The Lieber Codes - NYTimes.com In October 1861, a legal scholar and historian named Francis Lieber presented the first in a series of lectures entitled "The Laws and Usages of War" at the Columbia College's new law school in New York City. Though the talks, which ran through the following March, were long and often rambling, they drew up to 100 people each and afterward appeared in The New York Times and other newspapers around the country. The public, eager for insight into how the worsening war would and should be fought, devoured his every word. Lieber was an unlikely public intellectual. He had arrived in the United States from Prussia in 1827. Unable to secure a permanent teaching post at a Northern university, he had spent over 20 apparently uncomfortable years teaching at South Carolina College (now the University of South Carolina), where his decidedly unsympathetic views on states" rights and slavery made him an outlier among his Southern colleagues. His decision to relocate to New York City in 1857 proved fortuitous. Columbia College, in the midst of expanding its faculty, appointed him a professor of history and political science, and in 1860, the law school named him professor of political science. Lieber retained his affiliation with Columbia until his death in 1872. Lieber's popular lectures mirrored his belief that the laws of war needed to reflect the legitimacy of the combatants" war aims. Much of 19th-century thought defined a rigid set of rules with which to regulate armed conflict - the means - while devoting little if any consideration to the conflict's ends. In Lieber's calculus, ends could not be separated from means; the ends were the essential determinants of a military action's justification. Lieber's thinking aligned him with another, more famous mid-century Prussian theorist, Carl von Clausewitz. As the historian and legal scholar John Fabian Witt has noted, Clausewitz's theory "asked the statesman, the general, and the soldier to take the objectives of their conduct into account at all times." In the spring of 1862, Lieber renewed an acquaintance that would provide him with an unparalleled opportunity to put his theories into practice. While in St. Louis searching desperately for one of his sons, Hamilton, who had been wounded at Fort Donelson in February, Lieber turned to Union Gen. Henry Halleck for help. The two had met briefly 17 years earlier and found common ground in a shared distaste for the peace societies active in the 1840s. Halleck, a successful lawyer before the war, had himself earned a reputation as a political theorist when, in 1861, he published "International Law, or, Rules Regulating the Intercourse of States in Peace and War." After Halleck was named general in chief on July 23, 1862, Lieber sent him a letter congratulating him on his "high appointment" and alerting him that "I am now studying for myself the very important question of Guerrilleros." Halleck's response a week later solicited Lieber's views on guerrilla warfare, a topic he noted "has now become an important question in this country." The result was "Guerilla Parties Considered With Reference to the Laws and Usages of War," a 6,000-word report, replete with historical examples, which Lieber sent to Halleck in mid-August. The Union commander in chief responded enthusiastically, and almost immediately. I have hastily read your essay and highly approve it. I return it ... with an order for 5,000 copies. Lieber argued that three functional factors distinguished a soldier, who was entitled to all the protections of the laws of war, from a guerrilla, who was not: the presence of uniforms, an organized command structure and the capacity to manage prisoners of war. Such factors trumped the more traditional consideration of a formal commission from one of the belligerent parties. Halleck distributed Lieber's essay among his generals, many of whom embraced it immediately. The policies implicit in the document afforded Union field officers considerable discretion when handling enemy guerrillas; taken to its logical extreme, Lieber's formulation justified the summary execution for Confederate guerrilla fighters who fell into Union hands. While some Union commanders did carry out battlefield judgments, Lieber himself shied away from endorsing these acts, fearing they would initiate an endless cycle of retaliation. And although Lincoln came to endorse such executions, he did so reluctantly and more often than not commuted the death sentences when the opportunity presented itself. In addition to his work on guerrilla warfare, that same August Lieber prepared a memorandum at the request of Secretary of War Edwin M. Stanton on the "military use of colored persons." In it he argued that "the acknowledged law of war" admitted the use of slaves in armies. Lieber also maintained a regular correspondence with Halleck and with several members of the Lincoln administration throughout the late summer and fall of 1862. As the date for Lincoln's issuance of the Emancipation Proclamation drew ever closer, the questions of slavery, its relationship to the laws of war and how the newly freed slaves would act became increasingly fraught subjects. Confederate leaders, who had long felt the threat of potential slave revolts, were beside themselves at Lincoln's decision to recruit and train African-American troops. Jefferson Davis ordered that former slaves fighting for the Union and their officers were to be treated as criminals and prosecuted by state authorities. Even those presumably inclined toward emancipation urged caution. Charles Francis Adams Jr., a captain in the 1st Massachusetts Cavalry and the son of Lincoln's minister to Britain, warned that "emancipation would force millions of irresponsible barbarians into society," where they would exact "just vengeance for their own wrongs." In November Lieber wrote Halleck to urge the appointment of "a committee ... to draw up a code ... in which certain acts and offences (under the Law of War) ought to be defined and, where necessary, the punishment be stated." Scarcely a month later Halleck and Stanton called Lieber to Washington, where, on Dec. 12, they appointed him to work with a small board of advisers to revise the 1806 Articles of War. Lieber's fellow committee members included Maj. Gen. Ethan Allen Hitchcock, the Union's commissioner for prisoner exchanges; Maj. Gen. George Cadwalader, one of the first Union officers to question how the Union was to respond to slave uprisings in the South; Maj. Gen. George L. Hartstuff, who had been wounded at Antietam; and Brig. Gen. John Henry Martindale, the military governor of Washington. The four left Lieber alone to draft the new set of instructions for the Union Army. He immediately plunged into the task, spending Christmas in Washington and returning to New York to complete the work in January 1863. Hitchcock and his colleagues basically accepted Lieber's work without change. Only Halleck engaged in any meaningful editing, combing through the more than a dozen articles that addressed some aspect of slavery, emancipation and the arming of former slaves to ensure that nothing in the new code undermined Lincoln's emancipation policies. On April 24, 1863, the president issued the finished code as Instructions for the Government of Armies of the United States in the Field, General Order No. The code's 157 articles, broken into 10 sections, addressed a staggering array of topics: from martial law to the protection of persons, religion and the arts and sciences; from the treatment of deserters, women, prisoners of war, partisans, scouts, spies and captured messengers to prisoner exchanges and flags of truce; from battlefield booty to the parole, armistice and assassinations. Lieber, who had consistently decried the "namby-pamby" views of warfare he ascribed to many Enlightenment jurists, embraced (as did Lincoln) what John Witt has characterized as "tough humanitarianism." The basic foundation of his code, Witt contends, was that "virtually any use of force was permissible if required by military necessity," which produced "both a broad limit on war's violence and a robust license to destroy." The best wars lasted the shortest amount of time. "The more vigorously wars are pursued," wrote Lieber in the code, "the better it is for humanity. Sharp wars are brief. The reaction to Lieber's code, particularly those articles addressing slavery, fell out along predictable lines. Confederate Secretary of War James Seddon fulminated that these articles were intended "to subvert by violence the social system and domestic relations of the negro slaves in the Confederacy and to add to the calamities of war a servile insurrection." Supporters of the Lincoln administration saw the code instead as a complement to the Emancipation Proclamation and a means of preventing the sort of slave insurrection that its critics predicted. More immediately, it represented a response to Southern threats to prosecute black soldiers and their white officers as criminals. Historians disagree about the meaning of Lieber's code for the remaining years of the Civil War. Surely it provided a starting point for negotiation on many issues, and it secured the moral high ground for Union leaders denouncing such Confederate depredations as the massacre of black troops at Fort Pillow. While many critics might well contend that Gen. William Tecumseh Sherman's 1864 campaign gave the lie to any ameliorative impact of the Lieber Code on the Union Army, his actions might better be viewed as, in John Witt's analysis, "the practical embodiment of the code's unsettling critique of the orthodox laws of war." Of equal importance is the long afterlife enjoyed by Lieber's work - it became a core text in the modern laws of war recognized worldwide, and many elements of his code continue to inform our public debate how best to respond to a new form of warfare in both an effective and a moral manner. Sources: Richard Shelly Hartigan, "Military Rules, Regulations and the Code of Wear: Francis Lieber and the Certification of Conflict"; Stephen C. Neff, "Justice in Blue and Gray: A Legal History of the Civil War"; John Fabian Witt, "Lincoln's Code: The Laws of War in American History." Rick Beard, an independent historian, is senior adviser for the Pennsylvania Civil War 150 and volunteer coordinator of the Civil War Sesquicentennial for the American Association for State and Local History.