”. It had a great influence and has been accepted by practically all of the Western powers since its publication, with periodic revisions reflecting new realities. During the Civil War, it contained various clauses related to slavery, such as the rights of slave-holders, use of slaves by Union forces, blacks in the military, etc. The book, as stated, covers the wide-ranging history of the rules of war, dealing with each conflict in our history (a seeming endless continuum). Accordingly, it is not wall-to-wall Lincoln, though Lieber’s code is the thread that holds everything together. However, given that Lincoln’s entire presidency was pre-occupied with the Civil War and the extirpation of slavery, a great deal of the text deals with that period. All the major cases and issues are dealt with, including the trial of Confederate privateers on the charge of piracy, the suspension of habeas corpus, military necessity and the Emancipation Proclamation, the extensive use of military trials, the Trent Affair, the arrest and trial of Vallandigham, the trial and execution of Captain Wirz, the problem of guerrilla combatants (Milligan), the Mankato uprising, the propriety of the military tribunal that tried the assassination conspirators, etc. It is thoroughly covered, although we think the questions attending the crimes of John Brown were given short shrift and merited a much deeper treatment. But, that said, there is a good deal of material that will interest the Lincoln buff.

The writing is good, although the author overuses the words “excoriated” and “spluttered”. He should have substituted some synonyms. However, please don’t think we are being overly critical of the author to the point that we are agitated and have trouble verbally expressing our displeasure.

In conclusion, this is an interesting work that deals in a thoughtful and insightful way with some key issues related to the Lincoln presidency. In covering the wide range of our history, largely through its military conflicts and personalities, it also manages to illuminate the American national character.